C&S/Brunswick
Final Agreement
AMENDED AND RESTATED
AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
THE CITIZENS AND SOUTHERN CORPORATION
CITIZENS AND SOUTHERN GEORGIA CORPORATION
THE CITIZENS AND SOUTHERN NATIONAL BANK
AND
FIRST FEDERAL SAVINGS BANK OF BRUNSWICK, GEORGIA
AMENDED AND RESTATED AGREEMENT
AND PLAN OF REORGANIZATION
TABLE OF CONTENTS
Parties..................................................................... 1
Preamble.................................................................... 1
ARTICLE ONE
DEFINITIONS
1.1 Agreement.......................................................... 2
1.2 Articles of Combination............................................ 3
1.3 Avantor............................................................ 3
1.4 Avantor Agreements................................................. 3
1.5 Avantor Base Period Trading Price.................................. 3
1.6 Avantor Common Stock............................................... 3
1.7 Avantor Reorganization............................................. 3
1.8 Base Period Trading Price.......................................... 3
1.9 Base Period Trading Price Limitations.............................. 3
1.10 BHC Act............................................................ 3
1.11 Brunswick Common Stock............................................. 3
1.12 Brunswick Companies................................................ 3
1.13 Brunswick Financial Statements..................................... 3
1.14 Brunswick Interim Common Stock..................................... 3
1.15 Brunswick Options.................................................. 3
1.16 Brunswick Reports.................................................. 4
1.17 Brunswick Subsidiaries............................................. 4
1.18 C&S Common Stock................................................... 4
1.19 C&S Companies...................................................... 4
1.20 C&S Financial Statements........................................... 4
1.21 C&S Georgia Common Stock........................................... 4
1.22 C&S Subsidiaries................................................... 4
1.23 Closing............................................................ 4
1.24 Comptroller........................................................ 4
1.25 CSNB Common Stock.................................................. 4
1.26 Effective Date..................................................... 4
1.27 ERISA.............................................................. 4
1.28 Exhibits........................................................... 4
1.29 FDIC............................................................... 4
1.30 Federal Reserve Board.............................................. 5
1.31 GAAP............................................................... 5
1.32 Georgia Commissioner............................................... 5
1.33 Internal Revenue Code.............................................. 5
1.34 Merger............................................................. 5
1.35 NASDAQ............................................................. 5
1.36 1933 Act........................................................... 5
1.37 1934 Act........................................................... 5
1.38 OTS................................................................ 5
(i)
1.39 Party............................................................... 5
1.40 Pension Plan........................................................ 5
1.41 Per Share Purchase Price............................................ 5
1.42 Plan of Merger...................................................... 6
1.43 Proxy Statement..................................................... 6
1.44 Registration Statement.............................................. 6
1.45 Regulatory Authorities.............................................. 6
1.46 SAIF................................................................ 7
1.47 SEC................................................................. 7
1.48 Sovran.............................................................. 7
1.49 Stockholders' Meeting............................................... 7
1.50 Subsidiaries........................................................ 7
ARTICLE TWO
TERMS OF TRANSACTIONS
2.1 Merger.............................................................. 7
2.2 Effect of Merger.................................................... 7
2.3 Manner of Converting Shares......................................... 8
2.4 Assumption of Stock Options......................................... 9
ARTICLE THREE
CLOSING, EFFECTIVE DATE AND
EXCHANGE OF STOCK CERTIFICATES
3.1 Time and Place of Closing............................................ 10
3.2 Effective Date....................................................... 10
3.3 Exchange of Stock Certificates....................................... 10
3.4 Dissenting Stockholders.............................................. 11
3.5 Rights of Holders of Brunswick Common Stock.......................... 12
ARTICLE FOUR
REPRESENTATIONS AND WARRANTIES OF BRUNSWICK
4.1 Organization, Standing and Authority.................................. 12
4.2 Capital Stock......................................................... 13
4.3 Brunswick Subsidiaries................................................ 13
4.4 Authority............................................................. 14
4.5 Financial Statements.................................................. 15
4.6 Absence of Undisclosed Liabilities.................................... 15
4.7 Tax Matters........................................................... 16
4.8 Loans................................................................. 16
4.9 Allowance for Possible Loan Losses.................................... 16
4.10 Properties............................................................ 16
4.11 Compliance with Laws.................................................. 17
4.12 Employee Benefit Plans................................................ 17
4.13 Material Contracts.................................................... 19
4.14 Material Contract Defaults............................................ 20
4.15 Legal Proceedings..................................................... 20
(ii)
4.16 Absence of Certain Changes or Events.................................. 20
4.17 Reports............................................................... 20
4.18 Statements True and Correct........................................... 21
ARTICLE FIVE
COVENANTS AND AGREEMENTS OF BRUNSWICK
5.1 Conduct of Business--Negative Covenants............................... 22
5.2 Conduct of Business--Affirmative Covenants............................ 23
5.3 Adverse Changes in Condition.......................................... 23
5.4 Cooperation........................................................... 24
5.5 Investigation and Confidentiality..................................... 24
5.6 Reports............................................................... 24
5.7 Current Information................................................... 25
5.8 Dividends............................................................. 25
5.9 Capital Stock......................................................... 25
5.10 Agreement of Affiliates............................................... 25
5.11 Certain Actions....................................................... 26
5.12 Agreement as to Efforts to Consummate................................. 26
5.13 Related Agreements.................................................... 27
5.14 Escrow Account........................................................ 27
ARTICLE SIX
REPRESENTATIONS AND WARRANTIES OF C&S, C&S GEORGIA AND CSNB
6.1 Organization, Standing and Authority of C&S........................... 27
6.2 Capital Stock......................................................... 27
6.3 Organization and Standing of C&S Georgia.............................. 28
6.4 Organization and Standing of CSNB..................................... 28
6.5 Authority............................................................. 28
6.6 Financial Statements.................................................. 29
6.7 Absence of Undisclosed Liabilities.................................... 30
6.8 Compliance With Laws.................................................. 30
6.9 Legal Proceedings..................................................... 31
6.10 Absence of Certain Changes or Events.................................. 31
6.11 Reports............................................................... 31
6.12 Statements True and Correct........................................... 31
ARTICLE SEVEN
COVENANTS OF C&S, C&S GEORGIA AND CSNB
7.1 Conduct of Business................................................... 32
7.2 Adverse Changes in Condition.......................................... 32
7.3 Investigation and Confidentiality..................................... 33
7.4 Reports............................................................... 33
7.5 Current Information................................................... 33
7.6 Organization of Brunswick Interim..................................... 34
7.7 Applications.......................................................... 34
7.8 Agreement as to Efforts to Consummate................................. 34
(iii)
ARTICLE EIGHT
ADDITIONAL AGREEMENTS
8.1 Registration Statement; Stockholder Approval.......................... 34
8.2 Tax Ruling; Tax Opinion............................................... 35
8.3 Press Releases........................................................ 35
8.4 Avantor Reorganization; Substitution of Avantor Common
Stock............................................................... 35
ARTICLE NINE
CONDITIONS PRECEDENT TO THE OBLIGATIONS TO CONSUMMATE
9.1 Representations and Warranties........................................ 37
9.2 Performance of Agreements and Covenants............................... 38
9.3 Certificates.......................................................... 38
9.4 Corporate Authorization............................................... 38
9.5 Stockholder Approvals................................................. 38
9.6 Consents and Approvals................................................ 39
9.7 Legal Proceedings..................................................... 39
9.8 Material Adverse Change............................................... 39
9.9 Letters Concerning Claims............................................. 40
9.10 Opinions of Counsel................................................... 40
9.11 Accountants' Letters.................................................. 40
9.12 Tax Matters........................................................... 40
9.13 Letter from Investment Banking Firm................................... 41
9.14 Registration Statement................................................ 41
ARTICLE TEN
TERMINATION
10.1 Termination........................................................... 41
10.2 Effect of Termination................................................. 42
10.3 Survival of Representations, Warranties and Covenants................. 42
ARTICLE ELEVEN
MISCELLANEOUS
11.1 Expenses.............................................................. 42
11.2 Brokers and Finders................................................... 43
11.3 Entire Agreement...................................................... 43
11.4 Amendments............................................................ 43
11.5 Waivers............................................................... 44
11.6 No Assignment......................................................... 44
11.7 Specific Enforceability............................................... 44
11.8 Notices............................................................... 44
11.9 Governing Law......................................................... 45
11.10 Counterparts.......................................................... 45
(iv)
LIST OF EXHIBITS
FIRST FEDERAL SAVINGS BANK OF BRUNSWICK, GEORGIA
C&S -The Citizens and Southern Corporation
Brunswick -First Federal Savings Bank of Brunswick, Georgia
Exhibit Number Description
1. Form of Plan of Merger. (SS1.42).
2. Agreement of each affiliate of Brunswick. (SS5.10).
3. Agreement of directors and officers of Brunswick. (SS5.11).
4. Letter regarding claims of each director, the president and
each vice president of Brunswick. (SS9.9).
5. Legal opinion of Xxxxxx & Bird. (SS9.10).
6. Legal opinion of Smith, Mackinnon, Xxxxxxx & Xxxxxxxxxxxx,
P.A. (SS9.10).
7. Cold comfort letter of Xxxxxx Xxxxxxxx & Co. (SS9.11).
(v)
LIST OF SCHEDULES
C&S -The Citizens and Southern Corporation
Brunswick -First Federal Savings Bank of Brunswick, Georgia
Schedule Number
4.2 Certain information with respect to the outstanding stock options of
Brunswick. (SS4.2).
4.3 Certain information with respect to the Subsidiaries of Brunswick.
(SS4.3).
4.5 Audited Consolidated Statements of Financial Condition of Brunswick at
September 30, 1987, 1986 and 1985, and the related Consolidated
Statements of (i) Income, (ii) Stockholders' Equity and (iii) Changes in
Financial Position for the fiscal years then ended and the notes thereto
as reported upon by Xxxxxx Xxxxxxxx & Co., independent certified public
accountants, together with unaudited Consolidated Statements of Financial
Condition of Brunswick at December 31, 1987, and the related Consolidated
Statements of (i) Income, (ii) Stockholders' Equity and (iii) Changes in
Financial Position for the three- month period then ended and the notes
thereto. (SS4.5).
4.12 List of employee benefit plans maintained by Brunswick. (SS4.12).
4.13 Schedule of other material contracts of Brunswick including any material
agreement, arrangement or commitment not cancellable by Brunswick without
penalty, any agreement, arrangement or commitment relating to the
appointment, election or retention of any director or officer, any
contract, agreement or any understanding with any labor union or any
contract or agreement or amendment thereto that would be required to be
filed with the OTS as an exhibit to a Form 10-K and that has not been
filed as an exhibit to Brunswick's Form 10-K for 1987 or in a report
filed with the OTS under the Securities Exchange Act of 1934, as amended.
(SS4.13).
6.6 Audited Consolidated Statements of Condition of C&S at December 31, 1987,
1986 and 1985, and the related Consolidated Statements of (i) Income,
(ii) Stockholders' Equity and (iii) Changes in Financial Position for the
years then ended and the notes thereto as reported upon by Ernst &
Whinney, independent certified public accountants. (SS6.6).
(vi)
AMENDED AND RESTATED
AGREEMENT AND PLAN OF REORGANIZATION
THIS AMENDED AND RESTATED AGREEMENT AND PLAN OF REORGANIZATION
("Agreement") is initially made and entered into as of the 19th day of April,
1988, and amended and restated as the 20th day of November, 1989, by and among
THE CITIZENS AND SOUTHERN CORPORATION, a corporation organized and existing
under the laws of the State of Georgia with its principal office located in
Atlanta, Xxxxxx County, Georgia ("C&S"); CITIZENS AND SOUTHERN GEORGIA
CORPORATION, a corporation organized and existing under the laws of the State of
Georgia with its principal office located in Atlanta, Xxxxxx County, Georgia
("C&S Georgia"); THE CITIZENS AND SOUTHERN NATIONAL BANK, a national banking
association organized and existing under the laws of the United States with its
main office located in Savannah, Chatham County, Georgia ("CSNB"); and FIRST
FEDERAL SAVINGS BANK OF BRUNSWICK, GEORGIA, a federally chartered stock savings
bank organized and existing under the laws of the United States with its
principal office located in Brunswick, Xxxxx County, Georgia ("Brunswick").
PREAMBLE
The Boards of Directors of C&S, C&S Georgia, CSNB and Brunswick are of
the opinion that it is advisable for the welfare and best interests of the
parties to this Agreement and their respective stockholders that C&S acquire all
of the outstanding shares of Brunswick common stock in exchange for the issuance
of C&S common stock, all on the terms and conditions set forth in this
Agreement. If the transactions contemplated by this Agreement are consummated,
the stockholders of Brunswick will thereby become stockholders of C&S.
At the time this Agreement was originally entered into on April 19,
1988, the proposed acquisition of Brunswick by C&S was structured in a manner
that contemplated the conversion of Brunswick from a federal stock savings bank
to a state chartered savings and loan association would then be acquired by C&S
by means of the merger of Brunswick as a state chartered savings and loan
association into and with CSNB. As a result of the enactment of the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA"), the
acquisition of Brunswick by C&S as originally contemplated by this Agreement is
no longer permissible and thus the parties believe it is in the best interest of
each of the parties and their respective stockholders to restructure the
transaction in a manner that would permit the acquisition of Brunswick by C&S
under the provisions of the newly enacted FIRREA. Accordingly, C&S, C&S Georgia,
CSNB and Brunswick are amending and restating this Agreement as of November 20,
1989, to reflect the restructuring of the acquistion of Brunswick by C&S in a
manner that comports with the provisions of FIRREA. The acquisition of Brunswick
by C&S will now be accomplished by means of the organization of an interim
federal stock savings bank to be known as "Interim Federal Savings Bank of
Brunswick" ("Brunswick Interim") as a wholly owned subsidiary of C&S and the
merger of Brunswick Interim with and into Brunswick. Upon consummation of the
merger of Brunswick Interim
with and into Brunswick, Brunswick will be the surviving entity and will
continue to conduct its business and operations after the merger as a wholly
owned subsidiary of C&S and as a federal stock savings bank under the name "The
Citizens and Southern Savings Bank, F.A."
In addition to amending and restating this Agreement for the purpose of
reflecting the restructuring of the acquisition of Brunswick as a result of the
enactment of FIRREA, C&S has entered into an Amended and Restated Agreement and
Plan of Reorganization, dated as of September 26, 1989, and amended and restated
as of October 31, 1989, pursuant to which C&S and Sovran Financial Corporation
have agreed to become wholly owned subsidiaries of Avantor Financial Corporation
("Avantor"), a newly organized Delaware corporation. The transactions
contemplated by this Agreement will not be consummated until the Avantor
reorganization is consummated or terminated in accordance with the terms of the
Avantor agreements. If the Avantor reorganization is consummated, then in lieu
of receiving shares of C&S common stock for their shares of Brunswick common
stock, stockholders of Brunswick will receive shares of Avantor common stock. In
the event the Avantor reorganization is not consummated, the obligations of C&S
to consummate the proposed acquisition of Brunswick will continue in accordance
with the terms of this Agreement.
For federal income tax purposes, the Parties to this Agreement intend
that the acquisition by C&S of all of the outstanding shares of the common stock
of Brunswick in exchange solely for the shares of voting common stock of C&S as
contemplated herein, will constitute a reorganization within the meaning of
Section 368(b) of the Internal Revenue Code of 1986, as amended.
The transactions described in this Agreement are subject to the
approval of the stockholders of Brunswick, the sole stockholder of Brunswick
Interim, the Board of Governors of the Federal Reserve System, the Office of
Thrift Supervision and the Commissioner of the Department of Banking and Finance
of the State of Georgia, and the satisfaction of certain other conditions
described in this Agreement.
In consideration of the above, the mutual warranties, representations,
covenants and agreements set forth herein, the Parties agree as follows:
ARTICLE ONE
DEFINITIONS
As used in this Agreement and in any amendments hereto, the following
terms shall have the following meanings respectively:
1.1 "Agreement" shall mean this Amended and Restated Agreement and Plan
of Reorganization.
1.2 "Articles of Combination" shall mean the Articles of Combination to
be executed by Brunswick and Brunswick Interim and filed with the OTS as
contemplated by Section 2.1 of this Agreement.
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1.3 "Avantor" shall mean Avantor Financial Corporation, a newly
organized Deleware corporation that is to serve as the parent holding compnay of
C&S and Sovran.
1.4 "Avantor Agreements" shall mean the Amended and Restated Agreement
and Plan of Reorganization, dated as of September 26, 1989, and amended and
restated as of October 31, 1989, by and between C&S and Sovran and the related
(i) Plan of Merger of C&S Merger Subsidiary, Inc. into and with C&S and (ii)
Plan of Share Exchange of Sovran and Avantor.
1.5 "Avantor Base Period Trading Price" shall mean the average closing
price of a share of Avantor Common Stock as reported by the New York Stock
Exchange for the twenty (20) trading days immediately preceding the five (5)
consecutive calendar days immediately preceding the Effective Date.
1.6 "Avantor Common Stock" shall mean the $1.00 par value common stock
of Avantor to be issued to the stockholders of C&S and Sovran upon consummation
of the Avantor Reorganization.
1.7 "Avantor Reorganization" shall mean the proposed reorganization of
C&S and Sovran pursuant to which C&S and Sovran will become wholly owned
subsidiaries of Avantor in accordance with the terms of the Avantor Agreements.
1.8 "Base Period Trading Price" shall mean the average closing price of
a share of C&S Common Stock as reported by the New York Stock Exchange for the
twenty (20) trading days immediately preceding the five (5) consecutive calendar
days immediately preceding the Effective Date.
1.9 "Base Period Trading Price Limitations" shall have the meaning set
forth in Section 2.3 of this Agreement.
1.10 "BHC Act" shall mean the federal Bank Holding Company Act of 1956,
as amended.
1.11 "Brunswick Common Stock" shall mean the $1.00 par value commmon
stock of Brunswick.
1.12 "Brunswick Companies" shall mean collectively, Brunswick and all
Brunswick Subsidiaries.
1.13 "Brunswick Financial Statements" shall mean the financial
statements of Brunswick and Subsidiaries described in Section 4.5 of this
Agreement.
1.14 "Brunswick Interim Common Stock" shall mean the $1.00 par value
Common Stock of Brunswick Interim.
1.15 "Brunswick Options" shall have the meaning set forth in Section
2.4 of this Agreement.
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1.16 "Brunswick Reports" shall have the meaning set forth in Section
4.17 of this Agreement.
1.17 "Brunswick Subsidiaries" shall mean the Subsidiaries of Brunswick.
1.18 "C&S Common Stock" shall mean the $2.50 par value common stock
of C&S.
1.19 "C&S Companies" shall mean collectively, C&S and all C&S
Subsidiaries.
1.20 "C&S Financial Statements" shall mean the financial statements of
C&S and Subsidiaries described in Section 6.6 of this Agreement.
1.21 "C&S Georgia Common Stock" shall mean the $1.00 par value common
stock of C&S Georgia.
1.22 "C&S Subsidiaries" shall mean the Subsidiaries of C&S.
1.23 "Closing" shall mean the closing to be held pursuant to Section
3.1 of this Agreement at which the Parties shall deliver certain documents and
instruments and satisfy certain conditions precedent to consummation of the
Merger.
1.24 "Comptroller" shall mean the Office of the Comptroller of the
Currency.
1.25 "CSNB Common Stock" shall mean the $2.50 par value common stock of
CSNB.
1.26 "Effective Date" shall mean the date and time on which the Merger
contemplated by this Agreement becomes effective as defined in Section 3.2 of
this Agreement pursuant to the laws of the United States.
1.27 "ERISA" shall mean Public Law No. 93-406, the Employee Retirement
Income Security Act of 1974, as amended.
1.28 "Exhibits" 1 through 7, inclusive, and the Schedules referenced
herein, shall mean the respective Exhibits and Schedules so marked, each of
which has been initialed for identification by an officer of C&S and an officer
of Brunswick and bound sets of which have been delivered to the respective
Parties. Such Exhibits and Schedules 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.
1.29 "FDIC" shall mean the Federal Deposit Insurance Corporation.
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1.30 "Federal Reserve Board" shall mean the Board of Governors of the
Federal Reserve System.
1.31 "GAAP" shall mean generally accepted accounting principles.
1.32 "Georgia Commissioner" shall mean the commissioner of the
Department of Banking and Finance of the State of Georgia.
1.33 "Internal Revenue Code" shall mean the Internal Revenue Code of
1986, as amended.
1.34 "Merger" shall mean the merger of Brunswick Interim into and with
Brunswick as provided in Section 2.1 of this Agreement and as described in the
Plan of Merger.
1.35 "NASDAQ" shall mean the National Association of Securities Dealers
Automated Quotation System.
1.36 "1933 Act" shall mean the Securities Act of 1933, as amended.
1.37 "1934 Act" shall mean the Securities Exchange Act of 1934, as
amended.
1.38 "OTS" shall mean the Office of Thrift Supervision, and its
predecessor, the Federal Home Loan Bank Board.
1.39 "Party" shall mean either C&S, C&S Georgia and CSNB, on the one
hand, or Brunswick, on the other hand, and "Parties" shall mean C&S, C&S
Georgia, CSNB and Brunswick.
1.40 "Pension Plan" shall mean any employee pension benefit plan as
such term is defined in Section 3(2) of ERISA which is maintained by Brunswick.
1.41 "Per Share Purchase Price" shall mean an amount equal to (i)$16.80
PLUS (ii) an amount (rounded to the nearest cent) equal to the increase in book
value (as determined in accordance with GAAP as applied to savings banks) per
share of Brunswick Common Stock for each calendar month (prorated for any
portion thereof) that occurs between September 1, 1988, and the Effective Date.
Subject to the following sentence, the per share increase in book value of
Brunswick Common Stock that occurs between September 1, 1988, and the Effective
Date shall equal the quotient obtained by dividing (i) the aggregate increase
in book value (as determined in accordance with GAAP as applied to savings
banks) during such time period by (ii) the total number of shares of Brunswick
Common Stock issued and outstanding on the Effective Date. In order for the Per
Share Purchase Price to be determined prior to the Effective Date, the Parties
agree that for the purposes of determining the aggregate increase in book value
of Brunswick Common Stock for the month during which the Effective Date occurs
(or the month immediately preceding the
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Effective Date if the Effective Date occurs on the first of a month), the
aggregate increase in book value (as determined in accordance with GAAP as
applied to savings banks) of Brunswick Common Stock for the month during which
the Effective Date occurs (or the month immediately preceding the Effective Date
if the Effective Date occurs on the first of a month) shall equal the average
monthly aggregate increase in book value of Brunswick Common Stock for each of
the calendar months from October 1, 1987, through and including the month
immediately preceding the month during which the Effective Date occurs (or the
second month immediately preceding the month during which the Effective Date
occurs if the Effective Date occurs on the first of a month). In determining the
aggregate increase in book value (as determined in accordance with GAAP as
applied to savings banks) of Brunswick Common Stock, the following expenses
incurred by Brunswick or on its behalf in connection with the transactions
contemplated by this Agreement and the Plan of Merger shall be disregarded for
purposes of the calculation: (i) 50% of any and all accounting and legal fees
directly related to the transactions contemplated by this Agreement; and (ii)
any and all investment banking fees directly related to the transactions
contemplated by this Agreement. In addition, in determining the book value (as
determined in accordance with GAAP as applied to savings banks) of Brunswick
Common Stock as of September 1, 1988, and the aggregate increase in book value
of Brunswick Common Stock from September 1, 1988, through the Effective Date,
any and all funds received by Brunswick in payment of the exercise price of any
Brunswick Options exercised on or after October 1, 1987, through and including
the Effective Date shall be excluded for purposes of the calculation. The
calculation of the per share increase in book value shall be determined by
Xxxxxx Xxxxxxxx & Co., independent certified public accountants of Brunswick,
subject to review by Ernst & Young, independent certified public accountants of
C&S, which absent error shall be binding upon the Parties.
1.42 "Plan of Merger" shall mean the Plan of Merger set forth in
Exhibit 1 relating to the Merger.
1.43 "Proxy Statement" shall mean the proxy statement-prospectus
included in the Registration Statement and mailed to the stockholders of
Brunswick in connection with the Stockholders' Meeting.
1.44 "Registration Statement" shall mean the Registration Statement on
Form S-4, or other appropriate form, filed with the SEC by C&S under the 1933
Act as provided in Section 8.1 of this Agreement, together with any amendment or
amendments to such registration statement, in connection with the transactions
contemplated by this Agreement.
1.45 "Regulatory Authorities" shall mean collectively, the Federal
Reserve Board, the Comptroller, the OTS, the FDIC, the Georgia Commissioner and
the SEC.
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1.46 "SAIF" shall mean the Savings Association Insurance Fund, and
its predecessor, the Federal Savings and Loan Insurance Corporation.
1.47 "SEC" shall mean the Securities and Exchange Commission.
1.48 "Sovran" shall mean Sovran Financial Corporation, a
corporation organized and existing under the laws of the Commonwealth of
Virginia and registered as a bank holding company under the BHC Act.
1.49 "Stockholders' Meeting" shall mean the meeting of the
stockholders of Brunswick held pursuant to Section 8.1 of this Agreement.
1.50 "Subsidiaries" shall mean all those corporations, associations or
other entities of which the entity in question owns or controls 5% or more of
the outstanding equity securities either directly or through an unbroken chain
of entities as to each of which 5% 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 which owns or operates an automated teller
machine interchange network and any such entity the equity securities of which
are owned or controlled in a fiduciary capacity.
ARTICLE TWO
TERMS OF TRANSACTIONS
2.1 MERGER. Subject to the terms of this Agreement and the Plan of Merger, on
the Effective Date, Brunswick Interim shall be merged into and with Brunswick in
accordance with the provisions of and with the effect provided in the
Homeowners' Loan Act of 1933, as amended, and the regulations thereunder.
Brunswick shall be the surviving savings bank resulting from the Merger and
shall continue to exist and to be governed by the laws of the United States as a
federal stock savings bank operating under the name "The Citizens and Southern
Savings Bank, F.A.". The Merger shall be consummated pursuant to the terms of
this Agreement and the Plan of Merger, in the form of Exhibit 1, both of which
have been approved and adopted to the extent necessary by the Boards of
Directors of C&S, C&S Georgia, CSNB and Brunswick and which shall
be approved and adopted by the Board of Directors of Brunswick Interim upon the
organization of Brunswick Interim. The Merger shall be effected by filing the
Plan of Merger as part of the Articles of Combination with the OTS.
2.2 EFFECT OF MERGER.
(a) On the Effective Date, the separate existence and corporate organization of
Brunswick Interim shall cease, and Brunswick shall succeed to and shall have all
the rights, privileges, immunities and powers of both Brunswick Interim and
Brunswick. Brunswick shall thereupon and thereafter possess all the rights,
privileges, powers, immunities and franchises of a
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public as well as a private nature, of both Brunswick and Brunswick Interim.
All assets and property, real, personal, and mixed, and all debts due on
whatever account , including without limiting the generality of the foregoing,
shares or subscriptions to shares, all other choses in action, rights and
credits, and all and every other interest of or owned by or due or which would
inure to either Brunswick or Brunswick Interim shall immediately by operation of
law to be taken or deemed to be transferred to and vested in Brunswick without
any further conveyance, transfer, act or deed, and the title to any real estate
or any interest therein vested in either Brunswick or Brunswick Interim shall
not revert or be in any way impaired by reason of the Merger. Brunswick shall be
deemed to be a continuation of the entity of each constituent association, the
rights and obligations of which shall succeed to such rights and obligations and
the duties and liabilities connected therewith, and shall thenceforth be
responsible and liable for all the liabilities and obligations of Brunswick
Interim, and any claim existing or action or proceeding pending by or against
Brunswick may be prosecuted as if the Merger had not taken place. Neither the
rights of creditors nor any liens upon the property of Brunswick Interim shall
be impaired by the Merger.
(b) All savings accounts and deposits of Brunswick Interim shall be and
continue to be saving accounts and deposits of Brunswick, without change in
their respective terms, maturity, minimum required balances or withdrawal value.
As of the Effective Date, each saving account or deposit of Brunswick Interim
shall continue to be considered for dividend or interest purposes as a saving
account or deposit of Brunswick from the time said savings account or deposit
was open in Brunswick Interim and at all times thereafter until such account or
deposit ceases to be a saving account or deposit of Brunswick.
(c) The liquidation account of Brunswick established in connection with its
conversion from a federal mutual savings bank to a federal stock savings bank
and in existence as of the Effective Date shall be unaffected by the Merger and
shall continue in Brunswick to the same extent, character and amount as it
existed in Brunswick immediately prior to the Merger.
2.3 MANNER OF CONVERTING SHARES. All of the shares of CSNB Common
Stock, C&S Georgia Common Stock and C&S Common Stock issued and outstanding on
the Effective Date shall remain issued and outstanding after the Effective Date
and shall be unaffected by the Merger. Each of the shares of Brunswick Interim
Common Stock issued and outstanding on the Effective Date shall be converted
into one (1) share of Brunswick Common Stock. The manner and basis of converting
the shares of the capital stock of Brunswick into shares of C&S Common Stock
upon consummation of the Merger shall be as follows:
(a) EXCHANGE RATIO. Except as otherwise provided in this Section 2.3, each
share of Brunswick Common Stock issued and outstanding on the Effective Date
(other than treasury shares) shall, as of the Effective Date, by virtue of the
Merger and without any action on the part of the holder thereof, be converted
into and represent the right to receive the number of
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shares of C&S Common Stock determined by dividing the Per Share Purchase Price
by the Base Period Trading Price; provided, however, that for purposes of this
calculation, the Base Period Trading Price shall be deemed to equal (i) $18.84
in the event the Base Period Trading Price is less than $18.84 or (ii) $31.40 in
the event the Base Period Trading Price is greater than $31.40 (collectively,
$18.84 and $31.40 are referred to as the "Base Period Trading Price
Limitations").
(b) ANTI-DILUTION PROVISIONS. In the event C&S changes the number of shares of
C&S Common Stock issued and outstanding prior to the Effective Date as a result
of a stock split, stock dividend, or similar recapitalization, (i) the Base
Period Trading Price Limitations shall be adjusted to appropriately adjust the
ratio under which shares of Brunswick Common Stock will be converted into and
exchanged for shares of C&S Common Stock pursuant to Section 2.3 (a) of this
Agreement and (ii) if necessary, the anticipated Effective Date shall be
postponed for an appropriate period of time agreed upon by the Parties in order
for the Base Period Trading Price to reflect the market effect of such stock
split, stock dividend or similar recapitalization.
(c) DISSENTING STOCKHOLDERS OF BRUNSWICK . Any holder of shares of Brunswick
Common Stock who complies with the provisions of 12 C.F.R. SS552.14 with
respect to dissenting stockholders shall be entitled to receive the value of
such shares in cash (to be paid from the escrow account established by Brunswick
prior to the Effective Date pursuant to Section 5.14 of this Agreement)
calculated and determined pursuant to the applicable provisions of 12 C.F.R.
SS552.14; provided, however, that no such payment shall be made to any
dissenting stockholder unless and until such dissenting stockholder has
surrendered to C&S the certificate or certificates representing the shares for
which payment is being made.
(d) TREASURY SHARES. Any and all shares of Brunswick Common Stock held as
treasury shares by Brunswick shall be cancelled and retired on the Effective
Date, and no consideration shall be issued in exchange therefor.
(e) FRACTIONAL SHARES. No fractional shares of C&S Common Stock will be issued
as a result of the Merger. In lieu of the issuance of fractional shares pursuant
to Section 2.3 (a) of this Agreement, cash adjustments (without interest) based
upon the Base Period Trading Price will be paid to the holders of Brunswick
Common Stock in respect of any fraction of a share that would otherwise be
issuable.
2.4 ASSUMPTION OF STOCK OPTIONS. On the Effective Date, C&S shall
assume the stock options granted by Brunswick pursuant to the Brunswick Stock
Option Plan referred to in Section 4.2 of this Agreement which are outstanding
on the Effective Date, whether or not exercisable ("Brunswick Options"). Each
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such Brunswick Option so assumed shall continue to be an issued and outstanding
stock option in accordance with its terms and with the terms of the Brunswick
Stock Option Plan; provided, however, that (i) from and after the Effective
Date, each such Brunswick Option may be exercised solely for shares of C&S
Common Stock, (ii) the number of whole shares of C&S Common Stock subject to
each such Brunswick Option shall be equal to the number of shares of Brunswick
Common Stock subject to such Brunswick Option immediately prior to the Effective
Date times the quotient used in Section 2.3(a) of this Agreement for the
conversion on the Effective Date of each share of Brunswick Common Stock into
C&S Common Stock, rounded down to the nearest whole share, and (iii) the per
share exercise price under each such Brunswick Option shall be adjusted by
dividing the per share exercise price by the quotient used in Section 2.3 (a) of
this Agreement (rounded to the nearest cent); provided further, however, that in
the case of any Brunswick Option which is an "incentive stock option" as defined
in Section 422A of the Internal Revenue Code, the excess of the aggregate fair
market of the C&S Common Stock subject to such Incentive Stock Option over the
aggregate adjusted price of such option shall not exceed the excess of the
aggregate fair market value (determined immediately prior to the Effective Date)
of the Brunswick Common Stock (determined on the basis of the Per Share Purchase
Price) subject to such option over the aggregate unadjusted exercise price of
such option.
ARTICLE THREE
CLOSING, EFFECTIVE DATE, AND EXCHANGE OF STOCK CERTIFICATES
3.1 TIME AND PLACE CLOSING. The Closing will take place at 11:00
A.M., Atlanta, Georgia time, on the Effective Date, or at such other time as the
Parties may mutually agree. The place of Closing will be at the principal
offices of C&S, The Citizens and Southern National Bank Building, 00 Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxx 00000 or such other place as may be mutually agreed
upon by the Parties.
3.2 EFFECTIVE DATE. The Merger shall become effective on the date and
at the time of endorsement of the Articles of Combination filed with the OTS
or on such other date that the OTS declares the Merger effective. Unless
otherwise mutually agreed upon in writing by the Parties, the Effective Date
shall be as soon as practicable following the date that all of the conditions
precedent specified in this Agreement have been satisfied or waived by the Party
or Parties permitted to do so.
3.3 EXCHANGE OF STOCK CERTIFICATES.
(a) As soon as practicable after the Effective Date but in no
event later than two (2) business days after the Effective Date, a form of
transmittal letter ("Transmittal Letter") pursuant to which each holder of
shares of Brunswick Common Stock may transmit certificates representing shares
of Brunswick Common Stock in exchange for the consideration provided in
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Section 2.3 of this Agreement, and any other appropriate materials, shall be
mailed by C&S or the exchange agent selected by C&S, to each holder of record of
Brunswick Common Stock as of the Effective Date.
(b) After the Effective Date, each holder of shares of Brunswick
Common Stock issued and outstanding on the Effective Date (other than shares
held by dissenting stockholders) shall surrender the certificate or certificates
representing such shares, together with a properly completed Transmittal Letter,
to the exchange agent selected by C&S and shall promptly upon surrender receive
in exchange therefor the consideration provided in Section 2.3 of this
Agreement. The certificate or certificates of Brunswick Common Stock so
surrendered shall be duly endorsed as C&S or the exchange agent may require. To
the extent required by Section 2.3 (e) of this Agreement, each holder of shares
of Brunswick Common Stock issued and outstanding on the Effective Date also
shall receive, upon surrender of the certificate or certificates representing
such shares, cash, without interest, in lieu of any fractional share of C&S
Common Stock to which such holder may be entitled. C&S shall not be obligated
to deliver the consideration to which any former holder of Brunswick Common
Stock is entitled as a result of the Merger until such holder surrenders his
certificate or certificates representing the shares of Brunswick Common Stock
for exchange as provided in this section 3.3. In addition, no dividend or other
distribution payable to the holders of record of C&S Common Stock as of any time
subsequent to the Effective Date shall be paid to the holder of any certificate
representing shares of Brunswick Common Stock issued and outstanding on the
Effective Date until such holder surrenders such certificate for exchange as
provided in this Section 3.3. Upon surrender of the Brunswick Common Stock
certificate, however, both the C&S Common Stock certificates (together with all
such withheld dividends or other distributions) and any withheld cash payments
(without interest) shall be delivered and paid with respect to each share
represented by such certificate. In the event a holder of shares of Brunswick
Common Stock has lost such holder's certificate or certificates representing the
shares of Brunswick Common Stock held by such a holder, such holder shall comply
with the policies and procedures of the exchange agent for lost certificates
prior to receiving the consideration to which the holder is entitled as provided
in this Agreement. Subject to the provisions of Section 2.3 (c) and Section 3.4
of this Agreement, after the Effective Date each outstanding certificate that
represented shares of Brunswick Common Stock prior to the Effective Date shall
be deemed for all corporate purposes (other than the payment of dividends and
other distributions to which the former stockholders of Brunswick may be
entitled) to evidence only the right of the holder thereof to receive the
consideration in exchange therefor provided in this Agreement.
3.4 DISSENTING STOCKHOLDERS. Any holder of shares of Brunswick Common
Stock who complies with the provisions of 12 C.F.R. SS552.14 with respect to
dissenting stockholders shall not be entitled to receive the consideration
provided in Section 2.3 of this Agreement in exchange for his
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shares of Brunswick Common Stock. Each holder of shares of Brunswick Common
Stock who becomes entitled to payment for his shares pursuant to 12 C.F.R.
ss552.14 shall receive payment for such shares in cash (to be paid from the
escrow account established by Brunswick prior to the Effective Date pursuant to
Section 5.14 of this Agreement), but only after the value thereof shall have
been agreed upon or finally determined pursuant to the appropriate procedure. In
the event that after the Effective Date a dissenting stockholder of Brunswick
fails to perfect, or effectively withdraws or loses, his right to appraisal of
and payment for his shares, C&S shall issue and deliver the shares of C&S Common
Stock (and cash in lieu of any fractional share) to which such holder of shares
of Brunswick Common Stock is entitled under Section 2.3 of this Agreement upon
surrender by such holder of the certificate or certificates representing the
shares of Brunswick Common Stock held by him.
3.5 RIGHTS OF HOLDERS OF BRUNSWICK COMMON STOCK. The holder of a
certificate or certificates representing shares of Brunswick Common Stock issued
and outstanding on the Effective Date shall have no rights with respect to such
shares other than the right to surrender such certificate or certificates and
receive in exchange therefor the consideration provided in Section 2.3 of this
Agreement or to perfect the right to receive payment for such shares as
described in Section 3.4 of this Agreement.
ARTICLE FOUR
REPRESENTATIONS AND WARRANTIES OF BRUNSWICK
Brunswick hereby represents and warrants (as of April 19, 1988, which
shall include any representation or warranty given as of the date of this
Agreement, except to the extent that a representation or warranty is confined to
a specific date) to C&S, C&S Georgia and CSNB as follows:
4.1 ORGANIZATION, STANDING AND AUTHORITY. Brunswick is a federally
chartered stock savings bank duly organized, validly existing and in good
standing under the laws of the United States. The accounts of Brunswick are
insured by the SAIF to the extent provided in the Federal Deposit Insurance Act
and the Home Owners' Loan Act of 1933, as amended, and the rules and regulations
promulgated thereunder. Brunswick has corporate power and authority to carry on
its business as now conducted and to own, lease and operate its assets,
properties and business, and to execute, adopt and deliver, as appropriate, this
Agreement and the Plan of Merger and perform their respective terms. Copies of
the charter of Brunswick (certified by the secretary of Brunswick), which have
been delivered to C&S, and copies of the corporate minutes of Brunswick, which
have been or will be made available by Brunswick to C&S for review, are true and
complete as now in effect on the date of this Agreement.
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4.2 CAPITAL STOCK. The authorized capital stock of Brunswick
consists of (i) 4,000,000 shares of Brunswick Common Stock, of which 1,354,231
shares are issued and outstanding as of the date of this Agreement and (ii)
1,000,000 shares of serial preferred stock, none of which is issued and
outstanding as of the date of this Agreement. Brunswick does not hold any
shares of its Brunswick Common Stock in its treasury. All of the issued and
outstanding shares of Brunswick Common Stock are duly and validly issued and
outstanding are fully paid and non-assessable. None of the outstanding shares
of Brunswick Common Stock has been issued in violation of any preemptive rights
of the current or past stockholders of Brunswick. As of the date of this
Agreement, Brunswick has reserved 177,019 shares of Brunswick Common Stock for
issuance under the Brunswick Stock Option Plan pursuant to which options
covering 177,019 shares of Brunswick Common Stock are outstanding at the date of
this Agreement. Except as set forth above, there are no shares of capital stock
or other equity securities of Brunswick outstanding and no outstanding options,
warrants, scrip, rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into or exchangeable
for, shares of the capital stock of Brunswick or contracts, commitments,
understandings, or arrangements by which Brunswick may be bound to issue
additional shares of its capital stock or options, warrants or rights to
purchase or acquire any additional shares of its capital stock. Schedule 4.2
lists all of the currently outstanding options granted by Brunswick to its
directors, officers, and employees, and lists the number of shares of Brunswick
Common Stock, exercise periods and exercise prices of such options.
4.3 BRUNSWICK SUBSIDIARIES. Schedule 4.3 lists all of the Brunswick
Subsidiaries as of the date of this Agreement and indicates for each Subsidiary
as of such date (i) the percentage and type of equity securities owned or
controlled by Brunswick or some other Brunswick Subsidiary and (ii) its
jurisdiction of incorporation. No equity securities of any of the Brunswick
Subsidiaries are or may become required to be issued (other than to Brunswick)
by reason of any options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities or rights
convertible into or exchangeable for, shares of the capital stock of any
Brunswick Subsidiary, and there are no contracts, commitments, understandings,
or arrangements by which any Brunswick Subsidiary is bound to issue (other than
to Brunswick) additional shares of its capital stock or options, warrants, or
rights to purchase or acquire any additional shares of its capital stock. All
of the shares of capital stock of each Brunswick Subsidiary held by Brunswick
are fully paid and non-assessable and are owned by Brunswick free and clear of
any claim, lien, encumbrance, or agreement with respect thereto. Each Brunswick
Subsidiary: (i) is duly organized, validly existing and in good standing
under the laws of the jurisdiction in which it is incorporated; (ii) has the
corporate power and authority necessary for it to own or lease its properties
and assets and to carry on its business as it is now being conducted; and (iii)
has all federal, state, local and foreign governmental authorization necessary
for it to own or lease its properties and
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assets and to carry on its business as it is now being conducted, the absence of
which governmental authorizations, either individually or in the aggregate,
would have a material adverse effect on the financial condition or results of
operations of the Brunswick Companies on a consolidated basis.
4.4 AUTHORITY
(a) The execution, adoption and delivery, as appropriate, of this
Agreement and the Plan of Merger and the consummation of the transactions
contemplated herein or therein, including the Merger, have been duly and validly
authorized by all necessary corporate action in respect thereof on the part of
Brunswick, subject, with respect to this Agreement and the Plan of Merger, to
the approval of the stockholders of Brunswick. This Agreement and the Plan of
Merger, subject to the requisite approval of the stockholders of Brunswick,
represent legal, valid and binding obligations of Brunswick, enforceable against
Brunswick in accordance with their 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, adoption and delivery, as appropriate, of
this Agreement or the Plan of Merger by Brunswick , nor the consummation by
Brunswick of the transactions contemplated herein or therein, nor compliance by
Brunswick with any of the provisions hereof or thereof will (i) conflict or
result in a breach of any provision of the charter or by-laws of Brunswick, or
(ii) constitute or result in the breach of any term, condition or provision of,
or constitute a default under, or give rise to any right of termination,
cancellation, or acceleration with respect to, or result in the creation of any
lien, charge or encumbrance upon, any property or assets of Brunswick, pursuant
to any note, bond, mortgage, indenture, license, agreement, lease, or other
instrument or obligation to which it is a party or by which its properties or
assets may be subject, and that would in any such events, have a material
adverse effect on the financial condition or results of operations of the
Brunswick Companies on a consolidated basis or the transactions contemplated
hereby, or (iii) subject to receipt of the requisite approvals referred to in
Section 9.6 of this Agreement, to the knowledge of Brunswick's management,
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Brunswick or any of its Subsidiaries or any of their properties or
assets.
(c) Other than in connection or compliance with the provisions of the
applicable state corporate law, the 1933 Act , the 1934 Act and the rules and
regulations thereunder, applicable state securities laws and rules of the
National Association of Securities Dealers, Inc., and the New York Stock
Exchange, Inc.,; and other than consents, authorizations, approvals, or
exemptions required from the Federal Reserve Board, the OTS and the Georgia
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Commissioner: 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, no notice to, filing with, authorization of, or exemption by, or
consent or approval of any public body or authority is necessary for the
consummation by Brunswick of the Merger and the other transactions contemplated
in this Agreement or the Plan of Merger.
4.5 FINANCIAL STATEMENTS. Brunswick has delivered to C&S prior to the
execution of this Agreement copies of the following financial statements of
Brunswick and its Subsidiaries included in reports filed with the OTS or
separate from such reports (collectively referred to herein as the "Brunswick
Financial Statements"): (i) audited Consolidated Statements of Financial
Condition of Brunswick at September 30, 1987, 1986 and 1985, and the related
Consolidated Statements of (a) Income, (b) Stockholders' Equity and (c) Changes
in Financial Position for the fiscal years then ended and the noted thereto as
reported upon by Xxxxxx Xxxxxxxx & Co., independent certified public
accountants, and (ii) unaudited Consolidated Statements of Financial Condition
of Brunswick at December 31, 1987, and the related Consolidated Statements of
(a) Income, (b) Stockholders' Equity and (c) Changes in Financial Position for
the three-month period then ended and the notes thereto. Copies of the
Brunswick Financial Statements are contained in Schedule 4.5.
The Brunswick Financial Statements (as of the dates thereof and for the
periods covered thereby): (i) are in accordance with the books and records of
Brunswick, which are complete and accurate in all material respects and which
have been maintained in accordance with good business practices, and (ii)
present fairly the consolidated financial position and the consolidated results
of operations and changes in financial position of Brunswick as of the dates and
for the periods indicated, in accordance with GAAP applicable to savings banks,
applied on a basis consistent with prior periods (subject in the case of interim
financial statements to normal recurring year-end adjustments and to the
omission of certain footnote disclosure, which omission does not cause the
interim financial statements to be misleading or inaccurate in any material
respect).
4.6 ABSENCE OF UNDISCLOSED LIABILITIES. None of the Brunswick
Companies has any obligation or liability (contingent or otherwise) that is
material on a consolidated basis to Brunswick, or that when combined with all
similar obligations or liabilities would be material, on a consolidated basis to
Brunswick, (i) except as disclosed in the Brunswick Financial Statements or by
this Agreement and (ii) except for letters of credit, acceptances or unfunded
loan commitments made in the ordinary course of its business consistent with
applicable laws and past practice. Since December 31, 1987, none of the
Brunswick Companies has incurred or paid any obligation or liability which would
be material on a consolidated basis to Brunswick, except for obligations paid in
connection with transactions by it in the ordinary course of its business
consistent with past practice.
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4.7 TAX MATTERS.
(a) All federal, state, local and foreign tax returns required to be
filed by or on behalf of Brunswick have been timely filed or requests for
extensions have been timely filed, granted and have not expired for periods
ending on or before September 30, 1987, and all returns filed are complete and
accurate in all material respects to the best information and belief of
Brunswick's management. 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 or matter in controversy with respect to any taxes that might result
in a determination adverse to any of the Brunswick Companies, except as reserved
against in the Brunswick Financial Statements. All taxes, interest, additions
and penalties due with respect to completed and settled examinations or
concluded litigation have been paid. The last fiscal year for which federal
income tax returns for Brunswick have been audited by the Internal Revenue
Service was 1982.
(b) None of the Brunswick 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.
(c) Adequate provision for any federal, state, local or foreign taxes
due or to become due for any of the Brunswick Companies for the period or
periods beginning October 1, 1987, or thereafter through and including December
31, 1987, has been made and is reflected on the December 31, 1987 financial
statements included in the Brunswick Financial Statements.
(d) Deferred taxes of Brunswick have been provided for in accordance
with GAAP applied on a consistent basis.
4.8 LOANS. As of the date of this Agreement, to the best knowledge of
Brunswick's management, each loan in excess of $100,000 reflected as an asset of
Brunswick in the Brunswick Financial Statements as of September 30, 1987, or
acquired since that date, is the legal, valid and binding obligation of the
obligor named therein, and no loan having an unpaid balance (principal and
accrued interest) in excess of $100,000 as of September 30, 1987, is subject to
any asserted defense, offset or counterclaim known to Brunswick.
4.9 ALLOWANCE FOR POSSIBLE LOAN LOSSES. The allowance for possible
loan losses shown on the Consolidated Statement of Financial Condition of
Brunswick as of September 30, 1987, is adequate in all material respects to
provide for possible losses, net of recoveries relating to loans previously
charged off, on loans outstanding (including accrued interest receivable) as of
September 30, 1987.
4.10 PROPERTIES. Except as disclosed or reserved against in the
Brunswick Financial Statements and except for transactions occurring after
December 31, 1987, in the ordinary course of their business consistent with
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past practice, the Brunswick Companies have good and marketable title free and
clear of all material liens, encumbrances, charges, defaults, or equities of
whatever character to all of the respective properties and assets, tangible or
intangible, reflected in the Brunswick Financial Statements as being owned by
Brunswick as of December 31, 1987. To the knowledge of Brunswick's management,
all buildings, and all fixtures, equipment and other property and assets which
are material to its business on a consolidated basis, held under leases or
subleases by any of the Brunswick Companies, are held under valid instruments
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). The real property owned by the Brunswick Companies
has never been used for the handling, treatment, storage or disposal of any
hazardous or toxic substance as defined under any applicable state or federal
law. To the knowledge of Brunswick's management, the policies of fire, theft,
liability and other insurance maintained with respect to the assets or
businesses of Brunswick provide adequate coverage against loss, and the fidelity
bonds in effect as to which the Brunswick Companies are a named insured are
believed to be sufficient.
4.11 COMPLIANCE WITH LAWS. To the knowledge of Brunswick's management
each of the Brunswick Companies:
(a) Is in compliance with all laws, regulations, reporting and
licensing requirements and orders applicable to its business or employees
conducting its business, the breach or violation of which would have a material
adverse effect on the financial condition or results of operations of the
Brunswick Companies on a consolidated basis; and
(b) Has received no notification from any agency or department of
federal, state or local government or any of the Regulatory Authorities or the
staff thereof asserting that any of the Brunswick Companies is not in compliance
with any of the statutes, regulations or ordinances which such governmental
authority or Regulatory Authority enforces, which, as a result of such
noncompliance, would result in a material adverse impact on the business,
operations or financial condition of the Brunswick Companies on a consolidated
basis, or threatening to revoke any license, franchise, permit or governmental
authorization which is material to the business, operations or financial
condition of the Brunswick Companies on a consolidated basis, and is subject to
no written agreement or written understanding with any Regulatory Authority with
respect to its assets or business.
4.12 EMPLOYEE BENEFIT PLANS.
(a) Schedule 4.12 lists every pension, retirement, profit-sharing,
deferred compensation, stock option, employee stock ownership, severance pay,
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vacation, bonus or other incentive plan, any other written or unwritten employee
program, arrangement, agreement or understanding, whether arrived at through
collective bargaining or otherwise, any medical, vision, dental or other health
plan, any life insurance plan, or any other employee benefit plan or fringe
benefit plan, including, with limitation, any "employee benefit plan," as that
term is defined in Section 3(3) of the ERISA, currently or expected to be
adopted, maintained by, sponsored in whole or in part by, or contributed to by
any of the Brunswick Companies 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 "Benefit Plans"). Any of the Benefit Plans which
is any "employee pension benefit plan," as that term is defined in Section 3(2)
of ERISA, or an "employee welfare benefit plan" as that term is defined in
Section 3(1) of ERISA, is referred to herein as an "ERISA Plan." No Benefit
Plan is or has been a multiemployer plan within the meaning of Section 3(37) of
ERISA.
(b) Set forth in Schedule 4.12 are the following documents: true,
correct and complete copies of all written Benefit Plans listed in Schedule 4.12
and all trust agreements or other funding arrangements, including insurance
contracts, all amendments thereto and, where applicable, with respect to any
such plans or plan amendments, all determination letters, rulings, opinion
letters, information letters, or advisory opinions issued by the Internal
Revenue Service or the United States Department of Labor after December 31,
1974, annual reports or returns, audited or unaudited financial statements,
actuarial valuations, and summary annual reports for the most recent three plan
years, the most recent summary plan descriptions and any material modifications
thereto;
(c) All the Benefit Plans and the related trusts comply with, and have
been administered in compliance with, the provisions of ERISA, the provisions of
the Internal Revenue Code and all other applicable laws, rules and regulations
and collective bargaining agreements. Governmental approvals for the Benefit
Plans have been obtained, including, but not limited to, timely determination
letters on the qualification of the ERISA Plans and tax exemption of related
trusts, as applicable, under the Internal Revenue Code, and all such
governmental approvals continue in full force and effect. None of the Brunswick
Companies nor any administrator nor fiduciary of any such Benefit Plan (or agent
or delegate of any of the foregoing) has engaged in any transaction or acted or
failed to act in any manner which could subject any of the Brunswick Companies
to any direct or indirect liability for a breach of any fiduciary, cofiduciary,
or other duty under ERISA. No oral or written representation or communication
with respect to any aspect of the Benefit Plans has been made to employees of
any of the Brunswick Companies prior to the Effective Date which is not in
accordance with the written or otherwise preexisting terms and provisions of
such Benefit Plan in effect immediately prior to the Effective Date. Except as
disclosed in Schedule 4.12, there are
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no unresolved claims or disputed under the terms of, or in connection with, the
Benefit Plans and no action, legal or otherwise, has been commenced with respect
to any claim.
(d) Since December 31, 1974, no "party in interest" (as defined in
Section 3(14) of ERISA) or "disqualified person" (as defined in Section
4975(e)(2) of the Internal Revenue Code) of any Benefit Plan has engaged in any
"prohibited transaction" (within the meaning of Section 4975(c) of the Internal
Revenue Code or Section 406 of ERISA). There has been no (i) "reportable event"
(as defined in Section 4043 of ERISA), or event described in Section 4062(f) or
Section 4063(a) of ERISA, or (ii) termination or partial termination, withdrawal
or partial withdrawal with respect to any of the ERISA Plans which; (1) any of
the Brunswick Companies maintains or contributes to or has maintained or
contributed to or was required to be maintained or contributed to for the
benefit of employees of any of the Brunswick Companies, or (2) which has been
maintained or contributed to or was required to be maintained or contributed to
by any member of a controlled group of trades or business as defined in ERISA
Section 4001(a)(14) which has, since January 1, 1975, included any of the
Brunswick Companies.
(e) For any given ERISA Plan, the fair market value of such plan's
assets equals or exceeds the present value of all benefits (whether vested or
not) accrued to date by all present or former participants in such plan. For
this purpose the assumptions prescribed by the Pension Benefit Guaranty
Corporation for valuing pension plan assets or liabilities upon plan termination
shall be applied, to the extent such assumptions would be applicable upon
termination of each ERISA Plan. To the extent such assumptions would not apply
to the ERISA Plans, the actuarial assumptions used to determine funding
requirements under the plans shall be applied.
(f) Except for transactions occurring after December 31, 1987, in the
ordinary course of business of the Brunswick Companies consistent with their
past practice, as of the Effective Date, none of the Brunswick Companies will
have any material current or future liability under any Benefit Plan that is not
reflected in the Brunswick Financial Statements.
(g) None of the Brunswick Companies has at any time, and does not now,
maintain a Benefit Plan providing welfare benefits (as defined in ERISA Section
3(1)) to employees after retirement.
4.13 MATERIAL CONTRACTS. Except as set forth on Schedule 4.13 or
otherwise reflected in the Brunswick Financial Statements or the notes thereto,
none of the Brunswick Companies, nor any of their respective assets, businesses
or operations is as of the date of this Agreements a party to, or is bound or
affected by, or receives benefits under, (i) any material agreement, arrangement
or commitment not cancellable by it without penalty other than agreements,
arrangements or commitments entered into in the ordinary course of its business
consistent with its past practice, (ii) any agreement,
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arrangement or commitment relating to the employment, election or retention in
office of any director or officer, (iii) any contract, agreement or
understanding with any labor union, or (iv) any contract or agreement or
amendment thereto that would be required to be filed as an exhibit to a Form
10-K filed by Brunswick as of the date of this Agreement that has not been filed
as an exhibit to Brunswick Form 10-K filed for 1987 or on a report filed with
the OTS under the 1934 Act and identified to C&S. Brunswick has delivered to
C&S an executed copy of its current engagement letter with Interstate Xxxxxxx
Xxxx, Inc. which accurately reflects its current fee arrangement with such firm
for the services that it has previously provided and that will be provided in
connection with the transactions contemplated by this Agreement.
4.14 MATERIAL CONTRACT DEFAULTS. None of the Brunswick Companies is
in default in any material respect under any material contract, agreement,
commitment, arrangement, lease, insurance policy or other instrument to which it
is a party or by which its respective assets, business or operations may be
bound or affected or under which it or its respective assets, business or
operations received benefits, and there has not occurred any event that with the
lapse of time or the giving of notice or both would constitute such a default.
4.15 LEGAL PROCEEDINGS. There are not actions, suits or proceedings
instituted or pending, or to the knowledge of Brunswick's management, 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 of
the Brunswick Companies, or against any property, asset, interest, or right of
any of them, that are reasonably expected to have either individually or in the
aggregate a material adverse effect on the business or financial condition of
the Brunswick Companies or that are reasonably expected to materially threaten
or materially impede the consummation of the transactions contemplated by this
Agreement. None of the Brunswick Companies is a party to any agreement or
instrument or is subject to any charter or other corporate restriction or any
judgment, order, writ, injunction, decree, rule, regulation, code or ordinance
that threatens or might impede the consummation of the transactions contemplated
by this Agreement.
4.16 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since September 30, 1987,
the Brunswick Companies on a consolidated basis have not: (i) incurred any
material liability, except in the ordinary course of their business consistent
with their past practice and except as permitted pursuant to this Agreement;
(ii) suffered any material adverse change in their business, operations, assets,
or condition (financial or otherwise); or (iii) failed to operate their business
consistent with their past practice.
4.17 REPORTS. Between January 1, 1983, and the date of this
Agreement, Brunswick has filed all reports and statements, together with any
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amendments required to be made with respect thereto, that it was required to
file with the OTS or the SAIF ("Brunswick Reports") and has timely filed all
such reports, statements and amendments as wee required under the 1934 Act. To
the extent permitted by law, all such reports have been made available to C&S
for its review and inspection. As of their respective dates, the Brunswick
Reports, including the financial statements, exhibits and schedule contained or
referenced therein, complied in all material respects with the rules and
regulations with respect thereto promulgated by the OTS or the SAIF,
respectively, and did not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading.
4.18 STATEMENTS TRUE AND CORRECT. No representation or warranty made
by Brunswick nor any statement or certificate or instrument furnished by
Brunswick as information which is included in an Exhibit or Schedule by
Brunswick in connection with this Agreement nor any statement or certificate to
be furnished by Brunswick to C&S pursuant to this Agreement or in connection
with the transactions contemplated by this Agreement, contains or will contain
any untrue statement of material fact or omits or will omit to state a material
fact necessary to make the statements contained therein not misleading. None of
the information supplied or to be supplied by Brunswick for inclusion in the
Registration Statement to be filed by C&S with the SEC in connection with the
C&S Common Stock to be issued in the Merger, the Proxy Statement to be mailed to
the Brunswick stockholders in connection with the Stockholders' meeting,
and any other documents to be filed with any Regulatory Authority in connection
with the transactions contemplated hereby, will, at the respective time such
documents are filed, and, in the case of the Registration Statement, when it
becomes effective, and with respect to the Proxy Statement, when first mailed to
the stockholders of Brunswick, be false or misleading with respect to any
material fact, or omit to state any material fact necessary in order to make the
statements therein not misleading, or, in the case of the Proxy Statement or any
amendment thereof or supplement thereto, at the time of the Stockholders'
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
Stockholders' Meeting. All documents that Brunswick is responsible for filing
with the OTS or any other Regulatory Authority in connection with the Merger
will comply as to form in all material respects with the provisions of
applicable law.
ARTICLE FIVE
COVENANTS AND AGREEMENTS OF BRUNSWICK
Brunswick hereby covenants and agrees with C&S, C&S Georgia and CSNB as
follows:
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5.1 CONDUCT OF BUSINESS -- NEGATIVE COVENANTS. From the date of this
Agreement until the earlier of the Effective Date or until the termination of
this Agreement, Brunswick convenants and agrees that it will not do or agree or
commit to do, any of the following without the prior written consent of the
chief executive officer or chief financial officer of C&S, which consent shall
not be unreasonably withheld:
(a) Amend its charter or by-law; or
(b) Impose on any share of stock held by it in any of the Brunswick
Subsidiaries, any material lien, charge, or encumbrance, or permit any such
lien, charge or encumbrance to exist; or,
(c) Except as otherwise expressly permitted in Section 5.9 of this
Agreement, repurchase, redeem, or otherwise acquire or exchange, directly or
indirectly, any shares of its capital stock or any securities convertible into
any shares of its capital stock; or,
(d) Except as otherwise expressly permitted in Section 5.9 of this
Agreement, make or effect any change in equity capitalization; or,
(e) Acquire direct or indirect control over any corporation,
association, firm or organization, other than in connection with (i) exercise of
rights as a secured party or creditor in the ordinary course of business, or
(ii) acquisitions of control by Brunswick in its fiduciary capacity; or,
(f) Sell or otherwise dispose of, or permit any of the Brunswick
Subsidiaries, as the case may be, to sell or otherwise dispose of: (i) any
shares of capital stock of any Brunswick Subsidiary; (ii) all or substantially
all of the assets of Brunswick or any Subsidiary; (iii) any Brunswick
Subsidiary; or (iv) assets other than in the ordinary course of business for
reasonable and adequate consideration; or
(g) Incur, or permit any of Brunswick Subsidiaries to incur, any
additional debt obligation or other obligation for borrowed money in excess of
an aggregate of $100,000 (for the Brunswick Companies on a consolidated basis)
except in the ordinary course of the business of the Brunswick Companies
consistent with applicable laws and regulations and past practices (and such
ordinary course of business shall include, but shall not be limited to, creation
of deposit liabilities, purchases of federal funds, liabilities to the Federal
Home Loan Banks under advance therefrom, sales of certificates of deposit, and
entry into repurchase agreements); or,
(h) Grant any general increase in compensation to its employees as a
class or to its officers, except in accordance with its past practice or as
required by law; pay any bonus except in accordance with past practice or the
provisions of any applicable program or plan adopted by the Board of Directors
of Brunswick prior to the date of this Agreement; grant any increase in fees
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or other increases in compensation or other benefits to any of its directors; or
effect any change in retirement benefits for any class of its employees or
officers (unless such change is required by applicable law) that would
materially increase the retirement benefit liabilities of the Brunswick
Companies on a consolidated basis; or,
(i) Amend any existing employment, management, consulting or other
service, deferred compensation, supplemental retirement benefit, excess benefit
or retainer contract between Brunswick or any Subsidiary and any person (unless
such amendment is required by law) to increase the compensation or benefits
payable thereunder or enter into any new employment contract with any person
that Brunswick or its applicable Subsidiary 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 Date; or,
(j) Adopt any new employee benefit plan of Brunswick or any Subsidiary
or make any material change in or to any existing employee benefit plan of
Brunswick or any Subsidiary other than (i) as disclosed on Schedule 4.12, or
(ii) 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.
5.2 CONDUCT OF BUSINESS -- AFFIRMATIVE COVENANTS. Unless the prior
written consent of C&S shall have been obtained and except as otherwise
contemplated by this Agreement, Brunswick will and will cause its Subsidiaries:
(i) to operate their respective businesses only in the usual, regular and
ordinary course including the payment or accrual of as much of its costs and
expenses in carrying out the transactions contemplated by this Agreement as
practicable consistent with GAAP prior to the Effective Date; (ii) to preserve
intact their respective business organizations and assets and maintain their
respective rights and franchises; and (iii) to take no action which would (a)
adversely affect the ability of any of them to obtain any necessary approvals of
governmental authorities required for the transactions contemplated hereby
without imposition of a condition or restriction of the type referred to in the
last sentence of Section 9.6 of this Agreement, or (b) adversely affect the
ability of Brunswick to perform its convenants and agreements under this
Agreement.
5.3 ADVERSE CHANGES IN CONDITION. Brunswick hereby agrees to give
written notice promptly to C&S concerning any material adverse change in its
condition or that any of the Brunswick Subsidiaries from the date of this
Agreement until the Effective Date that might adversely affect the consummation
of the transactions contemplated hereby or upon becoming aware of the occurrence
or impending occurrence of any event or circumstance which would cause or
constitute a material breach of any of the representations, warranties or
covenants of Brunswick contained herein. Brunswick shall use its best efforts
to prevent or promptly remedy the same.
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5.4 COOPERATION. Brunswick hereby covenants and agrees to cooperate
fully with C&S to provide such support, assistance and information to C&S as may
be reasonably requested by it in connection with its application for all
necessary approvals by public authorities, federal, state or local, in
connection with the transactions contemplated hereby, and to consult regularly
with C&S in the preparation of any such applications or the Registration
Statement and the Proxy Statement.
5.5 INVESTIGATION AND CONFIDENTIALITY. Prior to the Effective Date,
C&S may make or cause to be made such investigation, if any, of the business and
properties of Brunswick and the Brunswick Subsidiaries and of their respective
financial and legal condition as C&S reasonably deems necessary or advisable to
familiarize itself and its advisers with such business, properties, and other
matters, provided that such investigation shall be reasonably related the
transactions contemplated hereby and shall not interfere unnecessarily with
normal operations. Subject to applicable provisions of law, Brunswick agrees to
furnish C&S and C&S's advisers with such financial and operating data and other
information with respect to its businesses, properties, and employees as C&S
shall affect the representations and warranties of Brunswick, and subject to
Section 10.3 of this Agreement each such representation and warranty shall
survive any such investigation. C&S shall, and shall cause its advisers and
agents, to maintain the confidentiality of all confidential information
furnished to it by Brunswick concerning Brunswick's business, operations and
financial condition and shall not use such information for any purpose for a
period of five (5) years after the date of this Agreement except in furtherance
of the transactions contemplated by this Agreement. If this Agreement is
terminated prior to the Effective Date, C&S shall promptly return all documents
and copies thereof, and all work papers containing confidential information
received from Brunswick.
5.6 REPORTS. Between the date of this Agreement and the Effective
Date, Brunswick shall timely file all reports and statements, together with any
amendments required to be made with respect thereto, required to be filed with
the OTS by Brunswick between the date of this Agreement and the Effective Date
and shall deliver to C&S copies of all such reports promptly after the same are
filed. If financial statements will fairly present the financial position of
the Brunswick Companies on a consolidated basis as of the dates indicated and
the results of operations and changes in financial position for the period then
ended in accordance with GAAP applicable to savings banks, applied on a
consistent basis (subject in the case of interim financial statements to normal
recurring year-end adjustments). As of their respective dates such reports
filed with the OTS will comply in all material respects with the rules and
regulations promulgated by the OTS and will not contain any untrue statement of
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light
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of the circumstances under which they were made, not misleading. Any financial
statements contained in any such reports to another Regulatory Authority shall
be presented in accordance with applicable rules, regulations or standards
applicable to such reports.
5.7 CURRENT INFORMATION. During the period from the date of this
Agreement to the Effective Date, Brunswick shall cause one or more of its
representatives to confer on a regular and frequent basis with representatives
of C&S and to report on the general status of the ongoing operations of
Brunswick and its Subsidiaries. Brunswick shall promptly notify C&S of any
material change in the normal course of the business of Brunswick and its
Subsidiaries or in the operation of their properties and of any material
governmental complaints, investigations or hearings (or communications
indicating that the same may be contemplated) or the institution or the threat
of any material litigation involving Brunswick or its Subsidiaries, and will
keep C&S fully informed with respect to such events.
5.8 DIVIDENDS. Without the prior written consent of C&S, from the
date of this Agreement to the earlier of the Effective Date or the termination
of this Agreement, Brunswick shall not declare, set aside, make or pay any
dividend or distribution in respect of its capital stock whether in cash, in
shares of its capital stock or in any other form whatsoever.
5.9 CAPITAL STOCK. Without the prior written consent of C&S, from the
date of this Agreement to the earlier of the Effective Date or the termination
of this Agreement, Brunswick: (i) shall not, and shall not enter into any
agreement to, issue, sell, or otherwise permit to become outstanding, any
additional shares of Brunswick Common Stock, preferred stock or any other
capital stock of Brunswick's treasury, or any stock appreciation rights, or
any option, warrant, conversion, or other right to purchase any such stock,
or any security convertible into any such stock, other than the issuance of not
more than 177,019 shares of Brunswick Common Stock upon the exercise of
presently outstanding options under the Brunswick Stock Option Plan; and (ii)
shall not permit more than 1,531,250 shares of Brunswick Common Stock to be
issued and outstanding.
5.10 AGREEMENT OF AFFILIATES. Brunswick agrees to deliver to C&S no
later than the date of this Agreement a letter identifying ally persons whom
Brunswick reasonably believes, at the time the Merger is submitted to a vote of
its stockholders, will be "affiliate" of Brunswick for purposes of Rule 145
under the 1933 Act. Brunswick shall use its best efforts to cause each person
who is identified as an "affiliate" in the letter referred to above to deliver
to C&S within ten (10) days after the date of this Agreement, a written
agreement, substantially in the form of Exhibit 2, providing that such person
will not sell, pledge, transfer or otherwise dispose of the shares of Brunswick
Common Stock held by such person except as contemplated by such agreement and
will not sell, pledge, transfer or otherwise dispose of the
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shares of C&S 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 and until such time as the financial
results covering at least thirty (30) days of combined operations of C&S and
Brunswick have been published within the meaning of Section 201.01 of the SEC's
Codification of Financial Reporting Policies. If the Merger will qualify for
pooling of interest accounting treatment, shares of C&S Common Stock issued to
such affiliates of Brunswick in exchange for Brunswick Common Stock shall not be
transferable until such time as financial results covering at least thirty (30)
days of combined operations of C&S and Brunswick have been published within the
meaning of Section 201.01 of the SEC's Codification of Financial Reporting
Policies regardless of whether each such affiliate has provided the written
agreement referred to in this section. C&S shall not be required to maintain
the effectiveness of the Registration Statement under the 1933 Act for the
purposes of resale of C&S Common Stock by such affiliates.
5.11 CERTAIN ACTIONS. Except to the extent necessary to discharge its
legal obligations or the legal obligations of members of its Board of Directors
as directors and except to the extent necessary to consummate the transactions
specifically contemplated by this Agreement or the Plan of Merger, (i) Brunswick
shall not, and shall use its best efforts to ensure that its directors, officers
and advisors do not, institute , pursue, enter into, solicit or encourage
(including by way of furnishing any information not legally required to be
furnished) any inquiry, discussion or proposal relating to the merger or
consolidation of Brunswick or any of its Subsidiaries with any entity or the
acquisition of Brunswick or any of its Subsidiaries or all or a significant
amount of their assets or properties by any person or entities, (ii) Brunswick
shall not negotiate with respect to any such transaction, nor shall it reach any
agreement or understanding (formal or informal, binding or non-binding,
preliminary or definitive, written or otherwise) with respect to any such
transaction and (iii) Brunswick shall promptly notify C&S orally and in writing
in the event it receives any inquiry or proposal relating to any such
transaction and shall consult with C&S before communicating with anyone (other
than its professional advisors) regarding such inquiry or proposal. As part of
its obligations under this Section 5.11, Brunswick has delivered to C&S a duly
executed agreement from each officer and director of Brunswick substantially in
the form of Exhibit 3.
5.12 AGREEMENT AS TO EFFORTS TO CONSUMMATE. Subject to the terms and
conditions of this Agreement, Brunswick hereby agrees to use all 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 and
regulations to consummate and make effective, as soon as practicable after the
date of this Agreement, the transactions contemplated by this Agreement and the
Plan of Merger, including, without limitation, using reasonable effort to lift
or rescind any injunction or restraining order or other adversely affecting the
ability of the Parties to consummate the transactions contemplated herein.
Brunswick shall use, and shall cause each
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of the Brunswick Subsidiaries to use, its best efforts to obtain consents
of all third parties and governmental bodies necessary or desirable for the
consummation of the transactions contemplated by this Agreement.
5.13 RELATED AGREEMENTS. By the Effective Date, Brunswick shall have
cured defaults, if any, existing on the date of this Agreement under any
material loan or financing agreements to which Brunswick is a borrower or
obligor thereunder.
5.14 ESCROW ACCOUNT. Brunswick agrees to establish prior to the
Effective Date an account consisting solely of certain assets of Brunswick
in an amount sufficient to satisfy claims of stockholders of Brunswick who
perfect their rights of appraisal pursuant to 12 C.F.R. ss 552.14, but the
aggregate amount of the value of the assets placed in escrow will in no
event exceed one percent (1%) of the net assets of Brunswick.
ARTICLE SIX
REPRESENTATIONS AND WARRANTIES OF C&S, C&S GEORGIA AND CSNB
C&S, C&S Georgia and CSNB hereby represent and warrant (as of April
19, 1988, which shall include any representation or warranty given as of
the date of the Agreement, except to the extent that a representation or
warranty is confined to a specific date) to Brunswick as follows:
6.1 ORGANIZATION, STANDING AND AUTHORITY OF C&S. C&S is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Georgia, is duly qualified to do business and is in good standing
in the States of the United States and foreign jurisdictions where its
ownership or leasing of property or the conduct of its business requires it
to be so qualified and in which the failure to be duly qualified could have
a material adverse effect upon the C&S Companies on a consolidated basis,
and has corporate power and authority to carry on its business as now
conducted and to own, lease and operate its assets, properties and
business, and to execute and deliver this Agreement and the Plan of Merger
and perform their respective term. C&S is duly registered as a bank holding
company under the BHC Act. C&S has in effect all federal, state, local and
foreign governmental authorization necessary for it to own or lease its
properties and assets and to carry on its business as is now being
conducted, the absence of which, either individually or in the aggregate,
would have a material adverse effect on the financial condition or results
of operations of the C&S Companies on a consolidated basis.
6.2 CAPITAL STOCK. The authorized capital stock of C&S consists of
(i) 120,000,000 shares of C&S Common Stock, of which 61,110,616 shares
were issued and outstanding as of March 31, 1988, and (ii) 10,000,000
shares of C&S
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preferred stock of no par value, which shares of preferred stock may be
issued in classes and series by the Board of Directors of C&S as provided
in Section 14-2-602 of the Georgia Business Corporation Code. As of March
31, 1988, 125 shares of Money Market Cumulative Preferred Stock, Series A,
and 125 shares of Money Market Cumulative Preferred Stock, Series B, were
issued and outstanding. C&S issued and additional 2,948,588 shares of ESOP
Convertible Perferred Stock, Series C on July 10, 1989. C&S holds no shares
of C&S Common Stock in its treasury. All of the issued and outstanding
shares of C&S Common Stock are, and the shares of C&S Common Stock to be
issued upon consummation of the Merger shall be, duly and validly issued
and outstanding and fully paid and non-assessable. None of outstanding
shares of C&S Common Stock has been issued in violation of any preemptive
rights of its current or former stockholders. C&S has provided Brunswick
with a copy of C&S' 1988 Annual Meeting Proxy Statement dated March 4,
1988. The information included therein with respect to the various stock
option and stock appreciation rights plans maintained by C&S as described
under "Proposal I - Election of the Directors - Information on Benefit
Plans and Policies; Stock Option and Stock Appreciation Rights Plans" and
"Proposal III - Proposed 1988 Long-Term Incentive Plan" was accurate and
complete in all material respects as of the date of such proxy statement.
6.3 ORGANIZATION AND STANDING OF C&S GEORGIA. C&S Georgia is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Georgia and has corporate power and authority to carry
on its business as now conducted and to own, lease and operate its assets,
properties and business and to execute and deliver this Agreement and the
Plan as a bank holding company under the BHC Act. The authorized capital
stock of C&S Georgia consists of 10,000 shares of $1.00 par value common
stock, of which 500 shares were issued and outstanding as of March 31,
1988. C&S Georgia is a wholly owned subsidiary of C&S.
6.4 ORGANIZATION AND STANDING OF CSNB. CSNB is a national banking
association duly organized, validly existing and in good standing under the
laws of the United States and has power and authority to carry on its
business as now conducted and to own, lease and operate its assets,
properties and business and to execute and deliver this Agreement and
perform its terms. CSNB is not required to be qualified to transact
business as a foreign corporation in any state or jurisdiction. CSNB has an
authorized capital stock of 40,000,000 shares of $2.50 par value common
stock, of which 38,000,000 shares are issued and outstanding.
6.5 AUTHORITY.
(a) The execution and delivery of this Agreement and the Plan of
Merger, and the consummation of the transactions contemplated herein or
therein, including the Merger, have been duly and validly authorized by all
necessary corporate action in respect thereof on the part of C&S, C&S
Georgia
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and CSNB. This Agreement and the Plan of Merger represent to the extent
applicable legal, valid and binding obligations of C&S, C&S Georgia and
CSNB, enforceable in accordance with their respective 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 injuctive 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 or the Plan
of Merger by C&S, C&S Georgia or CSNB, nor the consummation by C&S, C&S
Georgia or CSNB of the transactions contemplated herein or therein, nor
compliance by C&S, C&S Georgia or CSNB with any of the provisions hereof or
or thereof will (i) conflict or result in a breach of any provision of the
articles of incorporation or by-laws of C&S, or C&S Georgia or the articles
of association or the by-laws of CSNB, or (ii) constitute or result in the
breach of any term, condition or provision of, or constitute a default
under, or give rise to any right of termination, cancellation, or
acceleration with respect to, or result in the creation of any lien, charge
or encumbrance upon, any property or assets of any of the C&S Companies,
pursuant to any note, bond, mortgage, indenture, license, agreement, lease,
or other instrument or obligation to which any of them is a party or by
which any of them or any of their properties or assets may be subject, and
that would, in any such events, have a material adverse effect on the
financial condition or results of the operations of the C&S Companies on a
consolidated basis or the transactions contemplated hereby, or (iii)
subject to receipt of requisite approvals referred to in Section 9.6 of
this Agreement, to the knowledge of C&S's management, violate any order,
writ, injunction, decree, statute, rule or regulation applicable to C&S or
any of their properties or assets.
(c) Other than in connection or compliance with the provisions of the
applicable state corporate law, the 1933 Act, the 1934 Act and the rules
and regulations thereunder, applicable state securities laws and rules of
the National Association of Securities Dealers, Inc. and the New York Stock
Exchange, Inc.; and other than consents, authorizations, approvals, or
exemptions required from the Federal Reserve Board, the OTS and the Georgia
Commissioner; 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, no notice to, filing with, authorization of, or
or exemption by, or consent or approval or any public body or authority is
necessary for the consummation by C&S, C&S Georgia and CSNB of the Merger
and the other transactions contemplated in this Agreement or the Plan of
Merger.
6.6 FINANCIAL STATEMENTS. C&S has delivered to Brunswick prior to the
execution of this Agreement copies of the following financial statements of
C&S and its Subsidiaries included in reports filed with the SEC or separate
from such reports (collectively referred to herein as the "C&S Financial
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Statements"): audited Consolidated Statements of Condition of C&S at
December 31, 1987, 1986 and 1985, and the related Consolidated Statements
of (i) Income, (ii) Stockholders' Equity and (iii) Changes in Financial
Position for the years then ended and the notes thereto as reported upon by
Ernst & Whinney, independent certified public accountants. Copies of the
C&S Financial Statements are contained in Schedule 6.6.
The C&S Financial Statements (as of the dates thereof and for the
periods covered thereby): (i) are in accordance with the books and records
of the C&S Companies, which are complete and accurate in all material
respects and which have been maintained in accordance with good business
practices, and (ii) present fairly the consolidated financial position of
C&S as of the dates and for the periods indicated, in accordance with GAAP
applicable to banks or bank holding companies, applied on a basis
consistent with prior periods.
6.7 ABSENCE OF UNDISCLOSED LIABILITIES. None of the C&S Companies has
any obligation or liability (contingent or otherwise) that is material on a
consolidated basis to C&S, or that when combined with all similar
obligations or liabilities would be material, on a consolidated basis to
C&S, (i) except as disclosed in the C&S Financial Statements or by this
Agreement and (ii) except, in the case of any banking Subsidiaries of C&S,
for letters of credit, acceptances or unfunded loan commitments made in the
ordinary course of its business consistent with applicable laws and past
practice. Since December 31, 1987, none of the C&S Companies has incurred
or paid any obligation or liability with would be material on a
consolidated basis to C&S, except for obligations paid in connection with
transactions by it in the ordinary course of its business consistent with
past practice.
6.8 COMPLIANCE WITH LAWS. To the knowledge of C&S's management each
of the C&S companies:
(a) Is in compliance with all laws, regulations, reporting and
licensing requirements and orders applicable to its business or employees
conducting its business, the breach or violation of which would have a
material adverse effect on the financial condition or results of operations
of the C&S Companies on a consolidated basis; and
(b) Has received no notification from any agency or department of
federal, state or local government or any of the Regulatory Authorities or
the staff thereof asserting that any of the C&S Companies is not in
compliance with any of the statutes, regulations or ordinances which such
governmental authority or Regulatory Authority enforces, which, as a result
of noncompliance, would result in a material adverse impact on the
business, operations or financial condition of the C&S Companies on a
consolidated basis, or threatening to revoke any license, franchise, permit
or governmental authorization which is material to the business, operations
or financial condition of the C&S Companies on a consolidated basis, and is
subject to no
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written agreement or written understanding with any Regulatory Authority
with respect to its assets or business.
6.9 LEGAL PROCEEDINGS. There are no actions, suits or proceedings
instituted or pending, or to the knowledge of C&S's management, threatened
(or unasserted by considered probable or assertion and which if asserted
would have at least a reasonable probability of an unfavorable outcome)
against any of the C&S Companies, or against any property, asset, interest,
or right of any of them (including the litigation with the Internal Revenue
Service relating to the deductibility of certain intangible assets which is
disclosed in the C&S Financial Statements), that are reasonably expected to
have either individually or in the aggregate a material adverse effect on
the business or financial condition of the C&S Companies or that are
reasonably expected to materially threaten or materially impede the
consummation of the transactions contemplated by this Agreement. None of
the C&S Companies is a party to any agreement or instrument or is subject
to any charter or other corporate restriction or any judgement, order,
writ, injunction, decree, rule, regulation, code or ordinance that
threatens or might impede the consummation of the transactions contemplated
by this Agreement.
6.10 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since December 31, 1987,
the C&S Companies on a consolidated basis have not: (i) incurred any
material liability, except in the ordinary course of their business
consistent with their past practice and except as permitted pursuant to
this Agreement; (ii) suffered any material or adverse change in their
business, operations, assets or condition (financial or otherwise); or
(iii) failed to operate their business consistent with their past practice.
6.11 REPORTS. Since January 1, 1987, C&S and each Subsidairy of C&S
that is a bank has filed all reports and statements, together with any
amendments required to be made with respect thereto, that it was required
to file with (i) the SEC, including, but not limited to Forms 10-K, Forms
10-Q and proxy statements, (ii) the Federal Reserve Board, (iii) the
Comptroller, and (iv) the FDIC. Each of such reports and documents,
including the financial statements, exhibits and schedules thereto, does
not contain any statement with at the time and in light of the
circumstances under which it was made, is false or misleading with respect
to any material fact or which omits to state any material fact necessary in
order to make statements contained therein not false or misleading.
6.12 STATEMENTS TRUE AND CORRECT. No representation or warranty made
by C&S nor any statement or certificate or instrument furnished by C&S as
information which is included in an Exhibit or Schedule in connection with
this Agreement nor any statement or certificate to be furnished by C&S to
Brunswick pursuant to this Agreement, or in connection with the
transactions contemplated by this Agreement, contains or will contain any
untrue statement of material fact or omits or will omit to state a material
fact necessary to make the statements contained therein not misleading.
None of the information
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supplied or to be supplied by C&S for inclusion in the Registration Statement to
be filed by C&S with the SEC in connection with the C&S Common Stock to be
issued in the Merger, the Proxy Statement to be mailed to the Brunswick
stockholders in connection with the Stockholders' Meeting, and any other
documents to be filed with any Regulatory Authority in connection with the
transactions contemplated hereby, will, at the respective time such documents
are filed, and, in the case of the Registration Statement, when it becomens
effective, and with respect to the Proxy Statement, when first mailed to the
stockholders of Brunswick, be false or misleading with respect to any material
fact, or omit to state any material fact necessary in order to make the
statements therein not misleading, or, in the case of the Proxy Statement or any
amendment thereof or supplement thereto, at the time of the Stockholders'
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
Stockholders' Meeting. All documents that C&S is responsible for filing with the
SEC or any other Regulatory Authority in connection with the Merger will comply
as to form in all material respects with the provisions of applicable law.
ARTICLE SEVEN
COVENANTS AND AGREEMENTS OF C&S, C&S GEORGIA AND CSNB
C&S, C&S Georgia and CSNB hereby covenant and agree with Brunswick as
follows:
7.1 CONDUCT OF BUSINESS. Except as contemplated by this Agreement, C&S
will and will cause its Subsidiaries: (i) to operate their respective business
only in the usual, regular and ordinary course; (ii) to preserve intact their
respective business organizations and assets and maintain their rights and
franchises; and (iii) to take no action which would (a) adversely affect the
ability of any of them to obtain any necessary approvals of governmental
authorities required for the transactions contemplated hereby without imposition
of a condition or restriction of the type referred to in the last sentence of
Section 9.6 of this Agreement or (b) adversely affect the ability of C&S to
perform its covenants and agreements under this Agreement.
7.2 ADVERSE CHANGES IN CONDITION. C&S hereby agrees to give written
notice promptly to Brunswick concerning any material adverse change in its
condition or that of any of the C&S Subsidiaries from the date of this Agreement
until the Effective Date that might adversely affect the consumation of the
transactions contemplated hereby or upon becoming aware of the occurrence or
impending occurrence of any event or circumstance which could cause or
constitute a material breach of any of the representations, warranties or
convenants of C&S contained herein. C&S shall use its best efforts to prevent or
promptly remedy the same.
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7.3 INVESTIGATION AND CONFIDENTIALITY. Prior to the Effective Date,
Brunswick may make or cause to be made such investigation, if any, of the
business and properties of C&S and the C&S Subsidiaries and of their
respective financial and legal condition as Brunswick reasonably deems necessary
or advisable to familiarize itself and its advisers with such business,
properties, and other matters, provided that such investigation shall be
reasonably related to the transactions contemplated hereby and shall not
interfere unnecessarily with normal operations. Subject to the applicable
provisions of law, C&S agrees to furnish Brunswick and Brunswick's advisers with
such financial and operating data and other information with respect to its
businesses, properties, and employees as Brunswick shall from time to time
reasonably request. No investigation by Brunswick shall affect the
representations and warranties of C&S, and subject to Section 10.3 of this
Agreement each such representation and warranty shall survive any such
investigation. Brunswick shall, and shall cause its advisers and agents, to
maintain the confidentiality of all confidential information furnished to it by
C&S concerning C&S's business, operations and financial condition and shall not
use such information for any purpose for a period of five (5) years after the
date of this Agreement except in furtherance of the transactions contemplated by
this Agreement. If this Agreement is terminated prior to the Effective Date,
Brunswick shall promptly return all documents and copies thereof, and all work
papers containing confidential information received from C&S.
7.4 REPORTS. C&S shall timely file all reports and statements,
together with any amendments required to be made with respect thereto, required
to be filed with the SEC and the Federal Reserve Board by C&S between the date
of this Agreement and the Effective Date and shall deliver to Brunswick copies
of all such reports promptly after the same are filed. If financial statements
are contained in such reports to the SEC, such financial statements will fairly
present the financial position of the C&S Companies on a consolidated basis as
of the dates indicated and the results of operations and changes in financial
position for the period then ended in accordance with GAAP applicable to banks
and bank holding companies, applied on a consistent basis (subject in the case
of interim financial statements to normal recurring year-end adjustments). As of
their respective dates such reports filed with the SEC will comply in all
material respects with the rules and regulations promulgated by the SEC and will
not contain any untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Any financial statements contained in any such reports to another
Regulatory Authority shall be presented in accordance with applicable rules,
regulations or standards applicable to such reports.
7.5 CURRENT INFORMATION. During the period from the date of this
Agreement to the Effective Date, C&S shall cause one or more of its
representatives to confer on a regular and frequent basis with representatives
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of Brunswick and to report on the general status of its ongoing operations. C&S
shall promptly notify Brunswick of any material change in the normal course of
C&S's business or in the operation of its properties and of any material
governmental complaints, investigations or hearings (or communications
indicating that the same may be contemplated) or the institution or the threat
of litigation involving C&S, and will keep Brunswick fully informed with respect
to such events.
7.6 ORGANIZATION OF BRUNSWICK INTERIM. As soon as practicable after
the execution of this Agreement, C&S shall effect all action necessary to
organize Brunswick Interim as a federal stock savings bank. The authorized
capital stock of Brunswick Interim shall consist of 1,000 shares of Brunswick
Interim Common Stock, all of which shares shall be held by C&S. Except as
contemplated by this Agreement or the Plan of Merger, Brunswick Interim shall
engage in no business activities or acquire any assets until consummation of the
Merger.
7.7 APPLICATIONS. C&S shall diligently prepare and file, or shall
cause to be prepared and filed, and pursue applications with the Federal Reserve
Board, the OTS and the Georgia Commissioner seeking the requisite approvals
necessary to consummate the transactions contemplated by this Agreement and Plan
of Merger and shall take such other steps and actions in furtherance thereof as
it deems appropriate.
7.8 AGREEMENT AS TO EFFORTS TO CONSUMMATE. Subject to the terms and
conditions of this Agreement, C&S agrees to use all 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 and regulations to
consummate and make effective, as soon as practicable after the date of this
Agreement, the transactions contemplated by this Agreement and the Plan of
Merger, including, without limitation, using reasonable effort to lift or
rescind any injunction or restraining order or other order adversely affecting
the ability of the Parties to consummate the transactions contemplated herein.
C&S shall, and shall cause each of the C&S Subsidiaries to, use its best efforts
to obtain consents of all third parties and governmental bodies necessary or
desirable for the consummation of the transactions contemplated by this
Agreement and the Plan of Merger.
ARTICLE EIGHT
ADDITIONAL AGREEMENTS
8.1 REGISTRATION STATEMENT: STOCKHOLDER APPROVAL. At such time as
determined in the sole discretion of C&S, C&S shall prepare and file the
Registration Statement with the SEC and C&S and Brunswick shall use their best
efforts to cause the Registration Statement to become effective under the 1933
Act and shall 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
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C&S Common Stock upon consummation of the Merger. Each Party shall furnish all
information concerning it and the holders of its capital stock as the other
Party may reasonable request in connection with such action. Brunswick shall
call a Stockholders' Meeting to be held as soon as practicable after the date of
this Agreement for the purpose of voting upon the Merger and such other related
matters as it deems appropriate. In connection with the Stockholders' Meeting,
(i) Brunswick shall mail the Proxy Statement included as part of the
Registration Statement and as filed with the OTS to its stockholders, (ii) the
Board of Directors of Brunswick shall recommend (subject to compliance with its
legal obligations as advised by counsel and subject to receipt of the investment
banking letter referred to in Section 9.13 of this Agreement) to its
stockholders the approval of this Agreement and the Plan of Merger, and (iii)
Brunswick shall use its best efforts to obtain such stockholders' approval. As
soon as practicable after the Stockholders' Meeting, Brunswick shall deliver to
C&S a certificate of the Secretary of Brunswick containing the names of the
stockholders of Brunswick that have either: (i) not voted for the Merger
contemplated hereby or (ii) given written notice of or prior to the
Stockholders' Meeting that they dissent from the Merger ("Certificate of
Objections"). The Certificate of Objections shall include the number of shares
of Brunswick Common Stock held by each such stockholder and the mailing address
of each such stockholder.
8.2 TAX RULING: TAX OPINION. C&S and Brunswick hereby agree to use
their efforts to obtain (i) a ruling from the Internal Revenue Service to the
effect that the transactions contemplated hereby, including the Merger, will
constitute a reorganization within the meaning of Section 368(b) of the Internal
Revenue Code and that the exchange in the Merger of C&S Common Stock for
Brunswick Common Stock will not give rise to gain or loss to the stockholders of
C&S or Brunswick with respect to such exchange (except to the extent of any cash
paid in lieu of fractional shares) ("Tax Ruling") or (ii) if mutually agreed
upon in writing by C&S and Brunswick, a written opinion of legal counsel
reasonably acceptable to C&S and Brunswick to the same effect ("Tax Opinion").
8.3 PRESS RELEASES. Prior to the Effective Date, C&S and Brunswick
shall consult 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
8.3 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 and the other Party shall be properly notified of
such disclosure.
8.4 AVANTOR REORGANIZATION: SUBSTITUTION OF AVANTOR COMMON STOCK.
(a) Brunswick acknowledges that C&S and Sovran have entered into the
Avantor Agreements, pursuant to which (i) C&S and Sovran will become wholly
owned subsidiaries of Avantor and (ii) each share of C&S Common Stock, C&S
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Money Market Cumulative Preferred Stock, Series A and B, and C&S ESOP
Convertible Preferred Stock, Series C, will be converted, respectively, into one
share of Avantor Common Stock, Avantor Money Market Cumulative Preferred Stock,
Series A and B, and Avantor ESOP Convertible Preferred Stock, Series C, and each
share of Sovran common stock will be converted into 1.23 shares of Avantor
Common Stock. Brunswick acknowledges that C&S has delivered to Brunswick, the
Registration Statement on Form S-4 filed by Avantor with the SEC on November 1,
1989, with respect to (i) the Avantor Reorganization (which registration
statement includes the Avantor Agreements as appendices to the Joint Proxy
Statement --Prospectus contained therein) and (ii) the shares of Avantor Common
Stock, Avantor Money Market Cumulative Preferred Stock, Series A and Series B,
and Avantor ESOP Convertible Preferred Stock, Series C, proposed to be issued to
the stockholders of C&S and Sovran upon Consummation of the Avantor
Reorganization. Brunswick further understands that C&S and Sovran presently
anticipate consummating the Avantor Reorganization during the first or second
quarters of 1990, but that no assurance can be provided that the Avantor
Reorganization will be consummated during such time period or at all. Brunswick
agrees that the Effective Date shall be delayed until such time as the Avantor
Reorganization is consummated (or terminated in accordance with the provisions
of the Avantor Agreements) and that the timing of the Merger, including the
Stockholders' Meeting, shall be effected in accordance with a schedule
determined by C&S and shall be delayed until such time as the Avantor
Reorganization is consummated (or terminated in accordance with the provisions
of the Avantor Agreements). In consideration of the transactions contemplated by
this Agreement, the Board of Directors of Avantor shall approve the obligations
of Avantor under this Agreement and the Plan of Merger and shall execute a
supplement to this Agreement evidencing such approval of its obligations under
the terms of this Agreement and the Plan of Merger.
(b) C&S and Brunswick agree, that if the Avantor Reorganization is
consummated:
(i) on and after the Effective Date, C&S will be a wholly owned
subsidiary of Avantor;
(ii) this Agreement and the Plan of Merger shall be deemed to be
automatically amended, upon consummation of the Avantor Reorganization,
to provide that, upon the Effective Date, (a) (1) each share Brunswick
Common Stock that would otherwise be converted in teh Merger into the
right to receive a multiple of a share of C&S Common Stock shall be
converted in lieu thereof into the right to receive the multiple of a
share of Avantor Common Stock as calculated in accordance with the
terms of this Agreement and the Plan of Merger (an "Avantor Merger
Share") and (2) for such purposes, an Avantor Merger Share shall mean a
multiple of a share of Avantor Common Stock determined by dividing the
Per Share Purchase Price by the Avantor Base Period Trading Price;
provided, however, that for purposes of this calculation, the Avantor
Base Period Trading Price shall be deemed to equal (x) $18.84 in the
event the Avantor Base Period Trading Price is less than $18.84 or (y)
$31.40 in the event
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the Avantor Base Period Trading Price is greater then $31.40 and (b)
each option to purchase Brunswick Common Stock that would otherwise be
converted in the Merger into the right to receive an option to purchase
C&S Common Stock shall be converted in lieu thereof into the right to
receive an option to purchase Avantor Common Stock on the same terms as
set forth in Section 2.4 of this Agreement; and in connection
therewith, all references in this Agreement, the Plan of Merger and the
other appendices to this Agreement to:
(1) shares of C&S Common Stock shall be changed to refer to
shares of Avantor Common Stock (but only in those contexts in
which C&S is referred to as the issuer of the C&S Common Stock in
the Merger);
(2) C&S shall be changed to refer to Avantor (but only in
those contexts in which C&S is referred to as the issuer of the
C&S Common Stock to be issued in the Merger);
(3) the Registration Statement of C&S (with respect to the
C&S Common Stock to be issued in the Merger) shall be changed to
refer to the Registration Statement of Avantor (with respect to
the Avantor Common Stock to be issued in the Merger); and
(4) the various appendices to this Agreement shall be
amended as agreed upon by the Parties (including the legal
opinions of the respective counsel to C&S and Brunswick which
shall include such corresponding opinions with respect to
Avantor as provided with respect to C&S) and to the extent
consistent with, and reasonably required to reflect, the
substitution of shares of Avantor Common Stock for shares of C&S
Common Stock as contemplated by this Section 8.4; and
(iii) consummation of the Avantor Reorganization shall not cause
an adjustment in the multiple of a share of Avantor Common Stock to be
received for each share of Brunswick Common Stock as a result of the
application of the provisions of Section 2.3(b) of this Agreement.
ARTICLE NINE
CONDITIONS PRECEDENT TO THE OBLIGATIONS TO CONSUMMATE
The obligations of C&S, on the one hand, and Brunswick, on the other
hand, to perform this Agreement and consummate the Merger are subject to the
satisfaction of the following conditions, unless waived by C&S or Brunswick, as
the case may be, pursuant to Section 11.5 of this Agreement:
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9.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of each Party set forth or referred to in this Agreement shall be true and
correct in all material respects as of the date of this Agreement and as of the
Effective Date with the same effect as though all such representations and
warranties had been made on and as of the Effective Date, except for (i) any
such representations and warranties confined to a specified date, which shall be
true and correct in all material respects as of such date, (ii) changes in the
ordinary course of business consistent with past practice, or (iii) changes
resulting from effecting the transactions specifically contemplated by this
Agreement or the Plan of Merger, including the fees and expenses incurred in
connection therewith.
9.2 PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all of the
covenants and agreements of each Party to be performed and complied with
pursuant to this Agreement and the other agreements contemplated hereby prior to
the Effective Date shall have been duly performed and complied with in all
material respects.
9.3 CERTIFICATES. Each of the Parties shall have delivered to the other
a certificate, dated as of the Effective Date and signed on its behalf by its
Chairman of the Board, or its President, and its Treasurer, to the effect that
(i) the conditions of its obligations set forth in Sections 9.1 and 9.2 of this
Agreement have been satisfied and (ii) that there has been no material adverse
change in the consolidated financial condition or consolidated results of
operations of such Party from that reflected on the (a) September 30, 1987 and
December 31, 1987, financial statements referred to in Section 4.5 as to
Brunswick and (b) December 31, 1987, financial statements referred to in Section
6.6 as to C&S, other than changes in the consolidated financial condition or
consolidated results of operations of such Party resulting from effecting the
transactions specifically contemplated by this Agreement or the Plan of Merger,
all in such reasonable detail as the other Party shall request.
9.4 CORPORATE AUTHORIZATION. All action necessary to authorize the
execution, delivery and performance of this Agreement and the Plan of Merger and
the consummation of the transactions contemplated hereby and thereby shall have
been duly and validly taken by the Parties. Each Party shall have furnished to
the other certified copies of resolutions duly adopted by such Party's Board of
Directors evidencing the same.
9.5 STOCKHOLDER APPROVALS. The stockholders of Brunswick shall have
approved this Agreement and the Plan of Merger, and the consummation of the
transactions contemplated hereby including the Merger, as and to the extent
required by law and by the provisions of any governing instruments, and
Brunswick shall have furnished to C&S certified copies of resolutions duly
adopted by Brunswick's stockholders evidencing the same. In addition, the
holders of no more than seven percent (7%) of the issued and outstanding shares
of Brunswick Common Stock shall have filed written notice with Brunswick at or
prior to the Stockholders' Meeting that they dissent from the Merger or have
voted against adoption of this Agreement or the Plan of Merger.
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9.6 CONSENTS AND APPROVALS. All approvals and authorizations of,
filings and registrations with, and notifications to, all federal and state
authorities required for consummation of the Merger and for the preventing of
any termination of any right, privilege, license or agreement of either Party or
any of its respective Subsidiaries which, if not obtained or made, would have a
material adverse impact on the financial condition or results of operation of
such Party and its Subsidiaries on a consolidated basis, shall have been
obtained or made and shall be in full force and effect and all waiting periods
required by law shall have expired. To the extent that any lease, license, loan
or financing agreement or other contract or agreement to which Brunswick or any
of its Subsidiaries, as the case may be, is a party requires the consent of or
waiver from the other party thereto as a result of the transactions contemplated
by this Agreement or the Plan of Merger, such consent or waiver shall have been
obtained, unless (i) waived by the appropriate Party in accordance with Section
11.5 of this Agreement, or (ii) the failure to obtain such consent or waiver
would not have a material adverse impact on the business, operations or
financial condition of Brunswick or any of its Subsidiaries following the Merger
or the transactions contemplated hereby. Any approval obtained from any
Regulatory Authority which is necessary to consummate the transactions
contemplated hereby shall not be conditioned or restricted in a manner in which
in the judgment of the Board of Directors of either Party materially adversely
affects the economic assumptions of the transactions contemplated hereby or the
business of either Party so as to render inadvisable the consummation of the
Merger.
9.7 LEGAL PROCEEDINGS. No action or proceedings shall have been
instituted by any governmental authority or to the knowledge of the parties
threatened by any governmental authority seeking to restrain the consummation of
the transactions contemplated by this Agreement which, in the opinion of the
Board of Directors of C&S or Brunswick, renders it impossible or inadvisable to
consummate the transactions provided for in this Agreement.
9.8 MATERIAL ADVERSE CHANGE. There shall have been no determination by
the Board of Directors of either Party that the Merger or the other transactions
contemplated by this Agreement have become impractical because any state of war,
national emergency, or banking moratorium shall have been declared in the United
States or a general suspension of trading on the New York Stock Exchange
occurred. There shall have been no determination by the Board of Directors of
either Party that the consummation of the Merger or the other transactions
contemplated by this Agreement is not in the best interests of such Party or its
stockholders by reason of a material adverse change in the consolidated
financial condition or consolidated results of operations of the other Party
from that reflected in the (i) September 30, 1987 and December 31, 1987,
financial statements referred to in Section 4.5 as to Brunswick and (ii) the
December 31, 1987, financial statements referred to in Section 6.6 as to C&S,
other than changes in the consolidated financial condition or consolidated
results of operations of such Party resulting from effecting the transactions
specifically contemplated by this Agreement, or the Plan of Merger.
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9.9 LETTERS CONCERNING CLAIMS. Each director and officer of Brunswick
shall have delivered to C&S a letter in the form set forth in Exhibit 4
concerning claims such directors and officers may have against Brunswick. In the
letter, the directors and officers shall: (i) acknowledge the assumption by C&S
of all liability (to the extent Brunswick is so liable) for claims for
indemnification arising under the charter or by-laws of Brunswick as existing on
December 31, 1987, or as may be afforded by Georgia law or the laws of the
United States 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 Date; (ii) affirm in their capacities as
officers and directors, they do not have nor are they aware of any claims they
might have (other than those referred to in (i) above) against Brunswick; and
(iii) release any and all claims that they may have other than those referred to
in (i) above. C&S shall acknowledge receipt of the letter and affirm its
assumption of the liabilities described in (i) above.
9.10 OPINIONS OF COUNSEL. C&S shall have delivered to Brunswick an
opinion of Xxxxxx & Bird, dated as of the Effective Date, substantially in the
form and to the effect specified in Exhibit 5, and Brunswick shall have
delivered to C&S an opinion of Smith, Mackinnon, Xxxxxxx & Xxxxxxxxxxxx, P.A.,
dated as of the Effective Date, substantially in the form and to the effect
specified in Exhibit 6.
9.11 ACCOUNTANTS' LETTERS. C&S shall have received from Xxxxxx Xxxxxxxx
& Co. letters dated as of (i) the date of the Proxy Statement and (ii) the
Effective Date, with respect to certain financial information regarding
Brunswick, which shall be substantially in the form and to the effect set forth
in Exhibit 7.
9.12 TAX MATTERS. Each of the Parties shall have delivered to the other
a Certificate, dated as of the Effective Date, signed by its Chairman of the
Board, or its President, and by its Treasurer to the effect that, to the best
knowledge and belief of such officers, the statement of facts and
representations made on behalf of the management of such Party, presented in and
in support of the request to the Internal Revenue Service for the Tax Ruling and
presented in and in support of all supplemental requests, or presented to the
legal counsel delivering the Tax Opinion, as the case may be, were at the date
of such request or presentation and of any such supplement, true, correct and
complete, and are on the date of such Certificate, to the extent contemplated by
the request or presentation and any such supplemental request, true, correct and
complete, as though such request or presentation and any such supplemental
request had been made on the date of such Certificate. Each Party shall have
received a copy of the Tax Ruling or the Tax Opinion referred to in Section 8.2
of this Agreement.
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9.13 LETTER FROM INVESTMENT BANKING FIRM. Brunswick shall have received
a letter from Interstate Xxxxxxx Lane, Inc. dated as of the date of the Proxy
Statement, to the effect that in the opinion of such firm the terms of the
Merger are fair to the stockholders of Brunswick from a financial point of view.
9.14 REGISTRATION STATEMENT. The Registration Statement shall be
effective under the 1933 Act and no stop orders suspending the effectiveness of
the Registration Statement shall be in effect and no proceedings for such
purpose, or under the proxy rules of the OTS pursuant to the 1934 Act, and with
respect to the transactions contemplated hereby, shall be pending before or
threatened by the SEC or the OTS.
ARTICLE TEN
TERMINATION
10.1 TERMINATION. Notwithstanding any other provision of this Agreement
or the Plan of Merger and notwithstanding the approval of this Agreement and the
Plan of Merger by the stockholders of Brunswick, this Agreement may be
terminated and the Merger abandoned at any time prior to the Effective Date:
(a) By a vote of a majority of the Board of Directors of both C&S and
Brunswick; or
(b) By a vote of a majority of the Board of Directors of either C&S or
Brunswick in the event of a material breach by the other Party of any
representation, warranty, covenant or agreement contained herein 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
(c) By a vote of a majority of the Board of Directors of either C&S or
Brunswick in the event that the Merger shall not have been consummated by
September 30, 1990; or
(d) By a vote of a majority of the Board of Directors of either C&S or
Brunswick in the event (i) any approval of any governmental or other
Regulatory Authority required for Consummation of the Merger and the other
transactions contemplated hereby shall have been denied by final non-appealable
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 stockholders of
Brunswick fail to vote their approval of the Merger and the transactions
contemplated hereby as required by the Home Owners' Loan Act of 1933, as
amended, and the Georgia Financial Institutions Code at the Stockholders'
Meeting where the transactions were presented to such stockholders for approval;
or
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(e) By a vote of a majority of the Board of Directors of either C&S or
Brunswick in the event (i) of the acquisition, by any person or group of
persons, of beneficial ownership of forty percent (40%) or more of the
outstanding shares of common stock of the other Party (the terms "group" and
"beneficial ownership" having the meanings assigned thereto in Section 13(d) of
the 1934 Act and the regulations promulgated thereunder), or (ii) the Board of
Directors of the other Party accepts or publicly recommends acceptance of an
offer from a third party to acquire fifty percent (50%) or more of its common
stock or consolidated assets, provided that the transactions contemplated by the
Avantor Reorganization shall not be deemed to provide Brunswick a right of
termination under the provisions of this Section 10.1(e);
(f) By a vote of majority of the Board of Directors of Brunswick in the
event the Base Period Trading Price is less than $17.00 (subject to appropriate
adjustment in the event of stock splits or stock dividends with respect to
shares of C&S Common Stock prior to the Effective Date).
10.2 EFFECT OF TERMINATION. In the event of the termination and
abandonment of this Agreement and the Plan of Merger pursuant to Section 10.1 of
this Agreement, this Agreement and the Plan of Merger shall become void and have
no effect, except that the provisions of Sections 5.5, 7.3 and 11.1 of this
Agreement shall survive any such termination and abandonment.
10.3 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
respective representations, and warranties, obligations, covenants and agreement
of the Parties shall not survive the Effective Date except Sections 2.3, 2.4,
3.3, 3.4, 3.5, 8.4, 11.1 and 11.2 of this Agreement.
ARTICLE ELEVEN
MISCELLANEOUS
11.1 EXPENSES.
(a) Except as provided in Section 11.1(b) of this Agreement, each of
the Parties shall bear and pay all costs and expenses incurred by it or on its
behalf in connection with the transactions contemplated hereunder, including
fees and expenses of its own financial or other consultants, investment bankers,
accountants and counsel.
(b) Notwithstanding the provisions of Section 11.1(a) of this
Agreement, if this Agreement and the Plan of Merger are terminated (i) by
Brunswick before the Closing is concluded for any of the reasons set forth in
Sections 10.1(b), 10.1(d)(i) or 10.1(f) of this Agreement, (ii) by C&S before
the Closing is concluded for any of the reasons set forth in Section 10.1(d)(i)
of this Agreement or (iii) by mutual agreement of the Parties before the Closing
is concluded pursuant to Section 10.1(a) of this Agreement but only for the
specific reasons specified in Section 10.1(d)(i) of
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this Agreement, C&S shall reimburse Brunswick for any and all of the expenses of
Brunswick (including, but not limited to, fees and expenses of its accountants,
counsel and investment bankers) reasonably incurred in attempting to effect the
transactions contemplated by this Agreement. Notwithstanding the foregoing, if
this Agreement and the Plan of Merger are terminated by C&S or Brunswick
pursuant to Section 10.1(b) of this Agreement because of the willful breach by
the other of any representation, warranty, covenant, undertaking or restriction
contained herein, if the terminating Party shall not have been in breach (in any
material respect) of any representation, warranty, covenant, undertaking or
restriction contained in this Agreement, then the breaching Party shall pay for
any and all of the expenses of the terminating Party (including, but not limited
to, fees and expenses of its accountants, counsel and investment bankers)
reasonably incurred in attempting to effect the transactions contemplated by
this Agreement. Final settlement with respect to payment of such fees and
expenses by the Parties shall be made within thirty (30) days of the termination
of this Agreement and the Plan of Merger.
11.2 BROKERS AND FINDERS. Except for Interstate Xxxxxxx Xxxx, Inc. as
to Brunswick, each of the Parties, represents and warrants that neither it nor
any of its officers, directors, employees, affiliates or Subsidiaries 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. 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
either C&S or Brunswick, C&S or Brunswick, as the case may be, agrees to
indemnify and hold the other Party harmless of and from any such claim.
11.3 ENTIRE AGREEMENT. Except as otherwise expressly provided herein,
this Agreement and the Plan of Merger contain the entire agreement between the
Parties with respect to the transactions contemplated hereunder and thereunder,
and such agreements supersede all prior arrangements or understandings with
respect thereto, written or oral. The terms and conditions of this Agreement and
the Plan of Merger shall inure to the benefit of and be binding upon the Parties
and their respective successors. Nothing in this Agreement or the Plan of Merger
expressed or implied, is intended to confer upon any Party, other than the
Parties or their respective successors, any rights, remedies, obligations or
liabilities under or by reason of this Agreement or the Plan of Merger, except
as expressly provided herein or therein.
11.4 AMENDMENTS. To the extent permitted by law, this Agreement and the
Plan of Merger may be amended by a subsequent writing signed by all of the
Parties upon the approval of the Boards of Directors of each of the Parties;
provided, however, that the provisions of Section 2.3 of this Agreement relating
to the manner or basis in which shares of Brunswick Common Stock will
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be exchanged for C&S Common Stock shall not be amended after the Stockholders'
Meeting without the requisite approval of the holders of the outstanding shares
of Brunswick Common Stock, and that no amendment to this Agreement shall modify
the requirements of regulatory approval set forth in Sections 9.4 and 9.6 of
this Agreement.
11.5 WAIVERS. Prior to or on the Effective Date, C&S, acting through
its Board of Directors or its Chairman, Vice Chairman or President, shall have
the right to waive any default in the performance of any term of this Agreement
by Brunswick, to waive or extend the time for the compliance or fulfillment by
Brunswick of any and all of its obligations under this Agreement, and to waive
any or all of the conditions precedent to the obligations of C&S under this
Agreement, except any condition which, if not satisfied, would result in the
violation of any law or applicable governmental regulation. Prior to or on the
Effective Date, Brunswick, acting through its Board of Directors, Chairman or
President, shall have the right to waive any default in the performance of any
term of this Agreement by C&S, to waive or extend the time for the compliance or
fulfillment by C&S of any and all of its obligations under this Agreement, and
to waive any or all of the conditions precedent to the obligations of Brunswick
under this Agreement, except any condition which, if not satisfied, would result
in the violation of any law or applicable governmental regulation.
11.6 NO ASSIGNMENT. None of the Parties may assign any of its rights or
obligations under this Agreement or the Plan of Merger to any other person.
11.7 SPECIFIC ENFORCEABILITY. The Parties recognize and hereby
acknowledge that it is impossible to measure in money the damages that would
result to a Party by reason of the failure of any of the Parties to perform any
of the obligations imposed on it by this Agreement. Accordingly, if after the
Stockholders' Meeting any Party should institute an action or proceeding
seeking specific enforcement of the provisions of this Agreement, each Party
against which such action or proceeding is brought hereby waives the claim or
defense that the Party instituting such action or proceeding has an adequate
remedy at law and hereby agrees not to assert in any such action or proceeding
the claim or defense that such a remedy at law exists.
11.8 NOTICES. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered personally,
by facsimile transmission or sent by registered or certified mail, postage
prepaid 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 personally or by facsimile transmission or
mailed; provided, however, that notice of termination of this Agreement shall be
effective only upon actual delivery of such notice to the Party entitled to the
same:
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C&S: The Citizens and Southern Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx
Attention: Xxxxxxx X. Xxxxx
Chairman of the Board
Copy to Counsel: Xxxxxx & Bird
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: F. Xxxx Xxxxxxxx
Brunswick: First Federal Savings Bank of Brunswick,
Georgia
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx
Attention: Xxx X. Xxxxx III
Chairman of the Board
Copy to Counsel: Smith, Mackinnon, Xxxxxxx &
Xxxxxxxxxxxx, P.A.
Suite 850
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
11.9 GOVERNING LAW. This Agreement and the Plan of Merger shall be
governed by and construed and enforced in accordance with the laws of the State
of Georgia except to the extent the laws of the State of Delaware or federal law
shall be applicable.
11.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
duly executed and delivered on its behalf and its corporate seal to be hereunto
affixed and attested by officers thereunto duly authorized all as of the day and
year first above written.
THE CITIZENS AND SOUTHERN CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Xxxxxxx X. Xxxxx
Chairman of the Board
ATTEST: /s/ Xxxxx X. Xxxx
--------------------------
Xxxxx X. Xxxx
Secretary
(CORPORATE SEAL)
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CITIZENS AND SOUTHERN GEORGIA
CORPORATION
By: /s/ Xxxx X. XxXxxxxx
--------------------------------
Xxxx X. XxXxxxxx
Chairman of the Board
ATTEST: /s/ Xxxxx X. Xxxx
--------------------------
Xxxxx X. Xxxx
Secretary
(CORPORATE SEAL)
THE CITIZENS AND SOUTHERN NATIONAL
BANK
By: /s/ Xxxxxxx X. XxxXxxxxxxxxx
--------------------------------
Xxxxxxx X. XxxXxxxxxxxxx
President
ATTEST: /s/ Xxxxx X. Xxxx
---------------------------
Xxxxx X. Xxxx
Secretary
(ASSOCIATION SEAL)
FIRST FEDERAL SAVINGS BANK
OF BRUNSWICK, GEORGIA
By: /s/ Xxx X. Xxxxx III
--------------------------------
Xxx X. Xxxxx III
Chairman of the Board
ATTEST: /s/ Xxxxxx X. Xxxx
---------------------------
Xxxxxx X. Xxxx
Secretary
(SAVINGS BANK SEAL)
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Supplement to Amended and Restated Agreement
and Plan of Reorganization
This Supplement ("Supplement") to the foregoing Amended and Restated
Agreement and Plan of Reorganization ("Agreement") is executed by Avantor
Financial Corporation ("Avantor") pursuant to Section 8.4(a) of the Agreement
and in consideration of the premises of the Agreement, the representations,
warranties, covenants, and agreements of First Federal Savings Bank of
Brunswick, Georgia and The Citizens and Southern Corporation set forth in the
Agreement, the benefits to be derived by Avantor under the terms of the
Agreement, and other good and valuable consideration the receipt and sufficiency
of which is hereby acknowledged. By execution of this Supplement, Avantor
represents that its Board of Directors has duly and validly authorized and
approved the obligations of Avantor under the Agreement and the transactions
contemplated thereby and undertakes and agrees to perform all obligations and
covenants to be performed by Avantor under the terms of the Agreement and the
Plan of Merger and to abide by the Agreement and the Plan of Merger in
accordance with their respective terms.
AVANTOR FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx, Xx. By: /s/ Xxxxxxx X. Xxxxx
--------------------------- ---------------------------
Xxxxxx X. Xxxxxx, Xx. Xxxxxxx X. Xxxxx
Chairman of the Executive Chairman of the Board
Committee
ATTEST: /s/ Page X. Xxxxxxxx (CORPORATE SEAL)
Page X. Xxxxxxxx
Secretary
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