AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
FIRST BANKSHARES OF WEST POINT, INC.
AND
CAPITAL CITY BANK GROUP, INC.
Dated as of September 25, 2000
TABLE OF CONTENTS
AGREEMENT AND PLAN OF MERGER....................................1
PREAMBLE........................................................1
1.1 HOLDING COMPANY MERGER...........................1
1.2 BANK MERGER......................................1
1.3 TIME AND PLACE OF CLOSING........................2
1.4 EFFECTIVE TIME...................................2
ARTICLE 2
TERMS OF MERGER............................................2
2.1 CHARTER..........................................2
2.2 BYLAWS...........................................2
2.3 DIRECTORS AND OFFICERS...........................2
ARTICLE 3
MANNER OF CONVERTING SHARES................................2
3.1 CONVERSION OF SHARES.............................2
3.2 ANTI-DILUTION PROVISIONS.........................3
3.3 SHARES HELD BY FBWP OR CCBG......................3
3.4 DISSENTING SHAREHOLDERS..........................3
3.5 FRACTIONAL SHARES................................4
ARTICLE 4
EXCHANGE OF SHARES.........................................5
4.1 EXCHANGE PROCEDURES..............................5
4.2 RIGHTS OF FORMER FBWP SHAREHOLDERS...............5
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF FBWP.....................6
5.1 ORGANIZATION, STANDING, AND POWER................6
5.2 AUTHORITY OF FBWP; NO BREACH BY AGREEMENT........6
5.3 CAPITAL STOCK....................................7
5.4 FBWP SUBSIDIARIES................................8
5.5 FINANCIAL STATEMENTS.............................8
5.6 ABSENCE OF UNDISCLOSED LIABILITIES...............9
5.7 ABSENCE OF CERTAIN CHANGES OR EVENTS.............9
5.8 TAX MATTERS......................................9
5.9 ALLOWANCE FOR POSSIBLE LOAN LOSSES..............12
5.10 ASSETS..........................................12
5.11 INTELLECTUAL PROPERTY...........................13
5.12 ENVIRONMENTAL MATTERS...........................13
5.13 COMPLIANCE WITH LAWS............................14
5.14 LABOR RELATIONS.................................14
5.15 EMPLOYEE BENEFIT PLAN...........................15
5.16 MATERIAL CONTRACTS..............................16
5.17 LEGAL PROCEEDINGS...............................17
5.18 REPORTS.........................................17
5.19 STATEMENTS TRUE AND CORRECT.....................18
5.20 ACCOUNTING, TAX AND REGULATORY MATTERS..........18
5.21 STATE TAKEOVER LAWS.............................18
5.22 CHARTER PROVISIONS..............................18
5.23 OPINION OF FINANCIAL ADVISOR....................19
5.24 BOARD RECOMMENDATION............................19
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF CCBG....................19
6.1 ORGANIZATION, STANDING, AND POWER...............19
6.2 AUTHORITY OF CCBG; NO BREACH BY AGREEMENT.......19
6.3 CAPITAL STOCK...................................20
6.4 CCBG SUBSIDIARIES...............................20
6.5 SEC FILINGS; FINANCIAL STATEMENTS...............21
6.6 ABSENCE OF UNDISCLOSED LIABILITIES..............21
6.7 ABSENCE OF CERTAIN CHANGES OR EVENTS............21
6.8 CERTAIN ENVIRONMENTAL AND EMPLOYEE
BENEFIT MATTERS...............................21
6.9 ALLOWANCE FOR POSSIBLE LOAN LOSSES..............22
6.10 INTELLECTUAL PROPERTY...........................22
6.11 COMPLIANCE WITH LAWS............................22
6.12 LEGAL PROCEEDINGS...............................23
6.13 REPORTS.........................................23
6.14 STATEMENTS TRUE AND CORRECT.....................23
6.15 ACCOUNTING, TAX AND REGULATORY MATTERS..........24
ARTICLE 7
CONDUCT OF BUSINESS PENDING CONSUMMATION..................25
7.1 AFFIRMATIVE COVENANTS OF FBWP...................25
7.2 NEGATIVE COVENANTS OF FBWP......................25
7.3 COVENANTS OF CCBG...............................27
7.4 ADVERSE CHANGES IN CONDITION....................28
7.5 REPORTS.........................................28
ARTICLE 8
ADDITIONAL AGREEMENTS.....................................28
8.1 REGISTRATION STATEMENT; PROXY STATEMENT;
SHAREHOLDER APPROVAL..........................28
8.2 NASDAQ LISTING..................................29
8.3 APPLICATIONS....................................29
8.4 FILINGS WITH STATE OFFICES......................29
8.5 AGREEMENT AS TO EFFORTS TO CONSUMMATE...........29
8.6 INVESTIGATION AND CONFIDENTIALITY...............29
8.7 PRESS RELEASES..................................30
8.8 CERTAIN ACTIONS.................................31
8.9 ACCOUNTING AND TAX TREATMENT....................31
8.10 STATE TAKEOVER LAWS.............................31
8.11 CHARTER PROVISIONS..............................31
8.12 FBWP MEETINGS...................................31
8.13 AGREEMENT OF AFFILIATES.........................32
8.14 EMPLOYEE BENEFITS AND CONTRACTS.................32
8.15 INDEMNIFICATION.................................33
8.16 CERTAIN POLICIES OF FBWP........................34
8.17 STOCK OPTION AGREEMENT..........................34
8.18 DIRECTOR'S AGREEMENTS...........................34
8.19 TAXES...........................................34
8.20 FAIRNESS OPINION................................35
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE.........35
9.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY.........35
9.2 CONDITIONS TO OBLIGATIONS OF CCBG...............36
9.3 CONDITIONS TO OBLIGATIONS OF FBWP...............38
ARTICLE 10
TERMINATION...............................................39
10.1 TERMINATION.....................................39
10.2 EFFECT OF TERMINATION...........................40
10.3 ALTERNATE TRANSACTION...........................40
10.4 NON-SURVIVAL OF REPRESENTATIONS AND COVENANTS...40
ARTICLE 11
MISCELLANEOUS.............................................40
11.1 DEFINITIONS.....................................40
11.2 EXPENSES........................................49
11.3 BROKERS AND FINDERS.............................49
11.4 ENTIRE AGREEMENT................................49
11.5 AMENDMENTS......................................49
11.6 WAIVERS.........................................50
11.7 ASSIGNMENT......................................50
11.8 NOTICES.........................................50
11.9 GOVERNING LAW...................................51
11.10 COUNTERPARTS...................................51
11.11 CAPTIONS; ARTICLES AND SECTIONS................51
11.12 INTERPRETATIONS................................51
11.13 ENFORCEMENT OF AGREEMENT.......................51
11.14 SEVERABILITY...................................52
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and
entered into as of September 25, 2000, by and between CAPITAL
CITY BANK GROUP, INC., a Florida corporation ("CCBG"), and FIRST
BANKSHARES OF WEST POINT, INC., a Georgia corporation ("FBWP").
PREAMBLE
The respective Boards of Directors of FBWP and CCBG are of the
opinion that the transactions described herein are in the best
interests of the parties to this Agreement and their respective
shareholders. This Agreement provides for the acquisition of
FBWP by CCBG pursuant to the merger of (i) FBWP with and into
CCBG (the "Holding Company Merger") and (ii) First National with
and into a Florida chartered bank subsidiary of CCBG, Capital
City Bank ("CCB") (the "Bank Merger") (collectively, the
"Mergers"). At the effective time of the Holding Company Merger,
the outstanding shares of the capital stock of FBWP shall be
converted into the right to receive a combination of shares of
the common stock of CCBG and cash as described in this Agreement.
As a result, shareholders of FBWP shall become shareholders of
CCBG and CCBG shall conduct the business and operations of FBWP.
The transactions described in this Agreement are subject to the
approvals of the shareholders of FBWP, the Board of Governors of
the Federal Reserve System, the Office of the Comptroller of the
Currency, the Georgia Department of Banking and Finance, and the
satisfaction of certain other conditions described in this
Agreement. It is the intention of the parties to this Agreement
that each of the Mergers, for federal income tax purposes, shall
qualify as a "reorganization" within the meaning of Section
368(a) of the Internal Revenue Code.
Certain terms used in this Agreement are defined in Section 11.1
of this Agreement.
NOW, THEREFORE, in consideration of the above and the mutual
warranties, representations, covenants, and agreements set forth
herein, the parties, intending to be legally bound, agree as
follows:
ARTICLE 1
TRANSACTIONS AND TERMS OF MERGER
ARTICLE 1.1 HOLDING COMPANY MERGER . Subject to the terms and
conditions of this Agreement, at the Effective Time, FBWP shall
be merged with and into CCBG in accordance with the provisions
of, and with the effect provided in, Sections 14-2-1106 and 14-2-
1107 of the GBCC and Sections 607.1101, 607.1103, 607.1105,
607.1106 and 607.1107 of the FBCA. CCBG shall be the Surviving
Corporation resulting from the Holding Company Merger and shall
continue to be governed by the Laws of the State of Florida. The
Holding Company Merger shall be consummated pursuant to the terms
of this Agreement, which has been approved and adopted by the
respective Boards of Directors of FBWP and CCBG.
ARTICLE 1.2 BANK MERGER . Subsequent to the consummation of the
Holding Company Merger, First National shall be merged with and
into CCB in accordance with the provisions of and with the effect
provided in Section 658.41 of the Florida Statutes on terms and
subject to the provisions of the Bank Plan of Merger ("Bank
Plan"), attached hereto as Exhibit 1. FBWP shall vote the shares
of capital stock of First National in favor of the Bank Plan and
the Bank Merger provided therein.
ARTICLE 1.3 TIME AND PLACE OF CLOSING . The closing of the
transactions contemplated hereby (the "Closing") will take place
at 9:00 A.M. on the date that the Effective Time occurs (or the
immediately preceding day if the Effective Time is earlier than
9:00 A.M.), or at such other time as the Parties, acting through
their authorized officers, may mutually agree. The Closing shall
be held at such location as may be mutually agreed upon by the
Parties or may be conducted by mail or telefax as may be mutually
agreed upon by the Parties.
ARTICLE 1.4 EFFECTIVE TIME . The Holding Company Merger and
other transactions contemplated by this Agreement shall become
effective on the date and at the time the Articles of Merger
reflecting the Holding Company Merger shall become effective with
the Secretary of State of the State of Florida or the Secretary
of State of the State of Georgia, whichever is later (the
"Effective Time"). Subject to the terms and conditions hereof,
unless otherwise mutually agreed upon in writing by the
authorized officers of each Party, the Parties shall use their
reasonable efforts to cause the Effective Time to occur within 60
days after the last to occur of (i) the effective date (including
expiration of any applicable waiting period) of the last required
Consent of any Regulatory Authority having authority over and
approving or exempting the Mergers, and (ii) the date on which
the shareholders of FBWP and CCBG approve this Agreement to the
extent such approval is required by applicable Law. The actual
Effective Time within the 60-day period shall be mutually agreed
upon by CCBG and FBWP.
ARTICLE 2 TERMS OF MERGER
ARTICLE 2.1 CHARTER . The Articles of Incorporation of CCBG in
effect immediately prior to the Effective Time shall be the
Articles of Incorporation of the Surviving Corporation until duly
amended or repealed.
ARTICLE 2.2 BYLAWS . The Bylaws of CCBG in effect immediately
prior to the Effective Time shall be the Bylaws of the Surviving
Corporation until duly amended or repealed.
ARTICLE 2.3 DIRECTORS AND OFFICERS . The directors of CCBG in
office immediately prior to the Effective Time shall serve as the
directors of the Surviving Corporation from and after the
Effective Time in accordance with the Bylaws of the Surviving
Corporation. The officers of CCBG in office immediately prior to
the Effective Time, together with such additional persons as may
thereafter be elected, shall serve as the officers of the
Surviving Corporation from and after the Effective Time in
accordance with the Bylaws of the Surviving Corporation.
ARTICLE 3 MANNER OF CONVERTING SHARES
ARTICLE 3.1 CONVERSION OF SHARES . Subject to the provisions of
this Article 3, at the Effective Time, by virtue of the Holding
Company Merger and without any action on the part of CCBG, FBWP,
First National or CCB or the shareholders of the foregoing, the
shares of the constituent corporations shall be converted as
follows:
(a) Each share of capital stock of CCBG issued and
outstanding immediately prior to the Effective Time shall remain
issued and outstanding from and after the Effective Time.
(b) Subject to Section 3.6, each share of FBWP Common
Stock, excluding shares held by any FBWP Entity or any CCBG
Entity, in each case other than in a fiduciary capacity or as a
result of debts previously contracted, and excluding shares held
by shareholders who perfect their statutory dissenters' rights as
provided in Section 3.4 issued and outstanding immediately prior
to the Effective Time shall cease to be outstanding and shall be
converted into and exchanged for the right to receive 3.6419
shares of CCBG Common Stock (the "Share Exchange Ratio") and
$17.7543 in cash (the "Cash Exchange Ratio") (collectively, the
"Exchange Ratio").
(c) Each share of capital stock of CCB issued and
outstanding immediately prior to the Effective Time shall remain
issued and outstanding from and after the Effective Time.
(d) Each share of capital stock of First National
issued and outstanding immediately prior to the Effective Time
shall cease to be outstanding and shall be extinguished from and
after the consummation of the Bank Merger.
ARTICLE 3.2 ANTI-DILUTION PROVISIONS . In the event CCBG
changes the number of shares of CCBG Common Stock issued and
outstanding prior to the Effective Time as a result of a stock
split, stock dividend, or similar recapitalization with respect
to such stock and the record date therefor (in the case of a
stock dividend) or the effective date thereof (in the case of a
stock split or similar recapitalization for which a record date
is not established) shall be prior to the Effective Time, the
Exchange Ratio shall be proportionately adjusted.
ARTICLE 3.3 SHARES HELD BY FBWP OR CCBG . Each of the shares of
FBWP Common Stock held by any FBWP Entity or by any CCBG Entity,
in each case other than in a fiduciary capacity or as a result of
debts previously contracted, shall be canceled and retired at the
Effective Time and no consideration shall be issued in exchange
therefor.
ARTICLE 3.4 DISSENTING SHAREHOLDERS . Any holder of shares of
FBWP Common Stock who perfects his or her dissenters' rights in
accordance with and as contemplated by Section 14-2-1302 of the
GBCC shall be entitled to receive the value of such shares in
cash as determined pursuant to such provision of Law; provided,
that no such payment shall be made to any dissenting shareholder
unless and until such dissenting shareholder has complied with
the applicable provisions of the GBCC and surrendered to FBWP the
certificate or certificates representing the shares for which
payment is being made. In the event that after the Effective
Time a dissenting shareholder of FBWP fails to perfect, or
effectively withdraws or loses, his or her right to appraisal and
of payment for his or her shares, subject to CCBG's consent in
its sole discretion, CCBG shall issue and deliver the
consideration to which such holder of shares of FBWP Common Stock
is entitled under this Article 3 (without interest) upon
surrender by such holder of the certificate or certificates
representing shares of FBWP Common Stock held by him or her.
ARTICLE 3.5 FRACTIONAL SHARES . Notwithstanding any other
provision of this Agreement, each holder of shares of FBWP Common
Stock exchanged pursuant to the Holding Company Merger who would
otherwise have been entitled to receive a fraction of a share of
CCBG Common Stock (after taking into account all certificates
delivered by such holder) shall receive, in lieu thereof, cash
(without interest) in an amount equal to such fractional part of
a share of CCBG Common Stock multiplied by the average market
value of one share of CCBG Common Stock at the Effective Time
(i.e., the average of the last sale price of CCBG Common Stock on
the Nasdaq National Market (as reported by The Wall Street
Journal or, if not reported thereby, any other authoritative
source selected by CCBG) during each of the 10 trading days prior
to the Effective Time). No such holder will be entitled to
dividends, voting rights, or any other rights as a shareholder in
respect of any fractional shares.
ARTICLE 3.6 ▇▇▇▇▇▇ LOAN. Notwithstanding any other provision of
this Agreement, CCBG shall at the Effective Date withhold from
the Cash Exchange Ratio portion of the consideration payable
under Section 3.1(b), an aggregate amount (the "Withholding
Amount") equal to (i) $1,600,000 minus any amount paid prior to
the Effective Time by the USDA to First National with respect to
the ▇▇▇▇▇▇ Loan and any amount collected prior to the Effective
Time by First National with respect to the sale of any of the
collateral securing the ▇▇▇▇▇▇ Loan, and (ii) $166,000 minus
20.75% of any amount paid prior to the Effective Time by the USDA
to First Peoples Bank of Pine Mountain ("First Peoples") with
respect to the ▇▇▇▇▇▇ Loan and 20.75% of any amount collected
prior to the Effective Time by First Peoples with respect to the
sale of any of the collateral securing the ▇▇▇▇▇▇ Loan. The
receipt of any payments and the collection of any amounts upon
the sale of collateral referred to in this Section shall be
confirmed in writing to CCBG's satisfaction. The Withholding
Amount shall be held in escrow by Capital City Trust Company (the
"Escrow Agent"). The Withholding Amount shall be held in escrow
for a period of six months from the Effective Time. During this
six-month period, any amounts received by First National, First
Peoples or their successors with respect to the USDA Guarantee or
from the sale of any collateral securing the ▇▇▇▇▇▇ Loan shall be
communicated to the Escrow Agent in writing by CCBG and the
Escrow Agent shall pay promptly after the expiration of such six-
month period a per share amount of the Withholding Amount to the
shareholders of FBWP Common Stock that owned shares immediately
prior to the Effective Time. In such event, the amount per share
of FBWP Common Stock paid by the Escrow Agent to such
shareholders shall equal (y) with respect to payments or amounts
received that are attributable to the First National portion of
the ▇▇▇▇▇▇ Loan, the amount of the USDA payment and/or the amount
received in the sale of collateral (plus interest from the
Effective Time but less any costs, fees and expenses of the
Escrow Agent) divided by the number of shares of FBWP Common
Stock issued and outstanding immediately prior to the Effective
Time, or (z) with respect to payments or amounts received that
are attributable to the First Peoples portion of the ▇▇▇▇▇▇ Loan,
20.75% of the amount of the USDA payment or the amount received
in the sale of collateral each (plus interest from the Effective
Time but less any costs, fees and expenses of the Escrow Agent)
divided by the number of shares of FBWP Common Stock issued and
outstanding immediately prior to the Effective Time. On the date
which is six months after the Effective Time, any remaining
portion of the Withholding Amount and any remaining accrued
interest thereon held by the Escrow Agent shall be promptly paid
to CCBG. Notwithstanding the foregoing, the Withholding Amount
shall not be placed in escrow with the Escrow Agent if, prior to
the Effective Time, (w) First National has received at least
$1,250,000 of the USDA Guarantee amount, (x) First Peoples has
received funds from the USDA equal to at least 75% of the USDA
Guarantee amount attributable to First Peoples, (y) CCBG has
received written confirmation from FBWP of both of these payments
by the USDA, and (z) FBWP shall have delivered to CCBG written
confirmation from a representative of the USDA that the USDA
liquidation plan for the ▇▇▇▇▇▇ Loan has been approved, as
submitted and without modification, by the USDA at the national
level.
ARTICLE 4 EXCHANGE OF SHARES
ARTICLE 4.1 EXCHANGE PROCEDURES . Promptly after the Effective
Time, CCBG and FBWP shall cause the exchange agent selected by
CCBG (the "Exchange Agent") to mail to each holder of record of a
certificate or certificates which represented shares of FBWP
Common Stock immediately prior to the Effective Time (the
"Certificates") appropriate transmittal materials and
instructions (which shall specify that delivery shall be
effected, and risk of loss and title to such Certificates shall
pass, only upon proper delivery of such Certificates to the
Exchange Agent). The Certificate or Certificates of FBWP Common
Stock so delivered shall be duly endorsed as the Exchange Agent
may require. In the event of a transfer of ownership of shares
of FBWP Common Stock represented by Certificates that are not
registered in the transfer records of FBWP, the consideration
provided in Section 3.1 may be issued to a transferee if the
Certificates representing such shares are delivered to the
Exchange Agent, accompanied by all documents required to evidence
such transfer and by evidence satisfactory to the Exchange Agent
that any applicable stock transfer taxes have been paid. If any
Certificate shall have been lost, stolen, mislaid or destroyed,
upon receipt of (i) an affidavit of that fact from the holder
claiming such Certificate to be lost, mislaid, stolen or
destroyed, (ii) such bond, security or indemnity as CCBG and the
Exchange Agent may reasonably require and (iii) any other
documents necessary to evidence and effect the bona fide exchange
thereof, the Exchange Agent shall issue to such holder the
consideration into which the shares represented by such lost,
stolen, mislaid or destroyed Certificate shall have been
converted. The Exchange Agent may establish such other
reasonable and customary rules and procedures in connection with
its duties as it may deem appropriate. After the Effective Time,
each holder of shares of FBWP Common Stock (other than shares to
be canceled pursuant to Section 3.3 or as to which statutory
dissenters' rights have been perfected as provided in Section
3.4) issued and outstanding at the Effective Time shall surrender
the Certificate or Certificates representing such shares to the
Exchange Agent and shall promptly upon surrender thereof receive
in exchange therefor the consideration provided in Section 3.1,
together with all undelivered dividends or distributions in
respect of such shares (without interest thereon) pursuant to
Section 4.2. To the extent required by Section 3.5, each holder
of shares of FBWP Common Stock issued and outstanding at the
Effective Time also shall receive, upon surrender of the
Certificate or Certificates, cash in lieu of any fractional share
of CCBG Common Stock to which such holder may be otherwise
entitled (without interest). CCBG shall not be obligated to
deliver the consideration to which any former holder of FBWP
Common Stock is entitled as a result of the Holding Company
Merger until such holder surrenders such holder's Certificate or
Certificates for exchange as provided in this Section 4.1. Any
other provision of this Agreement notwithstanding, neither CCBG
nor the Exchange Agent shall be liable to a holder of FBWP Common
Stock for any amounts paid or property delivered in good faith to
a public official pursuant to any applicable abandoned property,
escheat or similar Law. Adoption of this Agreement by the
shareholders of FBWP shall constitute ratification of the
appointment of the Exchange Agent.
ARTICLE 4.2 RIGHTS OF FORMER FBWP SHAREHOLDERS . At the
Effective Time, the stock transfer books of FBWP shall be closed
as to holders of FBWP Common Stock immediately prior to the
Effective Time and no transfer of FBWP Common Stock by any such
holder shall thereafter be made or recognized. Until surrendered
for exchange in accordance with the provisions of Section 4.1,
each Certificate theretofore representing shares of FBWP Common
Stock (other than shares to be canceled pursuant to Sections 3.3
and 3.4) shall from and after the Effective Time represent for
all purposes only the right to receive the consideration provided
in Sections 3.1 and 3.5 in exchange therefor, subject, however,
to the Surviving Corporation's obligation to pay any dividends or
make any other distributions with a record date prior to the
Effective Time which have been declared or made by FBWP in
respect of such shares of FBWP Common Stock in accordance with
the terms of this Agreement and which remain unpaid at the
Effective Time. Whenever a dividend or other distribution is
declared by CCBG on the CCBG Common Stock, the record date for
which is at or after the Effective Time, the declaration shall
include dividends or other distributions on all shares of CCBG
Common Stock issuable pursuant to this Agreement. No dividend or
other distribution payable to the holders of record of CCBG
Common Stock as of any time subsequent to the Effective Time
shall be delivered to the holder of any Certificate until such
holder surrenders such Certificate for exchange as provided in
Section 4.1. However, upon surrender of such Certificate, both
the CCBG Common Stock certificate (together with all such
undelivered dividends or other distributions, without interest)
and any undelivered dividends and cash payments payable hereunder
(without interest) shall be delivered and paid with respect to
each share represented by such Certificate.
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF FBWP
FBWP hereby represents and warrants to CCBG as follows:
ARTICLE 5.1 ORGANIZATION, STANDING, AND POWER . FBWP is a
corporation duly organized, validly existing, and in good
standing under the Laws of the State of Georgia, and has the
corporate power and authority to carry on its business as now
conducted and to own, lease and operate its Assets. FBWP is duly
qualified or licensed to transact business as a foreign
corporation in good standing in the States of the United States
and foreign jurisdictions where the character of its Assets or
the nature or conduct of its business requires it to be so
qualified or licensed, except for such jurisdictions in which the
failure to be so qualified or licensed is not reasonably likely
to have, individually or in the aggregate, a FBWP Material
Adverse Effect. The minute books and other organizational
documents and corporate records for FBWP have been made available
to CCBG for its review and, except as disclosed in Section 5.1 of
the FBWP Disclosure Memorandum, are true and complete in all
material respects as in effect as of the date of this Agreement
and accurately reflect in all material respects all amendments
thereto and all proceedings of the Board of Directors and
shareholders thereof.
ARTICLE 5.2 AUTHORITY OF FBWP; NO BREACH BY AGREEMENT .
(a) FBWP has the corporate power and authority
necessary to execute, deliver, and perform its obligations under
this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated
herein, including the Mergers, have been duly and validly
authorized by all necessary corporate action in respect thereof
on the part of FBWP, subject to the approval of this Agreement by
the holders of a majority of the outstanding shares of FBWP
Common Stock, which is the only shareholder vote required for
approval of this Agreement and consummation of the Mergers by
FBWP. Subject to such requisite shareholder approval, this
Agreement represents a legal, valid, and binding obligation of
FBWP, enforceable against FBWP in accordance with its terms
(except in all cases as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, receivership,
conservatorship, moratorium, or similar Laws affecting the
enforcement of creditors' rights generally and except that the
availability of the equitable remedy of specific performance or
injunctive relief is subject to the discretion of the court
before which any proceeding may be brought).
(b) Neither the execution and delivery of this
Agreement by FBWP, nor the consummation by FBWP of the
transactions contemplated hereby, nor compliance by FBWP with any
of the provisions hereof, will (i) conflict with or result in a
breach of any provision of FBWP's Articles of Incorporation or
Bylaws or the certificate or articles of incorporation or bylaws
of any FBWP Subsidiary or any resolution adopted by the board of
directors or the shareholders of any FBWP Entity, or (ii) except
as disclosed in Section 5.2 of the FBWP Disclosure Memorandum,
constitute or result in a Default under, or require any Consent
pursuant to, or result in the creation of any Lien on any Asset
of any FBWP Entity under, any Contract or Permit of any FBWP
Entity, where such Default or Lien, or any failure to obtain such
Consent, is reasonably likely to have, individually or in the
aggregate, a FBWP Material Adverse Effect or where such event
would cause a breach hereof or a Default hereunder, or (iii)
subject to receipt of the requisite Consents referred to in
Section 9.1(b), constitute or result in a Default under, or
require any Consent pursuant to, any Law or Order applicable to
any FBWP Entity or any of their respective material Assets
(including any CCBG Entity or any FBWP Entity becoming subject to
or liable for the payment of any Tax on any of the Assets owned
by any CCBG Entity or any FBWP Entity being reassessed or
revalued by any Taxing authority).
(c) Other than in connection or compliance with the
provisions of the Securities Laws, applicable state corporate and
securities Laws, and rules of the NASD, and other than Consents
required from Regulatory Authorities, and other than notices to
or filings with the Internal Revenue Service or the Pension
Benefit Guaranty Corporation with respect to any employee benefit
plans, or under the HSR Act, and other than Consents, filings, or
notifications which, if not obtained or made, are not reasonably
likely to have, individually or in the aggregate, a FBWP Material
Adverse Effect, no notice to, filing with, or Consent of, any
public body or authority is necessary for the consummation by
FBWP of the Mergers and the other transactions contemplated in
this Agreement.
ARTICLE 5.3 CAPITAL STOCK .
(a) The authorized capital stock of FBWP consists of
(i) 1,000,000 shares of FBWP Common Stock, of which 192,481
shares are issued and outstanding as of the date of this
Agreement and not more than 192,481 shares will be issued and
outstanding at the Effective Time, and (ii) no shares of
preferred stock are authorized, issued or outstanding. All of
the issued and outstanding shares of capital stock of FBWP are
duly and validly issued and outstanding and are fully paid and
nonassessable under the GBCC. None of the outstanding shares of
capital stock of FBWP has been issued in violation of any
preemptive rights of the current or past shareholders of FBWP.
(b) Except as set forth in Section 5.3(a), or as
disclosed in Section 5.3(b) of the FBWP Disclosure Memorandum,
there are no shares of capital stock or other equity securities
of FBWP outstanding and no outstanding Equity Rights relating to
the capital stock of FBWP.
ARTICLE 5.4 FBWP SUBSIDIARIES . FBWP has disclosed in Section
5.4 of the FBWP Disclosure Memorandum all of the FBWP
Subsidiaries that are corporations (identifying its jurisdiction
of incorporation, each jurisdiction in which it is qualified
and/or licensed to transact business, and the number of shares
owned and percentage ownership interest represented by such share
ownership) and all of the FBWP Subsidiaries that are general or
limited partnerships, limited liability companies, trusts or
other non-corporate entities (identifying the Law under which
such entity is organized, each jurisdiction in which it is
qualified and/or licensed to transact business, the type of
entity and the amount and nature of the ownership interest
therein). Except as disclosed in Section 5.4 of the FBWP
Disclosure Memorandum, FBWP or one of its wholly-owned
Subsidiaries owns all of the issued and outstanding shares of
capital stock (or other equity interests) of each FBWP
Subsidiary. No capital stock (or other equity interest) of any
FBWP Subsidiary is or may become required to be issued (other
than to another FBWP Entity) by reason of any Equity Rights, and
there are no Contracts by which any FBWP Subsidiary is bound to
issue (other than to another FBWP Entity) additional shares of
its capital stock (or other equity interests) or Equity Rights or
by which any FBWP Entity is or may be bound to transfer any
shares of the capital stock (or other equity interests) of any
FBWP Subsidiary (other than to another FBWP Entity). There are
no Contracts relating to the rights of any FBWP Entity to vote or
to dispose of any shares of the capital stock (or other equity
interests) of any FBWP Subsidiary. All of the shares of capital
stock (or other equity interests) of each FBWP Subsidiary held by
a FBWP Entity are fully paid and (except pursuant to 12 USC
Section 55 in the case of national banks and comparable,
applicable state Law, if any, in the case of state depository
institutions) nonassessable under the applicable corporation Law
of the jurisdiction in which such Subsidiary is incorporated or
organized and are owned by the FBWP Entity free and clear of any
Lien. Except as disclosed in Section 5.4 of the FBWP Disclosure
Memorandum, each FBWP Subsidiary is either a bank, a savings
association, or a corporation, and each such Subsidiary is duly
organized, validly existing, and (as to corporations) in good
standing under the Laws of the jurisdiction in which it is
incorporated or organized, and has the corporate power and
authority necessary for it to own, lease, and operate its Assets
and to carry on its business as now conducted. Each FBWP
Subsidiary is duly qualified or licensed to transact business as
a foreign corporation in good standing in the States of the
United States and foreign jurisdictions where the character of
its Assets or the nature or conduct of its business requires it
to be so qualified or licensed, except for such jurisdictions in
which the failure to be so qualified or licensed is not
reasonably likely to have, individually or in the aggregate, a
FBWP Material Adverse Effect. Each FBWP Subsidiary that is a
depository institution is an "insured institution" as defined in
the Federal Deposit Insurance Act and applicable regulations
thereunder, and the deposits in which are insured by the Bank
Insurance Fund. The minute books, and other organizational and
corporate documents for each FBWP Subsidiary have been made
available to CCBG for its review, and, except as disclosed in
Section 5.4 of the FBWP Disclosure Memorandum, are true and
complete in all material respects as in effect as of the date of
this Agreement and accurately reflect in all material respects
all amendments thereto and all proceedings of the Board of
Directors, all committees of the Board of Directors and
shareholders thereof.
ARTICLE 5.5 FINANCIAL STATEMENTS . Each of the FBWP Financial
Statements (including, in each case, any related notes) was
prepared in accordance with GAAP applied on a consistent basis
throughout the periods involved (except as may be indicated in
the notes to such financial statements), and fairly presents in
all material respects the consolidated financial position of FBWP
and its Subsidiaries as at the respective dates and the
consolidated results of operations and cash flows for the periods
indicated, except that the unaudited interim financial statements
were or are subject to normal and recurring year-end adjustments
which were not or are not expected to be material in amount or
effect.
ARTICLE 5.6 ABSENCE OF UNDISCLOSED LIABILITIES . No FBWP Entity
has any Liabilities that are reasonably likely to have,
individually or in the aggregate, a FBWP Material Adverse Effect,
except Liabilities which are accrued or reserved against in the
consolidated balance sheets of FBWP as of December 31, 1999,
included in the FBWP Financial Statements delivered prior to the
date of this Agreement or reflected in the notes thereto. Except
as set forth in Section 5.6 of the FBWP Disclosure Memorandum, no
FBWP Entity has incurred or paid any Liability since December 31,
1999, except for such Liabilities incurred or paid (i) in the
ordinary course of business consistent with past business
practice and which are not reasonably likely to have,
individually or in the aggregate, a FBWP Material Adverse Effect
or (ii) in connection with the transactions contemplated by this
Agreement.
ARTICLE 5.7 ABSENCE OF CERTAIN CHANGES OR EVENTS . Since
December 31, 1999, except as disclosed in the FBWP Financial
Statements delivered prior to the date of this Agreement or as
disclosed in Section 5.7 of the FBWP Disclosure Memorandum, (i)
there have been no events, changes, or occurrences which have
had, or are reasonably likely to have, individually or in the
aggregate, a FBWP Material Adverse Effect, and (ii) the FBWP
Entities have not taken any action, or failed to take any action,
prior to the date of this Agreement, which action or failure, if
taken after the date of this Agreement, would represent or result
in a material breach or violation of any of the covenants and
agreements of FBWP provided in Article 7.
ARTICLE 5.8 TAX MATTERS .
(a) All Tax Returns required to be filed by or on
behalf of any of the FBWP Entities have been timely filed or
requests for extensions have been timely filed, granted, and have
not expired for periods ended on or before the date of the most
recent fiscal year end immediately preceding the Effective Time,
except to the extent that all such failures to file, taken
together, are not reasonably likely to have a FBWP Material
Adverse Effect, and all Tax Returns filed are complete and
accurate in all material respects. In particular, and without in
any manner limiting the foregoing, none of the foregoing Tax
Returns contains any position which is or would be subject to
penalties under section 6662 of the Internal Revenue Code (or any
corresponding provision of state, local or foreign Tax law). An
extension of time within which to file any Tax Return which has
not been filed has not been requested or granted. With respect
to all amounts in respect of Taxes imposed upon FBWP, or for
which FBWP is or could be liable, whether to taxing authorities
(as, for example, under law) or to other persons or entities (as,
for example, under tax allocation agreements), with respect to
all taxable periods (or portions thereof) ending on or before the
Effective Time, all applicable Tax laws and agreements have been
fully complied with, and all such amounts required to be paid by
FBWP to taxing authorities or others on or before the date hereof
have been paid. As of the date of this Agreement, there is no
audit examination, deficiency, or refund Litigation with respect
to any Taxes, except as reserved against in the FBWP Financial
Statements delivered prior to the date of this Agreement or as
disclosed in Section 5.8 of the FBWP Disclosure Memorandum. No
issues have been raised (and are currently pending) by any taxing
authority in connection with any Tax Returns of FBWP. FBWP's
federal income Tax Returns have not been audited by the IRS. All
Taxes and other Liabilities due with respect to completed and
settled examinations or concluded Litigation have been paid.
There are no Liens with respect to Taxes upon any of the Assets
of the FBWP Entities, except for any such Liens which are not
reasonably likely to have a FBWP Material Adverse Effect.
(b) None of the FBWP Entities has executed an
extension or waiver of any statute of limitations on the
assessment or collection of any Tax due (excluding such statutes
that relate to years currently under examination by the Internal
Revenue Service or other applicable taxing authorities) that is
currently in effect. Section 5.8 of the FBWP Disclosure Schedule
sets forth (1) the taxable years of FBWP as to which the
respective statutes of limitations with respect to Taxes have not
expired, and (2) with respect to such taxable years, sets forth
those years for which examinations have been completed, those
years for which examinations are presently being conducted, those
years for which examinations have not been initiated, and those
years for which required Tax Returns have not yet been filed.
(c) As of December 31, 1999, the provision for any
Taxes due or to become due for any of the FBWP Entities for the
period or periods through and including the date of the
respective FBWP Financial Statements that has been made and is
reflected on such FBWP Financial Statements is sufficient to
cover all such Taxes in accordance with GAAP. The unpaid Taxes
of FBWP do not exceed the reserve for Tax liability (including
any reserve for deferred Taxes established to reflect timing
differences between book and Tax income) set forth or included in
FBWP's most recent balance sheet as adjusted for the passage of
time through the Effective Time in accordance with the past
custom and practice of FBWP.
(d) Deferred Taxes of the FBWP Entities have been
provided for in accordance with GAAP.
(e) None of the FBWP Entities is a party to any Tax
allocation or Tax sharing agreement and none of the FBWP Entities
has been a member of an affiliated group filing a consolidated
federal income Tax Return (other than a group the common parent
of which was FBWP) or has any Liability for Taxes of any Person
(other than FBWP and its Subsidiaries) under Treasury Regulation
Section 1.1502-6 (or any similar provision of state, local or
foreign Law) as a transferee or successor or by Contract or
otherwise.
(f) Each of the FBWP Entities is in compliance with,
and its records contain all information and documents (including
properly completed IRS Forms W-9) necessary to comply with, all
applicable information reporting and Tax withholding requirements
under federal, state, and local Tax Laws, and such records
identify with specificity all accounts subject to backup
withholding under Section 3406 of the Internal Revenue Code,
except for such instances of noncompliance and such omissions as
are not reasonably likely to have, individually or in the
aggregate, a FBWP Material Adverse Effect.
(g) Except as disclosed in Section 5.8 of the FBWP
Disclosure Memorandum, none of the FBWP Entities has made any
payments, is obligated to make any payments, or is a party to any
Contract that could obligate it to make any payments that would
be disallowed as a deduction under Section 280G or 162(m) of the
Internal Revenue Code.
(h) There has not been an ownership change, as defined
in Internal Revenue Code Section 382(g), of the FBWP Entities
that occurred during or after any Taxable Period in which the
FBWP Entities incurred a net operating loss that carries over to
any Taxable Period ending after December 31, 1999.
(i) No FBWP Entity has or has had in any foreign
country a permanent establishment, as defined in any applicable
tax treaty or convention between the United States and such
foreign country.
(j) All material elections with respect to Taxes
affecting FBWP as of the date hereof are set forth in Section 5.8
of the FBWP Disclosure Schedule. After the date hereof, no
election with respect to Taxes will be made without the written
consent of CCBG.
(k) None of the assets of FBWP is property which FBWP
is required to treat as being owned by any other person pursuant
to the so-called "safe harbor lease" provisions of former section
168(f)(8) of the Internal Revenue Code.
(l) None of the assets of FBWP directly or indirectly
secures any debt the interest on which is tax exempt under
section 103(a) of the Internal Revenue Code.
(m) None of the assets of FBWP is "tax-exempt use
property" within the meaning of section 168(h) of the Internal
Revenue Code.
(n) FBWP is not, and has not been, a United States
real property holding corporation (as defined in section
897(c)(2) of the Internal Revenue Code) during the applicable
period specified in section 897(c)(1)(A)(ii) of the Internal
Revenue Code.
(o) FBWP is not a party to any joint venture,
partnership, or other arrangement or contract which could be
treated as a partnership for federal income tax purposes.
(p) Section 5.8 of the FBWP Disclosure Schedule sets
forth as of the date hereof (i) the basis of FBWP in its assets,
(ii) as of June 30, 2000, the current and accumulated earnings
and profits of FBWP, (iii) the amount of any net operating loss,
net capital loss, unused investment credit or other credit,
unused foreign tax, or excess charitable contribution allocable
to FBWP, and (iv) the amount of any deferred gain or loss
allocable to FBWP arising out of any intercompany transactions.
(q) Each asset with respect to which FBWP claims
depreciation, amortization or similar expense for Tax purposes is
owned for Tax purposes by FBWP.
(r) Except as disclosed in the FBWP Financial
Statements or FBWP's Tax Returns, no item of income or gain
reported by FBWP for financial accounting purposes in any pre-
closing period is required to be included in taxable income for a
post-closing period.
(s) FBWP has not made nor is bound by any election
under Section 197 of the Internal Revenue Code.
(t) Neither FBWP nor any FBWP Subsidiary has any
excess loss account (as defined in Treasury Regulation Section
1.1502-19) with respect to the stock of any FBWP Subsidiary.
(u) There are no outstanding rulings of, or requests
for rulings with, any Tax authority addressed to FBWP that are,
or if issued would be, binding on FBWP.
ARTICLE 5.9 ALLOWANCE FOR POSSIBLE LOAN LOSSES . In the opinion
of management of FBWP, the allowances for possible loan and lease
credit losses (collectively, the "Allowance") shown on the
consolidated balance sheets of FBWP immediately prior to the
Effective Time will be, as of the date thereof, adequate (within
the meaning of GAAP and applicable regulatory requirements or
guidelines) to provide for all known or reasonably anticipated
losses relating to or inherent in the loan and lease portfolio
(including accrued interest receivables) of the FBWP Entities and
other extensions of credit (including letters of credit) by the
FBWP Entities as of the dates thereof.
ARTICLE 5.10 ASSETS .
(a) Except as disclosed in Section 5.10 of the FBWP
Disclosure Memorandum or as disclosed or reserved against in the
FBWP Financial Statements delivered prior to the date of this
Agreement, the FBWP Entities have good and marketable title, free
and clear of all Liens, to all of their respective Assets, except
for any such Liens or other defects of title which are not
reasonably likely to have a FBWP Material Adverse Effect. All
tangible properties used in the businesses of the FBWP Entities
are in good condition, reasonable wear and tear excepted, and are
usable in the ordinary course of business consistent with FBWP's
past practices.
(b) All Assets which are material to FBWP's business
on a consolidated basis, held under leases or subleases by any of
the FBWP Entities, are held under valid Contracts enforceable by
the FBWP Entity and to the Knowledge of FBWP as to the counter-
party to such Contracts in accordance with their respective terms
(except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or other Laws
affecting the enforcement of creditors' rights generally and
except that the availability of the equitable remedy of specific
performance or injunctive relief is subject to the discretion of
the court before which any proceedings may be brought), and each
such Contract is in full force and effect.
(c) The FBWP Entities currently maintain insurance
similar in amounts, scope, and coverage to that maintained by
other peer banking organizations. None of the FBWP Entities has
received notice from any insurance carrier that (i) any policy of
insurance will be canceled or that coverage thereunder will be
reduced or eliminated, or (ii) premium costs with respect to such
policies of insurance will be substantially increased. There are
presently no claims for amounts exceeding in any individual case
$5,000, or in the aggregate $100,000, pending under such policies
of insurance and no notices of claims in excess of such amounts
have been given by any FBWP Entity under such policies.
(d) The Assets of the FBWP Entities include all Assets
required to operate the business of the FBWP Entities as
presently conducted.
(e) Except as disclosed and described in detail in
Section 5.10(e) of the FBWP Disclosure Memorandum, neither FBWP
nor any FBWP Subsidiary holds any deposits or has made any loans
to any individuals or related group of individuals which (i) in
the case of deposits, individually or in the aggregate exceed 5%
of the total consolidated deposits of FBWP as of June 30, 2000,
or (ii) in the case of loans, individually or in the aggregate
exceed 5% of the total consolidated loans of FBWP as of June 30, 2000.
ARTICLE 5.11 INTELLECTUAL PROPERTY . Each FBWP Entity owns or
has a license to use all of the Intellectual Property used by
such FBWP Entity in the course of its business. Each FBWP Entity
is the owner of or has a license to any Intellectual Property
sold or licensed to a third party by such FBWP Entity in
connection with such FBWP Entity's business operations, and such
FBWP Entity has the right to convey by sale or license any
Intellectual Property so conveyed. No FBWP Entity is in Default
under any of its Intellectual Property licenses. No proceedings
have been instituted, or are pending or to the Knowledge of FBWP
threatened, which challenge the rights of any FBWP Entity with
respect to Intellectual Property used, sold or licensed by such
FBWP Entity in the course of its business, nor has any person
claimed or alleged any rights to such Intellectual Property. The
conduct of the business of the FBWP Entities does not infringe
any Intellectual Property of any other person. Except as
disclosed in Section 5.11 of the FBWP Disclosure Memorandum, no
FBWP Entity is obligated to pay any recurring royalties to any
Person with respect to any such Intellectual Property. Except as
disclosed in Section 5.11 of the FBWP Disclosure Memorandum,
every officer, director, or employee of any FBWP Entity is a
party to a Contract which requires such officer, director or
employee to assign any interest in any Intellectual Property to a
FBWP Entity and to keep confidential any trade secrets,
proprietary data, customer information, or other business
information of a FBWP Entity, and no such officer, director or
employee is party to any Contract with any Person other than a
FBWP Entity which requires such officer, director or employee to
assign any interest in any Intellectual Property to any Person
other than a FBWP Entity or to keep confidential any trade
secrets, proprietary data, customer information, or other
business information of any Person other than a FBWP Entity.
Except as disclosed in Section 5.11 of the FBWP Disclosure
Memorandum, no officer, director or, to the Knowledge of FBWP,
any employee of any FBWP Entity is party to any Contract which
restricts or prohibits such officer, director or employee from
engaging in activities competitive with any Person, including any
FBWP Entity.
ARTICLE 5.12 ENVIRONMENTAL MATTERS .
(a) To the Knowledge of FBWP, each FBWP Entity, its
Participation Facilities, and its Operating Properties are, and
have been, in compliance with all Environmental Laws, except for
violations which are not reasonably likely to have, individually
or in the aggregate, a FBWP Material Adverse Effect.
(b) There is no Litigation pending or, to the
Knowledge of FBWP, threatened before any court, governmental
agency, or authority or other forum in which any FBWP Entity or
any of its Operating Properties or Participation Facilities (or
FBWP in respect of such Operating Property or Participation
Facility) has been or, with respect to threatened Litigation, may
be named as a defendant (i) for alleged noncompliance (including
by any predecessor) with any Environmental Law or (ii) relating
to the release, discharge, spillage, or disposal into the
environment of any Hazardous Material, whether or not occurring
at, on, under, adjacent to, or affecting (or potentially
affecting) a site owned, leased, or operated by any FBWP Entity
or any of its Operating Properties or Participation Facilities,
nor is there any reasonable basis for any Litigation of a type
described in this sentence.
(c) During the period of (i) any FBWP Entity's
ownership or operation of any of their respective current
properties, (ii) any FBWP Entity's participation in the
management of any Participation Facility, or (iii) any FBWP
Entity's holding of a security interest in a Operating Property,
there have been no releases, discharges, spillages, or disposals
of Hazardous Material in, on, under, or affecting (or potentially
affecting) such properties; provided that with respect to the
period set forth in (iii) above, this representation shall be
made to the Knowledge of FBWP. Prior to the period of (i) any
FBWP Entity's ownership or operation of any of their respective
current properties, (ii) any FBWP Entity's participation in the
management of any Participation Facility, or (iii) any FBWP
Entity's holding of a security interest in a Operating Property,
to the Knowledge of FBWP, there were no releases, discharges,
spillages, or disposals of Hazardous Material in, on, under, or
affecting any such property, Participation Facility or Operating
Property.
ARTICLE 5.13 COMPLIANCE WITH LAWS . FBWP is duly registered as
a bank holding company under the BHC Act. Each FBWP Entity has
in effect all Permits necessary for it to own, lease, or operate
its material Assets and to carry on its business as now
conducted, except for those Permits the absence of which are not
reasonably likely to have, individually or in the aggregate, a
FBWP Material Adverse Effect, and there has occurred no Default
under any such Permit, other than Defaults which are not
reasonably likely to have, individually or in the aggregate, a
FBWP Material Adverse Effect. Except as disclosed in Section
5.13 of the FBWP Disclosure Memorandum, none of the FBWP Entities:
(a) is in Default under any of the provisions of its
Articles of Incorporation or Bylaws (or other governing instruments);
(b) is in Default under any Laws, Orders, or Permits
applicable to its business or employees conducting its business,
except for Defaults which are not reasonably likely to have,
individually or in the aggregate, a FBWP Material Adverse Effect; or
(c) since January 1, 1997, has received any
notification or communication from any agency or department of
federal, state, or local government or any Regulatory Authority
or the staff thereof (i) asserting that any FBWP Entity is not in
compliance with any of the Laws or Orders which such governmental
authority or Regulatory Authority enforces, (ii) threatening to
revoke any Permits, or (iii) requiring any FBWP Entity to enter
into or consent to the issuance of a cease and desist order,
formal agreement, directive, commitment, or memorandum of
understanding, or to adopt any Board resolution or similar
undertaking, which restricts materially the conduct of its
business or in any manner relates to its capital adequacy, its
credit or reserve policies, its management, or the payment of
dividends.
Copies of all material reports, correspondence, notices and
other documents relating to any inspection, audit, monitoring or
other form of review or enforcement action by a Regulatory
Authority have been made available to CCBG.
ARTICLE 5.14 LABOR RELATIONS . No FBWP Entity is the subject of
any Litigation asserting that it or any other FBWP Entity has
committed an unfair labor practice (within the meaning of the
National Labor Relations Act or comparable state law) or seeking
to compel it or any other FBWP Entity to bargain with any labor
organization as to wages or conditions of employment, nor is any
FBWP Entity party to any collective bargaining agreement, nor is
there any strike or other labor dispute involving any FBWP
Entity, pending or threatened, or to the Knowledge of FBWP is
there any activity involving any FBWP Entity's employees seeking
to certify a collective bargaining unit or engaging in any other
organization activity.
ARTICLE 5.15 EMPLOYEE BENEFIT PLANS .
(a) FBWP has disclosed in Section 5.15 of the FBWP
Disclosure Memorandum, and has delivered or made available to
CCBG prior to the execution of this Agreement copies in each case
of, all pension, retirement, profit-sharing, deferred
compensation, stock option, employee stock ownership, severance
pay, vacation, bonus, or other incentive plan, all other written
employee programs, arrangements, or agreements, all medical,
vision, dental, or other health plans, all life insurance plans,
and all other employee benefit plans or fringe benefit plans,
including "employee benefit plans" as that term is defined in
Section 3(3) of ERISA, currently adopted, maintained by,
sponsored in whole or in part by, or contributed to by any FBWP
Entity or ERISA 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 "FBWP Benefit Plans"). Any of the FBWP
Benefit Plans which is an "employee pension benefit plan," as
that term is defined in Section 3(2) of ERISA, is referred to
herein as a "FBWP ERISA Plan." Each FBWP ERISA Plan which is
also subject to Section 412 of the Internal Revenue Code is
referred to herein as a "FBWP Pension Plan." No FBWP Pension Plan
is or has been a multiemployer plan within the meaning of Section
3(37) of ERISA.
(b) All FBWP Benefit Plans are in compliance with the
applicable terms of ERISA, the Internal Revenue Code, and any
other applicable Laws the breach or violation of which are
reasonably likely to have, individually or in the aggregate, a
FBWP Material Adverse Effect. Each FBWP ERISA Plan which is
intended to be qualified under Section 401(a) of the Internal
Revenue Code has received a favorable determination letter from
the Internal Revenue Service, and FBWP is not aware of any
circumstances likely to result in revocation of any such
favorable determination letter. To the Knowledge of FBWP, no
FBWP Entity has engaged in a transaction with respect to any FBWP
Benefit Plan that, assuming the taxable period of such
transaction expired as of the date hereof, would subject any FBWP
Entity to a Tax imposed by either Section 4975 of the Internal
Revenue Code or Section 502(i) of ERISA.
(c) Except as disclosed in Section 5.15 of the FBWP
Disclosure Memorandum, no FBWP Pension Plan has any "unfunded
current liability," as that term is defined in Section
302(d)(8)(A) of ERISA, and the fair market value of the assets of
any such plan exceeds the plan's "benefit liabilities," as that
term is defined in Section 4001(a)(16) of ERISA, when determined
under actuarial factors that would apply if the plan terminated
in accordance with all applicable legal requirements. Since the
date of the most recent actuarial valuation, there has been (i)
no material change in the financial position of any FBWP Pension
Plan, (ii) no change in the actuarial assumptions with respect to
any FBWP Pension Plan, and (iii) no increase in benefits under
any FBWP Pension Plan as a result of plan amendments or changes
in applicable Law which is reasonably likely to have,
individually or in the aggregate, a FBWP Material Adverse Effect
or materially adversely affect the funding status of any such
plan. Neither any FBWP Pension Plan nor any "single-employer
plan," within the meaning of Section 4001(a)(15) of ERISA,
currently or formerly maintained by any FBWP Entity, or the
single-employer plan of any entity which is considered one
employer with FBWP under Section 4001 of ERISA or Section 414 of
the Internal Revenue Code or Section 302 of ERISA (whether or not
waived) (an "ERISA Affiliate") has an "accumulated funding
deficiency" within the meaning of Section 412 of the Internal
Revenue Code or Section 302 of ERISA. No FBWP Entity has
provided, or is required to provide, security to a FBWP Pension
Plan or to any single-employer plan of an ERISA Affiliate
pursuant to Section 401(a)(29) of the Internal Revenue Code.
(d) Within the six-year period preceding the Effective
Time, no Liability under Subtitle C or D of Title IV of ERISA has
been or is expected to be incurred by any FBWP Entity with
respect to any ongoing, frozen, or terminated single-employer
plan or the single-employer plan of any ERISA Affiliate. No FBWP
Entity has incurred any withdrawal Liability with respect to a
multiemployer plan under Subtitle B of Title IV of ERISA
(regardless of whether based on contributions of an ERISA
Affiliate. No notice of a "reportable event," within the meaning
of Section 4043 of ERISA for which the 30-day reporting
requirement has not been waived, has been required to be filed
for any FBWP Pension Plan or by any ERISA Affiliate within the
12-month period ending on the date hereof.
(e) Except as disclosed in Section 5.15 of the FBWP
Disclosure Memorandum, no FBWP Entity has any Liability for
retiree health and life benefits under any of the FBWP Benefit
Plans, other than health coverage continuation rights mandated by
applicable law, and there are no restrictions on the rights of
such FBWP Entity to amend or terminate any such retiree health or
benefit Plan without incurring any Liability thereunder.
(f) Except as disclosed in Section 5.15 of the FBWP
Disclosure Memorandum, neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated
hereby will (i) result in any payment (including severance,
unemployment compensation, golden parachute, or otherwise)
becoming due to any director or any employee of any FBWP Entity
from any FBWP Entity under any FBWP Benefit Plan or otherwise,
(ii) increase any benefits otherwise payable under any FBWP
Benefit Plan, or (iii) result in any acceleration of the time of
payment or vesting of any such benefit.
(g) The actuarial present values of all accrued
deferred compensation entitlements (including entitlements under
any executive compensation, supplemental retirement, or
employment agreement) of employees and former employees of any
FBWP Entity and their respective beneficiaries, other than
entitlements accrued pursuant to funded retirement plans subject
to the provisions of Section 401(a) and/or 412 of the Internal
Revenue Code or Section 302 of ERISA, have been fully reflected
on the FBWP Financial Statements to the extent required by and in
accordance with GAAP.
ARTICLE 5.16 MATERIAL CONTRACTS . Except as disclosed in
Section 5.16 of the FBWP Disclosure Memorandum or otherwise
reflected in the FBWP Financial Statements, none of the FBWP
Entities, nor any of their respective Assets, businesses, or
operations, is a party to, or is bound or affected by, or
receives benefits under, (i) any employment, severance,
termination, consulting, or retirement Contract providing for
aggregate payments to any Person in any calendar year in excess
of $25,000, (ii) any Contract relating to the borrowing of money
by any FBWP Entity or the guarantee by any FBWP Entity of any
such obligation (other than Contracts evidencing deposit
liabilities, purchases of federal funds, fully-secured repurchase
agreements, and Federal Home Loan Bank advances of depository
institution Subsidiaries, trade payables and Contracts relating
to borrowings or guarantees made in the ordinary course of
business), (iii) any Contract which prohibits or restricts any
FBWP Entity from engaging in any business activities in any
geographic area, line of business or otherwise in competition
with any other Person, (iv) any Contract between or among FBWP
Entities, (v) any Contract involving Intellectual Property (other
than Contracts entered into in the ordinary course with customers
and commercial "shrink-wrap" software licenses), (vi) any
Contract relating to the provision of data processing, network
communication, or other technical services to or by any FBWP
Entity, (vii) any Contract relating to the purchase or sale of
any goods or services (other than Contracts entered into in the
ordinary course of business and involving payments under any
individual Contract of less than $25,000), (viii) any exchange-
traded or over-the-counter swap, forward, future, option, cap,
floor, or collar financial Contract, or any other interest rate
or foreign currency protection Contract not included on its
balance sheet which is a financial derivative Contract, and (ix)
any other Contract or amendment thereto that would be required to
be filed with any relevant Regulatory Authority as of the date of
this Agreement (together with all Contracts referred to in
Sections 5.10 and 5.15(a), the "FBWP Contracts"). With respect
to each FBWP Contract and except as disclosed in Section 5.16 of
the FBWP Disclosure Memorandum: (i) the Contract is in full force
and effect; (ii) no FBWP Entity is in Default thereunder or would
be in Default thereunder as a result of this Agreement or the
transaction contemplated herein; (iii) no FBWP Entity has
repudiated or waived any material provision of any such Contract;
and (iv) no other party to any such Contract is, to the Knowledge
of FBWP, in Default in any respect or has repudiated or waived
any material provision thereunder. All of the indebtedness of
any FBWP Entity for money borrowed is prepayable at any time by
such FBWP Entity without penalty or premium. Except as disclosed
in Section 5.16 of the FBWP Disclosure Memorandum, none of FBWP
nor any of the FBWP Entities has any obligation or liability to
any wholesale mortgage business ("Wholesale Mortgage Business")
or to any Affiliate of such Persons to purchase, fund or extend
credit with respect to any loans, extensions of credit,
mortgages, or any participation or other interest therein
originated, brokered or referred by or through such Persons.
Except as described in Section 5.16 of the FBWP Disclosure
Memorandum, all Contracts to which FBWP and/or its Subsidiaries
are parties may be terminated by such FBWP Entity and its
successors and assigns without penalty, charge, liability or
further obligation.
ARTICLE 5.17 LEGAL PROCEEDINGS . There is no Litigation
instituted or pending, or, to the Knowledge of FBWP, 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 FBWP Entity or any employee
benefit plan of any FBWP Entity, or against any director or
employee of any FBWP Entity, in their capacity as such, or
against any Asset, interest, or right of any of them, nor are
there any Orders of any Regulatory Authorities, other
governmental authorities, or arbitrators outstanding against any
FBWP Entity. Section 5.17 of the FBWP Disclosure Memorandum
contains a summary of all Litigation as of the date of this
Agreement to which any FBWP Entity is a party and which names a
FBWP Entity as a defendant or cross-defendant or for which any
FBWP Entity has any potential Liability.
ARTICLE 5.18 REPORTS . Except as set forth in Section 5.18
of the FBWP Disclosure Memorandum, since January 1, 1997, or the
date of organization if later, each FBWP Entity has timely filed
all reports and statements, together with any amendments required
to be made with respect thereto, that it was required to file
with Regulatory Authorities (except, in the case of state
securities authorities, failures to file which are not reasonably
likely to have, individually or in the aggregate, a FBWP Material
Adverse Effect). As of their respective dates, each of such
reports and documents, including the financial statements,
exhibits, and schedules thereto, complied in all material
respects with all applicable Laws. As of its respective date,
each such report and document did not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they were
made, not misleading.
ARTICLE 5.19 STATEMENTS TRUE AND CORRECT . No statement,
certificate, instrument, or other writing furnished or to be
furnished by any FBWP Entity or any Affiliate thereof to CCBG
pursuant to this Agreement or any other document, agreement, or
instrument referred to herein contains or will contain any untrue
statement of material fact or will omit to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. None
of the information supplied or to be supplied by any FBWP Entity
or any Affiliate thereof for inclusion in the Registration
Statement to be filed by CCBG with the SEC will, when the
Registration Statement becomes effective, be false or misleading
with respect to any material fact, or omit to state any material
fact necessary to make the statements therein not misleading.
None of the information supplied or to be supplied by any FBWP
Entity or any Affiliate thereof for inclusion in the Proxy
Statement to be mailed to FBWP's shareholders in connection with
the Shareholders' Meeting, and any other documents to be filed by
a FBWP Entity or any Affiliate thereof with the SEC or any other
Regulatory Authority in connection with the transactions
contemplated hereby, will, at the respective time such documents
are filed, and with respect to the Proxy Statement, when first
mailed to the shareholders of FBWP, be false or misleading with
respect to any material fact, or omit to state any material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or, in
the case of the Proxy Statement or any amendment thereof or
supplement thereto, at the time of the Shareholders' Meeting, be
false or misleading with respect to any material fact, or omit to
state any material fact necessary to correct any statement in any
earlier communication with respect to the solicitation of any
proxy for the Shareholders' Meeting. All documents that any FBWP
Entity or any Affiliate thereof is responsible for filing with
any Regulatory Authority in connection with the transactions
contemplated hereby will comply as to form in all material
respects with the provisions of applicable Law.
ARTICLE 5.20 ACCOUNTING, TAX AND REGULATORY MATTERS . No FBWP
Entity or any Affiliate thereof has taken or agreed to take any
action or has any Knowledge of any fact or circumstance that is
reasonably likely to (i) prevent the Mergers from qualifying as a
reorganization within the meaning of Section 368(a) of the
Internal Revenue Code, or (ii) materially impede or delay receipt
of any Consents of Regulatory Authorities referred to in Section
9.1(b) or result in the imposition of a condition or restriction
of the type referred to in the last sentence of such Section.
ARTICLE 5.21 STATE TAKEOVER LAWS . Each FBWP Entity has taken
all necessary action to exempt the transactions contemplated by
this Agreement from, or if necessary to challenge the validity or
applicability of, any applicable "moratorium," "fair price,"
"business combination," "control share," or other anti-takeover
Laws (collectively, "Takeover Laws"), including Sections 14-2-1111
and 14-2-1131 of the GBCC.
ARTICLE 5.22 CHARTER PROVISIONS . Each FBWP Entity has taken
all action so that the entering into of this Agreement and the
consummation of the Mergers and the other transactions
contemplated by this Agreement do not and will not result in the
grant of any rights to any Person under the Articles of
Incorporation, Bylaws or other governing instruments of any FBWP
Entity or restrict or impair the ability of CCBG or any of its
Subsidiaries to vote, or otherwise to exercise the rights of a
shareholder with respect to, shares of any FBWP Entity that may
be directly or indirectly acquired or controlled by them. This
Agreement and the transactions contemplated herein will not
trigger any supermajority voting provisions under the Articles of
Incorporation, Bylaws, or other governing instruments of any FBWP
Entity.
ARTICLE 5.23 OPINION OF FINANCIAL ADVISOR . FBWP has received
the verbal opinion of ▇▇▇▇▇, ▇▇▇▇▇ Capital Partners, Inc., as of
the date of this Agreement, to the effect that the consideration
to be received in the Holding Company Merger by the holders of
FBWP Common Stock is fair, from a financial point of view, to
such holders.
ARTICLE 5.24 BOARD RECOMMENDATION . The Board of Directors of
FBWP, at a meeting duly called and held, has by unanimous vote of
the directors present (who constituted all of the directors then
in office) (i) determined that this Agreement and the
transactions contemplated hereby, including the Mergers, taken
together, are fair to and in the best interests of the
shareholders and (ii) resolved to recommend that the holders of
the shares of FBWP Common Stock approve this Agreement.
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF CCBG
CCBG hereby represents and warrants to FBWP as follows:
ARTICLE 6.1 ORGANIZATION, STANDING, AND POWER . CCBG is a
corporation duly organized, validly existing, and in good
standing under the Laws of the State of Florida, and has the
corporate power and authority to carry on its business as now
conducted and to own, lease and operate its material Assets.
CCBG is duly qualified or licensed to transact business as a
foreign corporation in good standing in the States of the United
States and foreign jurisdictions where the character of its
Assets or the nature or conduct of its business requires it to be
so qualified or licensed, except for such jurisdictions in which
the failure to be so qualified or licensed is not reasonably
likely to have, individually or in the aggregate, a CCBG Material
Adverse Effect.
ARTICLE 6.2 AUTHORITY OF CCBG; NO BREACH BY AGREEMENT .
(a) CCBG has the corporate power and authority
necessary to execute, deliver and perform its obligations under
this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated
herein, including the Mergers, have been duly and validly
authorized by all necessary corporate action in respect thereof
on the part of CCBG, subject to receipt of the requisite Consents
referred to in Section 9.1(b). This Agreement represents a
legal, valid, and binding obligation of CCBG, enforceable against
CCBG in accordance with its terms (except in all cases as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, receivership, conservatorship,
moratorium, or similar Laws affecting the enforcement of
creditors' rights generally and except that the availability of
the equitable remedy of specific performance or injunctive relief
is subject to the discretion of the court before which any
proceeding may be brought).
(b) Neither the execution and delivery of this
Agreement by CCBG, nor the consummation by CCBG of the
transactions contemplated hereby, nor compliance by CCBG with any
of the provisions hereof, will (i) conflict with or result in a
breach of any provision of CCBG's Articles of Incorporation or
Bylaws, or (ii) subject to receipt of the requisite Consents
referred to Section 9.1(b), constitute or result in a Default
under, or require any Consent pursuant to, or result in the
creation of any Lien on any Asset of any CCBG Entity under, any
Contract or Permit of any CCBG Entity, where such Default or
Lien, or any failure to obtain such Consent, is reasonably likely
to have, individually or in the aggregate, a CCBG Material
Adverse Effect, or, (iii) subject to receipt of the requisite
Consents referred to in Section 9.1(b), constitute or result in a
Default under, or require any Consent pursuant to, any Law or
Order applicable to any CCBG Entity or any of their respective
material Assets (including any CCBG Entity or any FBWP Entity
becoming subject to or liable for the payment of any Tax or any
of the Assets owned by any CCBG Entity or any FBWP Entity being
reassessed or revalued by any Taxing authority).
(c) Other than in connection or compliance with the
provisions of the Securities Laws, applicable state corporate and
securities Laws, and rules of the NASD, and other than Consents
required from Regulatory Authorities, and other than notices to
or filings with the Internal Revenue Service or the Pension
Benefit Guaranty Corporation with respect to any employee benefit
plans, or under the HSR Act, and other than Consents, filings, or
notifications which, if not obtained or made, are not reasonably
likely to have, individually or in the aggregate, a CCBG Material
Adverse Effect, no notice to, filing with, or Consent of, any
public body or authority is necessary for the consummation by
CCBG of the Mergers and the other transactions contemplated in
this Agreement.
ARTICLE 6.3 CAPITAL STOCK .
(a) The authorized capital stock of CCBG consists of
(i) 90,000,000 shares of CCBG Common Stock, of which 10,191,848
shares are issued and outstanding as of the date of this
Agreement, and (ii) 3,000,000 shares of CCBG Preferred Stock,
none of which are issued and outstanding. All of the issued and
outstanding shares of CCBG Capital Stock are, and all of the
shares of CCBG Common Stock to be issued in exchange for shares
of FBWP Common Stock upon consummation of the Mergers, when
issued in accordance with the terms of this Agreement, will be,
duly and validly issued and outstanding and fully paid and
nonassessable under the FBCA. None of the outstanding shares of
CCBG Capital Stock has been, and none of the shares of CCBG
Common Stock to be issued in exchange for shares of FBWP Common
Stock upon consummation of the Holding Company Merger will be,
issued in violation of any preemptive rights of the current or
past shareholders of CCBG.
(b) Except as set forth in Section 6.3(a), or as
provided pursuant to the CCBG Stock Plans, or as disclosed in
Section 6.3 of the CCBG Disclosure Memorandum, there are no
shares of capital stock or other equity securities outstanding
and no outstanding Equity Rights relating to the capital stock of
CCBG.
ARTICLE 6.4 CCBG SUBSIDIARIES . CCBG has disclosed in Section
6.4 of the CCBG Disclosure Memorandum all of its Significant
Subsidiaries as of the date of this Agreement that are
corporations and all of the CCBG Subsidiaries that are general or
limited partnerships or other non-corporate entities. Each CCBG
Subsidiary that is a depository institution is an "insured
institution" as defined in the Federal Deposit Insurance Act and
applicable regulations thereunder.
ARTICLE 6.5 SEC FILINGS; FINANCIAL STATEMENTS .
(a) CCBG has timely filed and made available to FBWP
all SEC Documents required to be filed by CCBG since December 31,
1997 (the "CCBG SEC Reports"). The CCBG SEC Reports (i) at the
time filed, complied in all material respects with the applicable
requirements of the Securities Laws and other applicable Laws and
(ii) did not, at the time they were filed (or, if amended or
superseded by a filing prior to the date of this Agreement, then
on the date of such filing) contain any untrue statement of a
material fact or omit to state a material fact required to be
stated in such CCBG SEC Reports or necessary in order to make the
statements in such CCBG SEC Reports, in light of the
circumstances under which they were made, not misleading.
(b) Each of the CCBG Financial Statements (including,
in each case, any related notes) contained in the CCBG SEC
Reports, including any CCBG SEC Reports filed after the date of
this Agreement until the Effective Time, complied as to form in
all material respects with the applicable published rules and
regulations of the SEC with respect thereto, was prepared in
accordance with GAAP applied on a consistent basis throughout the
periods involved (except as may be indicated in the notes to such
financial statements or, in the case of unaudited interim
statements, as permitted by Form 10-Q of the SEC), and fairly
presented in all material respects the consolidated financial
position of CCBG and its Subsidiaries as at the respective dates
and the consolidated results of operations and cash flows for the
periods indicated, except that the unaudited interim financial
statements were or are subject to normal and recurring year-end
adjustments which were not or are not expected to be material in
amount or effect.
ARTICLE 6.6 ABSENCE OF UNDISCLOSED LIABILITIES . Except as
disclosed in the CCBG Disclosure Memorandum, no CCBG Entity has
any Liabilities that are reasonably likely to have, individually
or in the aggregate, a CCBG Material Adverse Effect, except
Liabilities which are accrued or reserved against in the
consolidated balance sheets of CCBG as of December 31, 1999,
included in the CCBG Financial Statements delivered prior to the
date of this Agreement or reflected in the notes thereto. No
CCBG Entity has incurred or paid any Liability since December 31,
1999, except for such Liabilities incurred or paid (i) in the
ordinary course of business consistent with past business
practice and which are not reasonably likely to have,
individually or in the aggregate, a CCBG Material Adverse Effect
or (ii) in connection with the transactions contemplated by this
Agreement.
ARTICLE 6.7 ABSENCE OF CERTAIN CHANGES OR EVENTS . Since
December 31, 1999, except as disclosed in the CCBG Financial
Statements delivered prior to the date of this Agreement or as
disclosed in Section 6.7 of the CCBG Disclosure Memorandum, (i)
there have been no events, changes or occurrences which have had,
or are reasonably likely to have, individually or in the
aggregate, a CCBG Material Adverse Effect, and (ii) the CCBG
Entities have not taken any action, or failed to take any action,
prior to the date of this Agreement, which action or failure, if
taken after the date of this Agreement, would represent or result
in a material breach or violation of any of the covenants and
agreements of CCBG provided in Article 7.
ARTICLE 6.8 CERTAIN ENVIRONMENTAL AND EMPLOYEE BENEFIT MATTERS .
To the Knowledge of CCBG, each CCBG Entity, its Participation
Facilities and its Operating Properties are, and have been, in
compliance with all Environmental Laws, except for violations
which are not reasonably likely to have, individually or in the
aggregate, a CCBG Material Adverse Effect.
ARTICLE 6.9 ALLOWANCE FOR POSSIBLE LOAN LOSSES . In the opinion
of management of CCBG, the Allowance shown on the consolidated
balance sheets of CCBG included in the most recent CCBG Financial
Statements dated prior to the date of this Agreement was, and the
Allowance shown on the consolidated balance sheets of CCBG
included in the CCBG Financial Statements as of dates subsequent
to the execution of this Agreement will be, as of the dates
thereof, adequate (within the meaning of GAAP and applicable
regulatory requirements or guidelines) to provide for all known
or reasonably anticipated losses relating to or inherent in the
loan and lease portfolios (including accrued interest
receivables) of the CCBG Entities and other extensions of credit
(including letters of credit) by the CCBG Entities as of the
dates thereof.
ARTICLE 6.10 INTELLECTUAL PROPERTY . Each CCBG Entity owns or
has a license to use all of the Intellectual Property used by
such CCBG Entity in the course of its business. Each CCBG Entity
is the owner of or has a license to any Intellectual Property
sold or licensed to a third party by such CCBG Entity in
connection with such CCBG Entity's business operations, and such
CCBG Entity has the right to convey by sale or license any
Intellectual Property so conveyed. No CCBG Entity is in Default
under any of its Intellectual Property licenses. No proceedings
have been instituted, or are pending or to the Knowledge of CCBG
threatened, which challenge the rights of any CCBG Entity with
respect to Intellectual Property used, sold or licensed by such
CCBG Entity in the course of its business, nor has any person
claimed or alleged any rights to such Intellectual Property. The
conduct of the business of the CCBG Entities does not infringe
any Intellectual Property of any other person. Except as
disclosed in Section 6.10 of the CCBG Disclosure Memorandum, no
CCBG Entity is obligated to pay any recurring royalties to any
Person with respect to any such Intellectual Property. Except as
disclosed in Section 6.10 of the CCBG Disclosure Memorandum,
every officer, director, or employee of any CCBG Entity is a
party to a Contract which requires such officer, director or
employee to assign any interest in any Intellectual Property to a
CCBG Entity and to keep confidential any trade secrets,
proprietary data, customer information, or other business
information of a CCBG Entity, and, to the Knowledge of CCBG, no
such officer, director or employee is party to any Contract with
any Person other than a CCBG Entity which requires such officer,
director or employee to assign any interest in any Intellectual
Property to any Person other than a CCBG Entity or to keep
confidential any trade secrets, proprietary data, customer
information, or other business information of any Person other
than a CCBG Entity. Except as disclosed in Section 6.10 of the
CCBG Disclosure Memorandum, no officer, director or employee of
any CCBG Entity is party to any Contract which restricts or
prohibits such officer, director or employee from engaging in
activities competitive with any Person, including any CCBG
Entity.
ARTICLE 6.11 COMPLIANCE WITH LAWS . CCBG is duly registered as
a bank holding company under the BHC Act. Each CCBG Entity has
in effect all Permits necessary for it to own, lease or operate
its material Assets and to carry on its business as now
conducted, except for those Permits the absence of which are not
reasonably likely to have, individually or in the aggregate, a
CCBG Material Adverse Effect, and there has occurred no Default
under any such Permit, other than Defaults which are not
reasonably likely to have, individually or in the aggregate, a
CCBG Material Adverse Effect. Except as disclosed in Section
6.11 of the CCBG Disclosure Memorandum, none of the CCBG
Entities:
(a) is in Default under its Articles of Incorporation
or Bylaws (or other governing instruments); or
(b) is in Default under any Laws, Orders or Permits
applicable to its business or employees conducting its business,
except for Defaults which are not reasonably likely to have,
individually or in the aggregate, a CCBG Material Adverse Effect;
or
(c) since January 1, 1997, has received any
notification or communication from any agency or department of
federal, state, or local government or any Regulatory Authority
or the staff thereof (i) asserting that any CCBG Entity is not in
compliance with any of the Laws or Orders which such
governmental authority or Regulatory Authority enforces, where
such noncompliance is reasonably likely to have, individually or
in the aggregate, a CCBG Material Adverse Effect, (ii)
threatening to revoke any Permits, the revocation of which is
reasonably likely to have, individually or in the aggregate, a
CCBG Material Adverse Effect, or (iii) requiring any CCBG Entity
to enter into or consent to the issuance of a cease and desist
order, formal agreement, directive, commitment or memorandum of
understanding, or to adopt any Board resolution or similar
undertaking, which restricts materially the conduct of its
business, or in any manner relates to its capital adequacy, its
credit or reserve policies, its management, or the payment of
dividends.
ARTICLE 6.12 LEGAL PROCEEDINGS . Except as disclosed in Section
6.12 of the CCBG Disclosure Memorandum, there is no Litigation
instituted or pending, or, to the Knowledge of CCBG, 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 CCBG Entity or employee benefit
plan of any CCBG Entity, or against any director or employee of
any CCBG Entity, in their capacity as such, or against any Asset,
interest, or right of any of them, that is reasonably likely to
have, individually or in the aggregate, a CCBG Material Adverse
Effect, nor are there any Orders of any Regulatory Authorities,
other governmental authorities, or arbitrators outstanding
against any CCBG Entity, that are reasonably likely to have,
individually or in the aggregate, a CCBG Material Adverse Effect.
ARTICLE 6.13 REPORTS . Since January 1, 1997, or the date of
organization if later, each CCBG Entity has filed all reports and
statements, together with any amendments required to be made with
respect thereto, that it was required to file with Regulatory
Authorities (except, in the case of state securities authorities,
failures to file which are not reasonably likely to have,
individually or in the aggregate, a CCBG Material Adverse Effect).
As of their respective dates, each of such reports and
documents, including the financial statements, exhibits, and
schedules thereto, complied in all material respects with all
applicable Laws. As of its respective date, each such report and
document did not, in all material respects, contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they were
made, not misleading.
ARTICLE 6.14 STATEMENTS TRUE AND CORRECT . No statement,
certificate, instrument or other writing furnished or to be
furnished by any CCBG Entity or any Affiliate thereof to FBWP
pursuant to this Agreement or any other document, agreement or
instrument referred to herein contains or will contain any untrue
statement of material fact or will omit to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. None
of the information supplied or to be supplied by any CCBG Entity
or any Affiliate thereof for inclusion in the Registration
Statement to be filed by CCBG with the SEC, will, when the
Registration Statement becomes effective, be false or misleading
with respect to any material fact, or omit to state any material
fact necessary to make the statements therein not misleading.
None of the information supplied or to be supplied by any CCBG
Entity or any Affiliate thereof for inclusion in the Proxy
Statement to be mailed to FBWP's shareholders in connection with
the Shareholders' Meeting, and any other documents to be filed by
any CCBG Entity or any Affiliate thereof with the SEC or any
other Regulatory Authority in connection with the transactions
contemplated hereby, will, at the respective time such documents
are filed, and with respect to the Proxy Statement, when first
mailed to the shareholders of FBWP, be false or misleading with
respect to any material fact, or omit to state any material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or, in
the case of the Proxy Statement or any amendment thereof or
supplement thereto, at the time of the Shareholders' Meeting, be
false or misleading with respect to any material fact, or omit to
state any material fact necessary to correct any statement in any
earlier communication with respect to the solicitation of any
proxy for the Shareholders' Meeting. All documents that any CCBG
Entity or any Affiliate thereof is responsible for filing with
any Regulatory Authority in connection with the transactions
contemplated hereby will comply as to form in all material
respects with the provisions of applicable Law.
ARTICLE 6.15 ACCOUNTING, TAX AND REGULATORY MATTERS . No CCBG
Entity or any Affiliate thereof has taken or agreed to take any
action or has any Knowledge of any fact or circumstance that is
reasonably likely to (i) prevent the Mergers from qualifying as a
reorganization within the meaning of Section 368(a) of the
Internal Revenue Code, or (ii) materially impede or delay receipt
of any Consents of Regulatory Authorities referred to in Section
9.1(b) or result in the imposition of a condition or restriction
of the type referred to in the last sentence of such Section.
All Tax Returns required to be filed by or on behalf of any of
the CCBG Entities have been timely filed or requests for
extensions have been timely filed, granted and have not expired
for periods ended on or before December 31, 1998, and on or
before the day of the most recent fiscal year end immediately
preceding the Effective Time, except to the extent that all such
failures to file, taken together, are not reasonably likely to
have a CCBG Material Adverse Effect and all such Tax Returns
filed are complete and accurate in all material respects. All
Taxes shown on Tax Returns have been paid. As of the date of
this Agreement, there is no audit examination, deficiency, or
refund Litigation with respect to any Taxes, except as reserved
against any CCBG Financial Statements delivered prior to the date
of this Agreement or as disclosed in Section 6.15 of the CCBG
Disclosure Memorandum. The provision for Taxes due or to become
due for any of the CCBG Entities for the period or periods
through and including the day of the respective CCBG Financial
Statements has been made and is reflected on such CCBG Financial
Statements is, to the Knowledge of CCBG, sufficient to cover all
such Taxes.
ARTICLE 7 CONDUCT OF BUSINESS PENDING CONSUMMATION
ARTICLE 7.1 AFFIRMATIVE COVENANTS OF FBWP . From the date of
this Agreement until the earlier of the Effective Time or the
termination of this Agreement, unless the prior written consent
of CCBG shall have been obtained, and except as otherwise
expressly contemplated herein, FBWP shall and shall cause each of
its Subsidiaries to operate its business only in the usual,
regular, and ordinary course, and in a manner designed to
preserve intact its business organization and Assets and maintain
its rights and franchises, and shall take no action which would
(i) adversely affect the ability of any Party to obtain any
Consents required for the transactions contemplated hereby
without imposition of a condition or restriction of the type
referred to in the last sentences of Section 9.1(b) or 9.1(c), or
(ii) adversely affect the ability of any Party to perform its
covenants and agreements under this Agreement.
ARTICLE 7.2 NEGATIVE COVENANTS OF FBWP . From the date of this
Agreement until the earlier of the Effective Time or the
termination of this Agreement, unless the prior written consent
of CCBG shall have been obtained, and except as otherwise
expressly contemplated herein, FBWP covenants and agrees that it
will not do or agree or commit to do, or permit any of its
Subsidiaries to do or agree or commit to do, any of the
following:
(a) amend the Articles of Incorporation, Bylaws or
other governing instruments of any FBWP Entity; or
(b) incur any additional debt obligation or other
obligation for borrowed money (other than indebtedness of a FBWP
Entity to another FBWP Entity) in excess of an aggregate of
$50,000 (for the FBWP Entities on a consolidated basis) except in
the ordinary course of the business of FBWP Subsidiaries
consistent with past practices (which shall include, for FBWP
Subsidiaries that are depository institutions, creation of
deposit liabilities, purchases of federal funds, renewals of
advances from the Federal Home Loan Bank which advances are
outstanding on the date of this Agreement and entry into
repurchase agreements fully secured by U.S. government or agency
securities), or impose, or suffer the imposition, on any Asset of
any FBWP Entity of any Lien or permit any such Lien to exist
(other than in connection with deposits, repurchase agreements,
bankers acceptances, "treasury tax and loan" accounts established
in the ordinary course of business, the satisfaction of legal
requirements in the exercise of trust powers, and Liens in effect
as of the date hereof that are disclosed in the FBWP Disclosure
Memorandum); or
(c) repurchase, redeem, or otherwise acquire or
exchange (other than exchanges in the ordinary course under
employee benefit plans), directly or indirectly, any shares, or
any securities convertible into any shares, of the capital stock
of any FBWP Entity, or except as consistent with past practice,
declare or pay any dividend or make any other distribution in
respect of FBWP's capital stock, except that FBWP shall be
allowed to pay to its shareholders FBWP's regular dividend of
$1.85 per share of FBWP Common Stock for the second half of 2000;
provided, however, if the Holding Company Merger is consummated
prior to the record date for CCBG's fourth quarter 2000 dividend,
the FBWP dividend payable to each FBWP shareholder shall be
reduced by the CCBG fourth quarter 2000 dividend payable to each
FBWP shareholder; or
(d) except for this Agreement or as disclosed in
Section 7.2(d) of the FBWP Disclosure Memorandum, issue, sell,
pledge, encumber, authorize the issuance of, enter into any
Contract to issue, sell, pledge, encumber, or authorize the
issuance of, or otherwise permit to become outstanding, any
additional shares of FBWP Common Stock or any other capital stock
of any FBWP Entity, or any stock appreciation rights, or any
option, warrant, or other Equity Right; or
(e) adjust, split, combine or reclassify any capital
stock of any FBWP Entity or issue or authorize the issuance of
any other securities in respect of or in substitution for shares
of FBWP Common Stock, or sell, lease, mortgage or otherwise
dispose of or otherwise encumber (x) any shares of capital stock
of any FBWP Subsidiary (unless any such shares of stock are sold
or otherwise transferred to another FBWP Entity) or (y) any Asset
having a book value in excess of $50,000 other than in the
ordinary course of business for reasonable and adequate
consideration; or
(f) except for purchases of U.S. Treasury securities
or U.S. Government agency securities, which in either case have
maturities of one year or less, purchase any securities or make
any material investment, either by purchase of stock or
securities, contributions to capital, Asset transfers, or
purchase of any Assets, in any Person other than a wholly owned
FBWP Subsidiary, or otherwise acquire direct or indirect control
over any Person, other than in connection with (i) foreclosures
in the ordinary course of business, (ii) acquisitions of control
by a depository Subsidiary solely in its fiduciary capacity, or
(iii) the creation of new wholly owned Subsidiaries organized to
conduct or continue activities otherwise permitted by this
Agreement; or
(g) (1) make any new loans or extensions of credit or
renew, extend or renegotiate any existing loans or extensions of
credit (i) with respect to properties or businesses outside of
▇▇▇ and ▇▇▇▇▇▇▇▇ Counties, Alabama, and ▇▇▇▇▇ and ▇▇▇▇▇▇
Counties, Georgia, or to borrowers whose principal residence is
outside such counties unless such loans or extensions of credit
are to existing borrowers of First National that are borrowers on
the date of this Agreement, (ii) that are unsecured in excess of
$100,000, or (iii) that are secured in excess of $250,000; (2)
purchase or sell (except for sales of single family residential
first mortgage loans in the ordinary course of FBWP's business
for fair market value) any whole loans, leases, mortgages or any
loan participations or agented credits or other interest therein,
or (3) renew or renegotiate any loans or credits that are on any
watch list and/or are classified or special mentioned or take any
similar actions with respect to collateral held with respect to
debts previously contracted or other real estate owned, except
pursuant to safe and sound banking practices and with prior
disclosure to CCB; provided, however, that FBWP may, without the
prior notice to or written consent of CCB, renew or extend
existing credits on substantially similar terms and conditions as
present at the time such credit was made or last extended,
renewed or modified, for a period not to exceed one year and at
rates not less than market rates for comparable credits and
transactions and without any release of any collateral except as
any FBWP Entity is presently obligated under existing written
agreements kept as part of such FBWP Entity's official records.
If any FBWP Entity makes, extends, renews, renegotiates,
compromises or settles any loans or extensions of credit or
releases any collateral therefor that are subject to the prior
disclosure to CCB hereunder and CCB has objected thereto, the
Exchange Ratio shall be proportionally reduced by an amount equal
to all outstanding principal of, and all accrued but unpaid
interest and other charges on, such loan(s) as of the Effective
Time; or
(h) grant any increase in compensation or benefits to
the employees or officers of any FBWP Entity, except in
accordance with past practice as disclosed in Section 7.2(h) of
the FBWP Disclosure Memorandum or as required by Law; pay any
severance or termination pay or any bonus other than pursuant to
written policies or written Contracts in effect on the date of
this Agreement as disclosed in Section 7.2(h) of the FBWP
Disclosure Memorandum; enter into or amend any severance
agreements with officers of any FBWP Entity; grant any increase
in fees or other increases in compensation or other benefits to
directors of any FBWP Entity except in accordance with past
practice disclosed in Section 7.2(h) of the FBWP Disclosure
Memorandum; or voluntarily accelerate the vesting of any stock
options or other stock-based compensation or employee benefits or
other Equity Rights; or
(i) enter into or amend any employment Contract
between any FBWP Entity and any Person (unless such amendment is
required by Law) that the FBWP Entity does not have the
unconditional right to terminate without Liability (other than
Liability for services already rendered), at any time on or after
the Effective Time; or
(j) adopt any new employee benefit plan of any FBWP
Entity or terminate or withdraw from, or make any material change
in or to, any existing employee benefit plans of any FBWP Entity
other than any such change that is required by Law or that, in
the opinion of counsel, is necessary or advisable to maintain the
tax qualified status of any such plan, or make any distributions
from such employee benefit plans, except as required by Law, the
terms of such plans or consistent with past practice; or
(k) make any significant change in any Tax or
accounting methods or systems of internal accounting controls,
except as may be appropriate to conform to changes in Tax Laws or
regulatory accounting requirements or GAAP; or
(l) commence any Litigation other than in accordance
with past practice, settle any Litigation involving any Liability
of any FBWP Entity for material money damages or restrictions
upon the operations of any FBWP Entity; or
(m) except in the ordinary course of business and as
expressly permitted in Section 7.2(g), enter into, modify, amend
or terminate any material Contract calling for payments exceeding
$50,000 or waive, release, compromise or assign any material
rights or claims.
ARTICLE 7.3 COVENANTS OF CCBG . From the date of this Agreement
until the earlier of the Effective Time or the termination of
this Agreement, unless the prior written consent of FBWP shall
have been obtained, and except as otherwise expressly
contemplated herein, CCBG covenants and agrees that it shall (a)
continue to conduct its business and the business of its
Subsidiaries in a manner designed in its reasonable judgment, to
enhance the long-term value of the CCBG Capital Stock and the
business prospects of the CCBG Entities and to the extent
consistent therewith use all reasonable efforts to preserve
intact the CCBG Entities' core businesses and goodwill with their
respective employees and the communities they serve, and (b) take
no action which would (i) materially adversely affect the ability
of any Party to obtain any Consents required for the transactions
contemplated hereby without imposition of a condition or
restriction of the type referred to in the last sentences of
Section 9.1(b) or 9.1(c), or (ii) materially adversely affect the
ability of any Party to perform its covenants and agreements
under this Agreement; provided, that the foregoing shall not
prevent any CCBG Entity from acquiring any Assets or other
businesses or from discontinuing or disposing of any of its
Assets or business if such action is, in the judgment of CCBG,
desirable in the conduct of the business of CCBG and its
Subsidiaries. CCBG further covenants and agrees that it will not
amend or agree or commit to amend or permit any of its
Subsidiaries to amend or agree or commit to amend, without the
prior written consent of FBWP, which consent shall not be
unreasonably withheld, the Articles of Incorporation or Bylaws of
CCBG, in each case, in any manner adverse to the holders of FBWP
Common Stock as compared to the rights of holders of CCBG Common
Stock generally as of the date of this Agreement.
ARTICLE 7.4 ADVERSE CHANGES IN CONDITION . Each Party agrees to
give written notice promptly to the other Party upon becoming
aware of the occurrence or impending occurrence of any event or
circumstance relating to it or any of its Subsidiaries which (i)
is reasonably likely to have, individually or in the aggregate, a
FBWP Material Adverse Effect or a CCBG Material Adverse Effect,
as applicable, or (ii) would cause or constitute a breach of any
of its representations, warranties, or covenants contained
herein, and to use its reasonable efforts to prevent or promptly
to remedy the same.
ARTICLE 7.5 REPORTS . Each Party and its Subsidiaries shall
file all reports required to be filed by it with Regulatory
Authorities between the date of this Agreement and the Effective
Time and shall deliver to the other Party copies of all such
reports promptly after the same are filed. If financial
statements are contained in any such reports filed with the SEC,
such financial statements will fairly present in all material
respects the consolidated financial position of the entity filing
such statements as of the dates indicated and the consolidated
results of operations, changes in shareholders' equity, and cash
flows for the periods then ended in accordance with GAAP (subject
in the case of interim financial statements to normal recurring
year-end adjustments that are not material). As of their
respective dates, such reports filed with the SEC will comply in
all material respects with the Securities Laws and will not
contain any untrue statement of a 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 other reports to another
Regulatory Authority shall be prepared in accordance with Laws
applicable to such reports.
ARTICLE 8 ADDITIONAL AGREEMENTS
ARTICLE 8.1 REGISTRATION STATEMENT; PROXY STATEMENT;
SHAREHOLDER APPROVAL . As soon as reasonably practicable after
execution of this Agreement, at a date determined by CCBG in its
sole discretion, CCBG shall prepare and file the Registration
Statement with the SEC, and shall use its reasonable efforts to
cause the Registration Statement to become effective under the
1933 Act and take any action required to be taken under the
applicable state Blue Sky or securities Laws in connection with
the issuance of the shares of CCBG Common Stock upon consummation
of the Mergers. FBWP shall cooperate in the preparation and
filing of the Registration Statement and shall furnish all
information concerning it and the holders of its capital stock as
CCBG may reasonably request in connection with such action. FBWP
shall call a Shareholders' Meeting, to be held as soon as
reasonably practicable after the Registration Statement is
declared effective by the SEC, for the purpose of voting upon
approval of this Agreement and such other related matters as it
deems appropriate. In connection with the Shareholders' Meeting,
(i) CCBG shall prepare and file with the SEC the Registration
Statement which shall contain the Proxy Statement and FBWP shall
mail such Proxy Statement to the FBWP shareholders, (ii) FBWP
shall furnish to CCBG all information concerning FBWP that CCBG
may reasonably request in connection with such Proxy Statement,
(iii) the Board of Directors of FBWP shall recommend to FBWP's
shareholders the approval of the matters submitted for approval,
and (iv) the Board of Directors and officers of FBWP shall use
their reasonable efforts to obtain such shareholders' approval.
CCBG and FBWP shall make all necessary filings with respect to
the Mergers under the Securities Laws.
ARTICLE 8.2 NASDAQ LISTING . CCBG shall use its reasonable
efforts to list, prior to the Effective Time, on the Nasdaq
National Market the shares of CCBG Common Stock to be issued to
the holders of FBWP Common Stock pursuant to the Holding Company
Merger, and CCBG shall give all notices and make all filings with
the NASD required in connection with the transactions
contemplated herein.
ARTICLE 8.3 APPLICATIONS . CCBG shall promptly prepare and
file, and FBWP shall cooperate in the preparation and, where
appropriate, filing of, applications with all Regulatory
Authorities having jurisdiction over the transactions
contemplated by this Agreement seeking the requisite Consents
necessary to consummate the transactions contemplated by this
Agreement. The Parties shall deliver to each other copies of all
filings, correspondence and orders to and from all Regulatory
Authorities in connection with the transactions contemplated
hereby.
ARTICLE 8.4 FILINGS WITH STATE OFFICES . Upon the terms and
subject to the conditions of this Agreement, CCBG shall execute
and file the Articles of Merger with the Secretary of State of
the States of Florida and Georgia in connection with the Closing.
ARTICLE 8.5 AGREEMENT AS TO EFFORTS TO CONSUMMATE . Subject to
the terms and conditions of this Agreement, each Party agrees to
use, and to cause its Subsidiaries to use, its reasonable efforts
to take, or cause to be taken, all actions, and to do, or cause
to be done, all things necessary, proper, or advisable under
applicable Laws to consummate and make effective, as soon as
reasonably practicable after the date of this Agreement, the
transactions contemplated by this Agreement, including using its
reasonable efforts to lift or rescind any Order adversely
affecting its ability to consummate the transactions contemplated
herein and to cause to be satisfied the conditions referred to in
Article 9; provided, that nothing herein shall preclude either
Party from exercising its rights under this Agreement. Each
Party shall use, and shall cause each of its Subsidiaries to use,
its reasonable efforts to obtain all Consents necessary or
desirable for the consummation of the transactions contemplated
by this Agreement.
ARTICLE 8.6 INVESTIGATION AND CONFIDENTIALITY .
(a) Prior to the Effective Time, each Party shall keep
the other Party advised of all material developments relevant to
its business and to consummation of the Holding Company Merger
and shall permit the other Party to make or cause to be made such
investigation of the business and properties of it and its
Subsidiaries and of their respective financial and legal
conditions as the other Party reasonably requests, provided that
such investigation shall be reasonably related to the
transactions contemplated hereby and shall not interfere
unnecessarily with normal operations. No investigation by a
Party shall affect the representations and warranties of the
other Party.
(b) In addition to the Parties' respective obligations
under the Confidentiality Agreement, which are hereby reaffirmed
and adopted, and incorporated by reference herein each Party
shall, and shall cause its advisers and agents to, maintain the
confidentiality of all confidential information furnished to it
by the other Party concerning its and its Subsidiaries'
businesses, operations, and financial positions and shall not use
such information for any purpose except in furtherance of the
transactions contemplated by this Agreement. In the event that a
Party is required by applicable law or valid court process to
disclose any such confidential information, then such Party shall
provide the other Party with prompt written notice of any such
requirement so that the other Party may seek a protective order
or other appropriate remedy and/or waive compliance with this
Section 8.6. If in the absence of a protective order or other
remedy or the receipt of a waiver by the other Party, a Party is
nonetheless, in the written opinion of counsel, legally compelled
to disclose any such confidential information to any tribunal or
else stand liable for contempt or suffer other censure or
penalty, a Party may, without liability hereunder, disclose to
such tribunal only that portion of the confidential information
which such counsel advises such Party is legally required to be
disclosed, provided that such disclosing Party use its best
efforts to preserve the confidentiality of such confidential
information, including without limitation, by cooperating with
the other Party to obtain an appropriate protective order or
other reliable assurance that confidential treatment will be
accorded such confidential information by such tribunal. If this
Agreement is terminated prior to the Effective Time, upon written
request of the other Party, each Party shall promptly return or
certify the destruction of all documents and copies thereof, and
all work papers containing confidential information received from
the other Party.
(c) FBWP shall use its reasonable efforts to exercise
its rights under confidentiality agreements entered into with
Persons, if any, which were considering an Acquisition Proposal
with respect to FBWP to preserve the confidentiality of the
information relating to the FBWP Entities provided to such
Persons and their Affiliates and Representatives.
(d) Each Party agrees to give the other Party notice
as soon as practicable after any determination by it of any fact
or occurrence relating to the other Party which it has discovered
through the course of its investigation and which represents, or
is reasonably likely to represent, either a breach of any
representation, warranty, covenant or agreement of the other
Party or which has had or is reasonably likely to have a FBWP
Material Adverse Effect or a CCBG Material Adverse Effect, as
applicable.
(e) Upon request of CCBG, FBWP shall request within 10
days of the date thereof, that all third parties that received
confidential information regarding FBWP or any of its
Subsidiaries within the last 12 months in connection with a
possible sale or merger transaction involving FBWP or any of its
Subsidiaries promptly return such confidential information to
FBWP.
ARTICLE 8.7 PRESS RELEASES . Prior to the Effective Time, FBWP
and CCBG 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, that nothing in this Section 8.7
shall be deemed to prohibit any Party from making any disclosure
which its counsel deems necessary or advisable in order to
satisfy such Party's disclosure obligations imposed by Law.
ARTICLE 8.8 CERTAIN ACTIONS . Except with respect to this
Agreement and the transactions contemplated hereby, no FBWP
Entity nor any Affiliate thereof nor any Representatives thereof
retained by any FBWP Entity shall directly or indirectly solicit
any Acquisition Proposal by any Person. Except to the extent the
Board of Directors of FBWP reasonably determines in good faith,
based and relying upon a written opinion from its outside
counsel, that the failure to take such actions would constitute a
breach of fiduciary duties of the members of such Board of
Directors to FBWP's shareholder under applicable law, no FBWP
Entity or any Affiliate or Representative thereof shall furnish
any non-public information that it is not legally obligated to
furnish, negotiate with respect to, or enter into any discussions
or Contract with respect to, any Acquisition Proposal, but FBWP
may communicate information about such an Acquisition Proposal to
its shareholders if and to the extent that it is required to do
so in order to comply with its legal obligations. FBWP shall
promptly advise CCBG following the receipt of any Acquisition
Proposal and the details thereof, and advise CCBG of any
developments with respect to such Acquisition Proposal promptly
upon the occurrence thereof. FBWP shall (i) immediately cease
and cause to be terminated any existing activities, discussions
or negotiations with any Persons conducted heretofore with
respect to any of the foregoing, (ii) direct and use its
reasonable best efforts to cause all of its Affiliates and
Representatives not to engage in any of the foregoing, and (iii)
use its reasonable best efforts to enforce any confidentiality or
similar agreement relating to any such activities, discussions,
negotiations or Acquisition Proposal. FBWP will take all actions
necessary or advisable to inform the appropriate individuals or
entities referred to in the first sentence of this Section 8.8 of
the obligations undertaken in this Section 8.8.
ARTICLE 8.9 ACCOUNTING AND TAX TREATMENT . Each of the Parties
undertakes and agrees to use its reasonable efforts to cause the
Mergers, and to use its reasonable efforts to take no action
which would cause the Mergers not, to qualify as a
"reorganization" within the meaning of Section 368(a) of the
Internal Revenue Code for federal income tax purposes.
ARTICLE 8.10 STATE TAKEOVER LAWS . Each FBWP Entity and each
FBWP shareholder shall take the necessary steps to exempt the
transactions contemplated by this Agreement from, or if necessary
to challenge the validity or applicability of, any applicable
Takeover Law, including Sections 14-2-1111 and 14-2-1132 of the
GBCC.
ARTICLE 8.11 CHARTER PROVISIONS . Each FBWP Entity shall take
all necessary action to ensure that the entering into of this
Agreement and the consummation of the Mergers and the other
transactions contemplated hereby do not and will not result in
the grant of any rights to any Person under the Articles of
Incorporation, Bylaws or other governing instruments of any FBWP
Entity or restrict or impair the ability of CCBG or any of its
Subsidiaries to vote, or otherwise to exercise the rights of a
shareholder with respect to, shares of any FBWP Entity that may
be directly or indirectly acquired or controlled by them.
ARTICLE 8.12 FBWP MEETINGS . Each FBWP Entity shall give prior
notice of each meeting or proposed action by any of their
respective Boards of Directors and/or committees, including a
description of any matters to be discussed and/or acted upon, and
shall permit a representative of CCBG to attend each such
meeting, except during discussions relating to the transactions
contemplated herein that present conflict of interest and/or
confidentiality issues.
ARTICLE 8.13 AGREEMENT OF AFFILIATES . FBWP has disclosed in
Section 8.13 of the FBWP Disclosure Memorandum all Persons whom
it reasonably believes is an "affiliate" of FBWP for purposes of
Rule 145 under the 1933 Act. FBWP shall cause each such Person
to deliver to CCBG upon the execution 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 FBWP Common Stock held by such Person except as
contemplated by such agreement or by this Agreement and will not
sell, pledge, transfer, or otherwise dispose of the shares of
CCBG Common Stock to be received by such Person upon consummation
of the Mergers except in compliance with applicable provisions of
the 1933 Act and the rules and regulations thereunder. CCBG shall
be entitled to place restrictive legends upon certificates for
shares of CCBG Common Stock issued to affiliates of FBWP pursuant
to this Agreement to enforce the provisions of this Section 8.13;
provided that CCBG removes such legends at the appropriate time.
CCBG shall not be required to maintain the effectiveness of the
Registration Statement under the 1933 Act for the purposes of
resale of CCBG Common Stock by such affiliates.
ARTICLE 8.14 EMPLOYEE BENEFITS AND CONTRACTS .
(a) Following the Effective Time, CCBG shall provide
generally to officers and employees of the FBWP Entities employee
benefits under employee benefit and welfare plans (other than
stock option or other plans involving the potential issuance of
CCBG Common Stock), on terms and conditions which when taken as a
whole are substantially similar to those currently provided by
the CCBG Entities to their similarly situated officers and
employees; provided, that CCBG shall provide generally to
officers and employees of FBWP Entities benefits in accordance
with the policies of CCBG. CCBG shall waive any pre-existing
condition exclusion under any employee health plan for which any
employees and/or officers and dependents covered by FBWP plans as
of Closing of the FBWP Entities shall become eligible by virtue
of the preceding sentence, to the extent (i) such pre-existing
condition was covered under the corresponding plan maintained by
the FBWP Entity and (ii) the individual affected by the pre-
existing condition was covered by the FBWP Entity's corresponding
plan on the date which immediately precedes the Effective Time.
For purposes of participation, vesting and (except in the case of
CCBG retirement plans) benefit accrual under CCBG's employee
benefit plans, the service of the employees of the FBWP Entities
prior to the Effective Time shall be treated as service with a
CCBG Entity participating in such employee benefit plans. CCBG
also shall cause the Surviving Corporation and its Subsidiaries
to honor in accordance with their terms all employment,
consulting and other compensation Contracts disclosed in Section
8.14 of the FBWP Disclosure Memorandum to CCBG between any FBWP
Entity and any current or former director, officer, or employee
thereof, and all provisions for vested benefits or other vested
amounts earned or accrued through the Effective Time under the
FBWP Benefit Plans.
(b) A. ▇▇▇▇ ▇▇▇▇▇▇▇▇, III, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇., and ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall each enter into an
employment agreement with CCBG or CCB that is satisfactory to
CCBG which shall be effective as of the Effective Time (the
"Employment Agreements"). The Employment Agreements shall
contain standard provisions for terminating any existing
employment arrangements between these individuals and any of the
FBWP Entities.
(c) Subject to compliance with applicable Laws and the
absence of any Material Adverse Effects upon CCBG or any FBWP
Benefit Plans and/or CCBG Benefit Plans, CCBG intends to merge
the FBWP 401(k) Plan with the CCBG 401(k) Plan.
ARTICLE 8.15 INDEMNIFICATION .
(a) With respect to all claims brought during the
period of four (4) years after the Effective Time, CCBG shall
indemnify, defend and hold harmless the present and former
directors, officers and employees of the FBWP Entities (each, an
"Indemnified Party") against all Liabilities arising out of
actions or omissions arising out of the Indemnified Party's
service or services as directors, officers or employees of FBWP
or, at FBWP's request, of another corporation, partnership, joint
venture, trust or other enterprise occurring at or prior to the
Effective Time (including the transactions contemplated by this
Agreement) to the fullest extent permitted under Florida Law.
Without limiting the foregoing, in any case in which approval by
the Surviving Corporation is required to effectuate any
indemnification, the Surviving Corporation shall direct, at the
election of the Indemnified Party, that the determination of any
such approval shall be made by independent counsel mutually
agreed upon between CCBG and the Indemnified Party
(b) CCBG shall, to the extent available, (and FBWP
shall cooperate prior to the Effective Time in these efforts)
maintain in effect for a period of two years after the Effective
Time FBWP's existing directors' and officers' liability insurance
policy (provided that CCBG may substitute therefor (i) policies
of at least the same coverage and amounts containing terms and
conditions which are substantially no less advantageous or (ii)
with the consent of FBWP given prior to the Effective Time, any
other policy) with respect to claims arising from facts or events
which occurred prior to the Effective Time and covering persons
who are currently covered by such insurance; provided, that CCBG
shall not be obligated to make aggregate premium payments for
such two-year period in respect of such policy (or coverage
replacing such policy) which exceed, for the portion related to
FBWP's directors and officers, 150% of the annual premium
payments on FBWP's current policy in effect as of the date of
this Agreement (the "Maximum Amount").
(c) Any Indemnified Party wishing to claim
indemnification under paragraph (a) of this Section 8.15, upon
learning of any such Liability or Litigation, shall promptly
notify CCBG thereof. In the event of any such Litigation
(whether arising before or after the Effective Time), (i) the
Surviving Corporation shall have the right to assume the defense
thereof and the Surviving Corporation shall not be liable to such
Indemnified Parties for any legal expenses of other counsel or
any other expenses subsequently incurred by such Indemnified
Parties in connection with the defense thereof, except that if
the Surviving Corporation elects not to assume such defense or
counsel for the Indemnified Parties advises that there are
substantive issues which raise conflicts of interest between the
Surviving Corporation and the Indemnified Parties, the
Indemnified Parties may retain counsel satisfactory to them, and
the Surviving Corporation shall pay all reasonable fees and
expenses of such counsel for the Indemnified Parties promptly as
statements therefor are received; provided, that (i) the
Surviving Corporation shall be obligated pursuant to this
paragraph (c) to pay for only one firm of counsel for all
Indemnified Parties in any jurisdiction, (ii) the Indemnified
Parties will cooperate in the defense of any such Litigation, and
(iii) the Surviving Corporation shall not be liable for any
settlement effected without its prior written consent; and
provided further that the Surviving Corporation shall not have
any obligation hereunder to any Indemnified Party when and if a
court of competent jurisdiction shall determine, and such
determination shall have become final, that the indemnification
of such Indemnified Party in the manner contemplated hereby is
prohibited by applicable Law.
ARTICLE 8.16 CERTAIN POLICIES OF FBWP . CCBG and FBWP shall
consult with respect to their respective major policies and
practices and FBWP shall make such modification or changes to its
policies and practices, if any, prior to the Effective Time as
may be mutually agreed upon. CCBG and FBWP also shall consult
with respect to the character, amount and timing of restructuring
and Merger-related expense charges to be taken by each of the
Parties in connection with the transactions contemplated by this
Agreement and shall take such charges in accordance with GAAP,
prior to the Effective Time, as may be mutually agreed upon by
the Parties. Neither Party's representations, warranties,
covenants or agreements contained in this Agreement shall be
deemed to be inaccurate or breached in any respect as a
consequence of any modifications or charges undertaken solely on
account of this Section 8.16.
ARTICLE 8.17 STOCK OPTION AGREEMENT . Concurrently with the
execution and delivery of this Agreement, CCBG and FBWP agree to
execute and deliver the Stock Option Agreement in the form
attached hereto as Exhibit 3.
ARTICLE 8.18 DIRECTOR'S AGREEMENTS . Concurrently with the
execution and delivery of this Agreement, FBWP agrees to cause
each of its directors to execute and deliver a Director's
Agreement in the form attached hereto as Exhibit 5.
ARTICLE 8.19 TAXES.
(a) PRE-CLOSING PREPARATION AND FILING OF TAX RETURNS;
PAYMENT OF TAXES. Between the date hereof and the Effective
Time, FBWP shall cause FBWP to prepare and file on or before the
due date therefor all Tax Returns required to be filed by FBWP
(except for any Tax Return for which an extension has been
granted as permitted hereunder) on or before the Effective Time,
and shall pay, or cause FBWP to pay, all Taxes (including
estimated Taxes) due on such Tax Return (or due with respect to
Tax Returns for which an extension has been granted as permitted
hereunder) or which are otherwise required to be paid at any time
prior to or during such period. Such Tax Returns shall be
prepared in accordance with the most recent Tax practices as to
elections and accounting methods except for new elections that
may be made therein that were not previously available, subject
to CCBG's consent (not to be unreasonably withheld or delayed).
(b) NOTIFICATION OF TAX PROCEEDINGS. Between the date
hereof and the Effective Time, to the extent FBWP has knowledge
of the commencement or scheduling of any Tax audit, the
assessment of any Tax, the issuance of any notice of Tax due or
any ▇▇▇▇ for collection of any Tax due for Taxes, or the
commencement or scheduling of any other administrative or
judicial proceeding with respect to the determination, assessment
or collection of any Tax of FBWP, FBWP shall provide prompt
notice to CCBG of such matter, setting forth information (to the
extent known) describing any asserted Tax liability in reasonable
detail and including copies of any notice or other documentation
received from the applicable Tax authority with respect to such
matter.
(c) TAX ELECTIONS, WAIVERS AND SETTLEMENTS. FBWP shall not
take any of the following actions:
(i) make, revoke or amend any Tax election;
(ii) execute any waiver of restrictions on assessment or
collection of any Tax; or
(iii) enter into or amend any agreement or settlement with
any Tax authority.
(d) TERMINATION OF EXISTING TAX-SHARING AGREEMENTS.
All tax-sharing agreements or similar arrangements with respect
to or involving FBWP shall be terminated with respect to FBWP
prior to the Effective Time, and, after the Effective Time,
neither the FBWP and its affiliates, on the one hand, or FBWP, on
the other, shall be bound thereby or have any liability
thereunder to the other party for amounts due in respect of
periods prior to the Effective Time.
ARTICLE 8.20 FAIRNESS OPINION . FBWP shall obtain from ▇▇▇▇▇,
▇▇▇▇▇ Capital Partners, Inc., a letter, dated not more than five
business days prior to the date of the Proxy Statement, to the
effect that, in the opinion of such firm, the consideration to be
received by FBWP shareholders in connection with the Holding
Company Merger is fair, from a financial point of view, to such
shareholders, a signed copy of which shall be immediately
delivered to CCBG.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
ARTICLE 9.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY . The
respective obligations of each Party to perform this Agreement
and consummate the Mergers and the other transactions
contemplated hereby are subject to the satisfaction of the
following conditions, unless waived by both Parties pursuant to
Section 11.6:
(a) SHAREHOLDER APPROVAL. The shareholders of FBWP
shall have approved this Agreement, and the consummation of the
transactions contemplated hereby, including the Mergers, as and
to the extent required by Law, by the provisions of any governing
instruments, or by the rules of the NASD. The shareholders of
CCBG shall have approved the issuance of shares of CCBG Common
Stock pursuant to the Holding Company Merger, as and to the
extent required by Law, by the provisions of any governing
instruments, or by the rules of the NASD.
(b) REGULATORY APPROVALS. All Consents of, filings
and registrations with, and notifications to, all Regulatory
Authorities required for consummation of the Holding Company
Merger shall have been obtained or made and shall be in full
force and effect and all waiting periods required by Law shall
have expired. No Consent obtained from any Regulatory Authority
which is necessary to consummate the transactions contemplated
hereby shall be conditioned or restricted in a manner (including
requirements relating to the raising of additional capital or the
disposition of Assets) which in the reasonable judgment of the
Board of Directors of CCBG would so materially adversely affect
the economic or business benefits of the transactions
contemplated by this Agreement that, had such condition or
requirement been known, such Party would not, in its reasonable
judgment, have entered into this Agreement.
(c) CONSENTS AND APPROVALS. Each Party shall have
obtained any and all Consents required for consummation of the
Mergers (other than those referred to in Section 9.1(b)) or for
the preventing of any Default under any Contract or Permit of
such Party which, if not obtained or made, is reasonably likely
to have, individually or in the aggregate, a FBWP Material
Adverse Effect or a CCBG Material Adverse Effect, as applicable.
No Consent so obtained which is necessary to consummate the
transactions contemplated hereby shall be conditioned or
restricted in a manner which in the reasonable judgment of the
Board of Directors of CCBG would so materially adversely affect
the economic or business benefits of the transactions
contemplated by this Agreement that, had such condition or
requirement been known, such Party would not, in its reasonable
judgment, have entered into this Agreement.
(d) LEGAL PROCEEDINGS. No court or governmental or
regulatory authority of competent jurisdiction shall have
enacted, issued, promulgated, enforced or entered any Law or
Order (whether temporary, preliminary or permanent) or taken any
other action which prohibits, restricts or makes illegal
consummation of the transactions contemplated by this Agreement.
(e) REGISTRATION STATEMENT. The Registration
Statement shall be effective under the 1933 Act, no stop orders
suspending the effectiveness of the Registration Statement shall
have been issued, no action, suit, proceeding or investigation by
the SEC to suspend the effectiveness thereof shall have been
initiated and be continuing, and all necessary approvals under
state securities Laws or the 1933 Act or 1934 Act relating to the
issuance or trading of the shares of CCBG Common Stock issuable
pursuant to the Holding Company Merger shall have been received.
(f) SHARE LISTING. The shares of CCBG Common Stock
issuable pursuant to the Holding Company Merger shall have been
approved for listing on the Nasdaq National Market.
(g) TAX MATTERS. Each Party shall have received a
written opinion of counsel from Gunster, Yoakley & ▇▇▇▇▇▇▇, P.A.,
in form reasonably satisfactory to such Parties (the "Tax
Opinion"), to the effect that (i) the Holding Company Merger will
constitute a reorganization within the meaning of Section 368(a)
of the Internal Revenue Code, (ii) the exchange in the Holding
Company Merger of FBWP Common Stock for CCBG Common Stock will
not give rise to gain or loss to the shareholders of FBWP with
respect to such exchange (except to the extent of any cash
received), and (iii) none of FBWP or CCBG will recognize gain or
loss as a consequence of the Holding Company Merger (except for
amounts resulting from any required change in accounting methods
and any income and deferred gain recognized pursuant to Treasury
regulations issued under Section 1502 of the Internal Revenue
Code). In rendering such Tax Opinion, such counsel shall be
entitled to rely upon representations of officers of FBWP and
CCBG reasonably satisfactory in form and substance to such
counsel.
ARTICLE 9.2 CONDITIONS TO OBLIGATIONS OF CCBG . The obligations
of CCBG to perform this Agreement and consummate the Mergers and
the other transactions contemplated hereby are subject to the
satisfaction of the following conditions, unless waived by CCBG
pursuant to Section 11.6(a):
(a) REPRESENTATIONS AND WARRANTIES. For purposes of
this Section 9.2(a), the accuracy of the representations and
warranties of FBWP set forth in this Agreement shall be assessed
as of the date of this Agreement and as of the Effective Time
with the same effect as though all such representations and
warranties had been made on and as of the Effective Time
(provided that representations and warranties which are confined
to a specified date shall speak only as of such date). There
shall not exist inaccuracies in the representations and
warranties of FBWP set forth in this Agreement (including,
without limitation, the representations and warranties set forth
in Sections 5.3, 5.20, 5.21, and 5.22) such that the aggregate
effect of such inaccuracies has, or is reasonably likely to have,
a FBWP Material Adverse Effect; provided that, for purposes of
this sentence only, those representations and warranties which
are qualified by references to "material" or "Material Adverse
Effect" or to the "Knowledge" of any Person shall be deemed not
to include such qualifications.
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and
all of the agreements and covenants of FBWP to be performed and
complied with pursuant to this Agreement and the other agreements
contemplated hereby prior to the Effective Time shall have been
duly performed and complied with.
(c) CERTIFICATES. FBWP shall have delivered to CCBG
(i) a certificate, dated as of the Effective Time and signed on
its behalf by its chief executive officer and its chief financial
officer, to the effect that the conditions set forth in Section
9.1 as relates to FBWP and in Section 9.2(a) and 9.2(b) have been
satisfied, and (ii) certified copies of resolutions duly adopted
by FBWP's Board of Directors and shareholders evidencing the
taking of all corporate action necessary to authorize the
execution, delivery and performance of this Agreement, and the
consummation of the transactions contemplated hereby, all in such
reasonable detail as CCBG and its counsel shall request.
(d) OPINION OF COUNSEL. CCBG shall have received an
opinion of Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to
FBWP, dated as of the Closing, in form reasonably satisfactory to
CCBG, as to the matters set forth in Exhibit 4.
(e) AFFILIATES' AGREEMENTS. CCBG shall have received
from each affiliate of FBWP the affiliates letter referred to in
Section 8.13.
(f) NET WORTH AND CAPITAL REQUIREMENTS. Immediately
prior to the Effective Time, FBWP shall have a consolidated
minimum net worth of at least $15,500,000; provided that, "net
worth" shall be deemed to not be reduced by fees, costs and
expenses (i) incurred or paid at the request of CCBG, except for
adjustments requested by CCBG for purposes of complying with
GAAP, or (ii) incurred and paid by FBWP in connection with the
execution and performance of this Agreement which amounts shall
not exceed $400,000. For purposes of this Section 9.2(g), "net
worth" shall mean the sum of the amounts set forth on the balance
sheet as stockholders' equity (including the par or stated value
of all outstanding capital stock, additional paid-in surplus,
retained earnings, treasury stock and unrealized gain or loss on
securities available for sale) determined in accordance with GAAP.
(g) DIRECTOR'S AGREEMENTS. CCBG shall have received
from each director of FBWP the Director's Agreement set forth
hereto at Exhibit 5.
(h) CLAIMS LETTER. CCBG shall have received from each
director and officer of FBWP the Claims Letter set forth hereto
at Exhibit 6.
(i) CLEARANCE CERTIFICATE. FBWP shall provide CCBG
with a clearance certificate or similar document(s) which may be
required by any state taxing authority in order to relieve CCBG
of any obligation to withhold any portion of the consideration
under this Agreement.
(j) EMPLOYMENT AGREEMENTS. CCBG shall have received
from each of the individuals listed in Section 8.14(b) an
executed Employment Agreement.
ARTICLE 9.3 CONDITIONS TO OBLIGATIONS OF FBWP . The obligations
of FBWP to perform this Agreement and consummate the Mergers and
the other transactions contemplated hereby are subject to the
satisfaction of the following conditions, unless waived by FBWP
pursuant to Section 11.6(b):
(a) REPRESENTATIONS AND WARRANTIES. For purposes of
this Section 9.3(a), the accuracy of the representations and
warranties of CCBG set forth in this Agreement shall be assessed
as of the date of this Agreement and as of the Effective Time
with the same effect as though all such representations and
warranties had been made on and as of the Effective Time
(provided that representations and warranties which are confined
to a specified date shall speak only as of such date). There
shall not exist inaccuracies in the representations and
warranties of CCBG set forth in this Agreement such that the
aggregate effect of such inaccuracies has, or is reasonably
likely to have, a CCBG Material Adverse Effect; provided that,
for purposes of this sentence only, those representations and
warranties which are qualified by references to "material" or
"Material Adverse Effect" or to the "Knowledge" of any Person
shall be deemed not to include such qualifications.
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and
all of the agreements and covenants of CCBG to be performed and
complied with pursuant to this Agreement and the other agreements
contemplated hereby prior to the Effective Time shall have been
duly performed and complied with in all material respects.
(c) CERTIFICATES. CCBG shall have delivered to FBWP
(i) a certificate, dated as of the Effective Time and signed on
its behalf by its chief executive officer and its chief financial
officer, to the effect that the conditions set forth in Section
9.1 as relates to CCBG and in Section 9.3(a) and 9.3(b) have been
satisfied, and (ii) certified copies of resolutions duly adopted
by CCBG's Board of Directors and shareholders evidencing the
taking of all corporate action necessary to authorize the
execution, delivery and performance of this Agreement, and the
consummation of the transactions contemplated hereby, all in such
reasonable detail as FBWP and its counsel shall request.
(d) OPINION OF COUNSEL. FBWP shall have received an
opinion of Gunster, Yoakley & ▇▇▇▇▇▇▇, P.A., counsel to CCBG,
dated as of the Effective Time, in form reasonably acceptable to
FBWP, as to the matters set forth in Exhibit 7.
ARTICLE 10
TERMINATION
ARTICLE 10.1 TERMINATION . Notwithstanding any other provision
of this Agreement, and notwithstanding the approval of this
Agreement by the shareholders of FBWP, this Agreement may be
terminated and the Mergers abandoned at any time prior to the
Effective Time:
(a) By mutual consent of CCBG and FBWP; or
(b) By either Party (provided that the terminating
Party is not then in material breach of any representation,
warranty, covenant, or other agreement contained in this
Agreement) in the event of a breach by the other Party of any
representation or warranty contained in this Agreement which
cannot be or has not been cured within 30 days after the giving
of written notice to the breaching Party of such breach and which
breach is reasonably likely, in the opinion of the non-breaching
Party, to have, individually or in the aggregate, a FBWP Material
Adverse Effect or a CCBG Material Adverse Effect, as applicable,
on the breaching Party; or
(c) By either Party (provided that the terminating
Party is not then in material breach of any representation,
warranty, covenant, or other agreement contained in this
Agreement) in the event of a material breach by the other Party
of any covenant or agreement contained in this Agreement which
cannot be or has not been cured within 30 days after the giving
of written notice to the breaching Party of such breach; or
(d) By either Party (provided that the terminating
Party is not then in material breach of any representation,
warranty, covenant, or other agreement contained in this
Agreement) in the event (i) any Consent of any Regulatory
Authority required for consummation of the Mergers and the other
transactions contemplated hereby shall have been denied by final
nonappealable action of such authority or if any action taken by
such authority is not appealed within the time limit for appeal,
or (ii) the shareholders of FBWP fail to vote their approval of
the matters relating to this Agreement and the transactions
contemplated hereby at the Shareholders' Meetings where such
matters were presented to such shareholders for approval and
voted upon; or
(e) By either Party in the event that the Holding
Company Merger shall not have been consummated by March 31, 2001,
which date may be extended by the mutual consent of the Parties,
if the failure to consummate the transactions contemplated hereby
on or before such date is not caused by any breach of this
Agreement by the Party electing to terminate pursuant to this
Section 10.1(e); or
(f) By either Party (provided that the terminating
Party is not then in material breach of any representation,
warranty, covenant, or other agreement contained in this
Agreement) in the event that any of the conditions precedent to
the obligations of such Party to consummate the Holding Company
Merger cannot be satisfied or fulfilled by the date specified in
Section 10.1(e); or
(g) By CCBG, in the event that the Board of Directors
of FBWP shall have failed to reaffirm its approval of the Mergers
and the transactions contemplated by this Agreement (to the
exclusion of any other Acquisition Proposal), or shall have
resolved not to reaffirm the Mergers, or shall have affirmed,
recommended or authorized entering into any other Acquisition
Proposal or other transaction involving a merger, share exchange,
consolidation or transfer of substantially all of the Assets of
FBWP.
ARTICLE 10.2 EFFECT OF TERMINATION . In the event of the
termination and abandonment of this Agreement pursuant to Section
10.1, this Agreement shall become void and have no effect, except
that (i) the provisions of this Section 10.2 and Article 11 and
Sections 8.6(b) and 8.7 shall survive any such termination and
abandonment, and (ii) a termination pursuant to Sections 10.1(b),
10.1(c) or 10.1(f) shall not relieve the breaching Party from
Liability for an uncured willful breach of a representation,
warranty, covenant, or agreement giving rise to such termination.
ARTICLE 10.3 ALTERNATE TRANSACTION . Nothing contained in this
Agreement shall be deemed to prohibit any director or officer of
FBWP from fulfilling his or her fiduciary duties to FBWP
shareholders or from taking any action required by law. However,
in addition to any other payments required by this Agreement, in
the event that this Agreement is terminated as a result of FBWP
or the holders of at least a majority of the shares of FBWP
Common Stock entering into an agreement with respect to the
merger of FBWP with a party other than CCBG or the acquisition
of a majority of the outstanding shares of FBWP Common Stock by
any party other than CCBG, or is terminated in anticipation of
any such agreement or acquisition, then, in either event, FBWP
shall immediately pay CCBG, by wire transfer, $350,000 in full
satisfaction of CCBG's losses and damages resulting from such
termination. FBWP agrees that $350,000 is reasonable under the
circumstances, that it would be impossible to exactly determine
CCBG's actual damages as a result of such a termination and that
CCBG's actual damages resulting from the loss of the transaction
are in excess of $350,000.
ARTICLE 10.4 NON-SURVIVAL OF REPRESENTATIONS AND COVENANTS .
The respective representations, warranties, obligations,
covenants, and agreements of the Parties shall not survive the
Effective Time except this Section 10.4 and Articles 1, 2, 3, 4
and 11 and Sections 8.7, 8.13, 8.14, 8.15 and 10.3.
ARTICLE 11 MISCELLANEOUS
ARTICLE 11.1 DEFINITIONS .
(a) Except as otherwise provided herein, the
capitalized terms set forth below shall have the following
meanings:
"1933 ACT" shall mean the Securities Act of 1933, as
amended.
"1934 ACT" shall mean the Securities Exchange Act of 1934,
as amended.
"ACQUISITION PROPOSAL" with respect to a Party shall mean
any tender offer or exchange offer or any proposal for a merger,
acquisition of all of the stock or assets of, or other business
combination involving the acquisition of such Party or any of its
Subsidiaries or the acquisition of a substantial equity interest
in, or a substantial portion of the assets of, such Party or any
of its Subsidiaries.
"AFFILIATE" of a Person shall mean: (i) any other Person
directly, or indirectly through one or more intermediaries,
controlling, controlled by or under common control with such
Person; (ii) any executive officer, director, partner, employer,
or direct or indirect beneficial owner of any 10% or greater
equity or voting interest of such Person; or (iii) any other
Person for which a Person described in clause (ii) acts in any
such capacity.
"AGREEMENT" shall mean this Agreement and Plan of Merger,
including the Exhibits delivered pursuant hereto and incorporated
herein by reference.
"ARTICLES OF MERGER" shall mean the Articles of Merger to be
executed by CCBG and filed with the Secretary of State of the
States of Florida and Georgia relating to the Holding Company
Merger as contemplated by Section 1.1.
"ASSETS" of a Person shall mean all of the assets,
properties, businesses and rights of such Person of every kind,
nature, character and description, whether real, personal or
mixed, tangible or intangible, accrued or contingent, or
otherwise relating to or utilized in such Person's business,
directly or indirectly, in whole or in part, whether or not
carried on the books and records of such Person, and whether or
not owned in the name of such Person or any Affiliate of such
Person and wherever located.
"BHC ACT" shall mean the federal Bank Holding Company Act of
1956, as amended.
"CCB" shall mean Capital City Bank, a Florida chartered
commercial bank and a CCBG Subsidiary.
"CCBG CAPITAL STOCK" shall mean, collectively, the CCBG
Common Stock, the CCBG Preferred Stock and any other class or
series of capital stock of CCBG.
"CCBG COMMON STOCK" shall mean the common stock of CCBG,
$0.01 par value per share.
"CCBG DISCLOSURE MEMORANDUM" shall mean the written
information entitled "Capital City Bank Group, Inc. Disclosure
Memorandum" delivered prior to the date of this Agreement to FBWP
describing in reasonable detail the matters contained therein
and, with respect to each disclosure made therein, specifically
referencing each Section of this Agreement under which such
disclosure is being made. Information disclosed with respect to
one Section shall not be deemed to be disclosed for purposes of
any other Section not specifically referenced with respect
thereto.
"CCBG ENTITIES" shall mean, collectively, CCBG and all CCBG
Subsidiaries.
"CCBG FINANCIAL STATEMENTS" shall mean (i) the consolidated
statements of condition (including related notes and schedules,
if any) of CCBG as of June 30, 2000, and as of December 31, 1999
and 1998, and the related statements of income, changes in
shareholders' equity, and cash flows (including related notes and
schedules, if any) for the six months ended June 30, 2000, and
for each of the three fiscal years ended December 31, 1999, 1998
and 1997, as filed by CCBG in SEC Documents, and (ii) the
consolidated statements of condition and balance sheets of CCBG
(including related notes and schedules, if any) and related
statements of income, changes in shareholders' equity, and cash
flows (including related notes and schedules, if any) included in
SEC Documents filed with respect to periods ended subsequent to
December 31, 1999.
"CCBG MATERIAL ADVERSE EFFECT" shall mean an event, change
or occurrence which, individually or together with any other
event, change or occurrence, has a material adverse impact on (i)
the financial position, business, or results of operations of
CCBG and its Subsidiaries, taken as a whole, or (ii) the ability
of CCBG to perform its obligations under this Agreement or to
consummate the Mergers or the other transactions contemplated by
this Agreement, including without limitation the tax-free
reorganization status of the Mergers; provided that "Material
Adverse Effect" shall not be deemed to include the impact of (a)
changes in banking and similar Laws of general applicability or
interpretations thereof by courts or governmental authorities,
(b) changes in generally accepted accounting principles or
regulatory accounting principles generally applicable to banks
and their holding companies, (c) actions and omissions of CCBG
(or any of its Subsidiaries) taken with the prior informed
written Consent of FBWP in contemplation of the transactions
contemplated hereby, and (d) the direct effects of compliance
with this Agreement on the operating performance of CCBG,
including expenses incurred by CCBG in consummating the
transactions contemplated by this Agreement.
"CCBG PREFERRED STOCK" shall mean the preferred stock of
CCBG, $0.01 par value per share.
"CCBG STOCK PLANS" shall mean the existing stock-based plans
of CCBG designated as follows: (i) 1996 Associate Incentive
Plan, (ii) Associate Stock Purchase Plan, (iii) Director Stock
Purchase Plan and (iv) Dividend Reinvestment Plan.
"CCBG SUBSIDIARIES" shall mean the Subsidiaries of CCBG,
which shall include the CCBG Subsidiaries described in Section
6.4 and any corporation, bank, savings association, or other
organization acquired as a Subsidiary of CCBG in the future and
held as a Subsidiary by CCBG at the Effective Time.
"CLOSING DATE" shall mean the date on which the Closing
occurs.
"CONFIDENTIALITY AGREEMENT" shall mean that certain
Confidentiality Agreement, dated January 25, 2000, between FBWP
and CCBG.
"CONSENT" shall mean any consent, approval, authorization,
clearance, exemption, waiver, or similar affirmation by any
Person pursuant to any Contract, Law, Order, or Permit.
"CONTRACT" shall mean any written or oral agreement,
arrangement, authorization, commitment, contract, indenture,
instrument, lease, obligation, plan, practice, restriction,
understanding, or undertaking of any kind or character, or other
document to which any Person is a party or that is binding on any
Person or its capital stock, Assets or business.
"DEFAULT" shall mean (i) any breach or violation of, default
under, contravention of, or conflict with, any Contract, Law,
Order, or Permit, (ii) any occurrence of any event that with the
passage of time or the giving of notice or both would constitute
a breach or violation of, default under, contravention of, or
conflict with, any Contract, Law, Order, or Permit, or (iii) any
occurrence of any event that with or without the passage of time
or the giving of notice would give rise to a right of any Person
to exercise any remedy or obtain any relief under, terminate or
revoke, suspend, cancel, or modify or change the current terms
of, or renegotiate, or to accelerate the maturity or performance
of, or to increase or impose any Liability under, any Contract,
Law, Order, or Permit.
"ENVIRONMENTAL LAWS" shall mean all Laws relating to
pollution or protection of human health or the environment
(including ambient air, surface water, ground water, land
surface, or subsurface strata) and which are administered,
interpreted, or enforced by the United States Environmental
Protection Agency and state and local agencies with jurisdiction
over, and including common law in respect of, pollution or
protection of the environment, including the Comprehensive
Environmental Response Compensation and Liability Act, as
amended, 42 U.S.C. 9601 et seq. ("CERCLA"), the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. 6901 et
seq. ("RCRA"), and other Laws relating to emissions, discharges,
releases, or threatened releases of any Hazardous Material, or
otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport, or handling of any
Hazardous Material.
"EQUITY RIGHTS" shall mean all arrangements, calls,
commitments, Contracts, options, rights to subscribe to, scrip,
understandings, warrants, or other binding obligations of any
character whatsoever relating to, or securities or rights
convertible into or exchangeable for, shares of the capital stock
of a Person or by which a Person is or may be bound to issue
additional shares of its capital stock or other Equity Rights.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
"EXHIBITS" 1 through 7, inclusive, shall mean the Exhibits
so marked, copies of which are attached to this Agreement. Such
Exhibits are hereby incorporated by reference herein and made a
part hereof, and may be referred to in this Agreement and any
other related instrument or document without being attached
hereto.
"FBCA" shall mean the Florida Business Corporation Act.
"FBWP COMMON STOCK" shall mean the common stock of FBWP,
$1.25 par value per share.
"FBWP DISCLOSURE MEMORANDUM" shall mean the written
information entitled "First Bankshares of West Point, Inc.
Disclosure Memorandum" delivered prior to the date of this
Agreement to CCBG describing in reasonable detail the matters
contained therein and, with respect to each disclosure made
therein, specifically referencing each Section of this Agreement
under which such disclosure is being made. Information disclosed
with respect to one Section shall not be deemed to be disclosed
for purposes of any other Section not specifically referenced
with respect thereto.
"FBWP ENTITIES" shall mean, collectively, FBWP and all FBWP
Subsidiaries.
"FBWP FINANCIAL STATEMENTS" shall mean (i) the consolidated
statements of condition (including related notes and schedules,
if any) of FBWP as of June 30, 2000, and as of December 31, 1999,
1998 and 1997, and the related statements of income, changes in
shareholders' equity, and cash flows (including related notes and
schedules, if any) for the six months ended June 30, 2000, and
for each of the three fiscal years ended December 31, 1999, 1998
and 1997, and (ii) the consolidated statements of condition of
FBWP (including related notes and schedules, if any) and related
statements of income, changes in shareholders' equity, and cash
flows (including related notes and schedules, if any) that are
delivered to CCBG with respect to periods ended subsequent to
December 31, 1999.
"FBWP MATERIAL ADVERSE EFFECT" shall mean an event, change
or occurrence which, individually or together with any other
event, change or occurrence, has a material adverse impact on (i)
the financial position, business, or results of operations of
FBWP and its Subsidiaries, taken as a whole, or (ii) the ability
of FBWP to perform its obligations under this Agreement or to
consummate the Mergers or the other transactions contemplated by
this Agreement, provided that "Material Adverse Effect" shall not
be deemed to include the impact of (a) changes in banking and
similar Laws of general applicability or interpretations thereof
by courts or governmental authorities, (b) changes in generally
accepted accounting principles or regulatory accounting
principles generally applicable to banks and their holding
companies, (c) actions and omissions of FBWP (or any of its
Subsidiaries) taken with the prior informed written Consent of
CCBG in contemplation of the transactions contemplated hereby,
and (d) the direct effects of compliance with this Agreement on
the operating performance of FBWP, including expenses incurred by
FBWP in consummating the transactions contemplated by this
Agreement, subject to 9.2(f).
"FBWP STOCK PLANS" shall mean all stock-based plans of FBWP.
"FBWP SUBSIDIARIES" shall mean the Subsidiaries of FBWP,
which shall include the FBWP Subsidiaries described in Section
5.4 and any corporation, bank, savings association, or other
organization acquired as a Subsidiary of FBWP in the future and
held as a Subsidiary by FBWP at the Effective Time.
"FHLMC" shall mean the Federal Home Loan Mortgage
Corporation
"FIRST NATIONAL" shall mean The First National Bank of West
Point, a national banking association and a FBWP Subsidiary.
"FNMA" shall mean the Federal National Mortgage Association.
"▇▇▇▇▇▇ LOAN" shall mean that certain loan made by First
Peoples to the ▇▇▇▇▇▇ Lumber Company and participated out to
First National which was made as of March 2, 1999, in the
original principal amount of $5,000,000.
"GAAP" shall mean generally accepted accounting principles,
consistently applied during the periods involved.
"HAZARDOUS MATERIAL" shall mean (i) any hazardous substance,
hazardous material, hazardous waste, regulated substance, or
toxic substance (as those terms are defined by any applicable
Environmental Laws) and (ii) any chemicals, pollutants,
contaminants, petroleum, petroleum products, or oil (and
specifically shall include asbestos requiring abatement, removal,
or encapsulation pursuant to the requirements of governmental
authorities and any polychlorinated biphenyls).
"HSR ACT" shall mean Section 7A of the ▇▇▇▇▇▇▇ Act, as added
by Title II of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act
of 1976, as amended, and the rules and regulations promulgated
thereunder.
"INTELLECTUAL PROPERTY" shall mean copyrights, patents,
trademarks, service marks, service names, trade names,
applications therefor, technology rights and licenses, computer
software (including any source or object codes therefor or
documentation relating thereto), trade secrets, franchises, know-
how, inventions, and other intellectual property rights.
"INTERNAL REVENUE CODE" shall mean the Internal Revenue Code
of 1986, as amended, and the rules and regulations promulgated
thereunder.
"KNOWLEDGE" as used with respect to a Person (including
references to such Person being aware of a particular matter)
shall mean those facts that are known or should reasonably have
been known after due inquiry by the chairman, president, chief
financial officer, chief accounting officer, chief operating
officer, chief credit officer, general counsel, any assistant or
deputy general counsel, or any senior, executive or other vice
president of such Person and the knowledge of any such persons
obtained or which would have been obtained from a reasonable
investigation.
"LAW" shall mean any code, law (including common law),
ordinance, regulation, reporting or licensing requirement, rule,
or statute applicable to a Person or its Assets, Liabilities, or
business, including those promulgated, interpreted or enforced by
any Regulatory Authority.
"LIABILITY" shall mean any direct or indirect, primary or
secondary, liability, indebtedness, obligation, penalty, cost or
expense (including costs of investigation, collection and
defense), claim, deficiency, guaranty or endorsement of or by any
Person (other than endorsements of notes, bills, checks, and
drafts presented for collection or deposit in the ordinary course
of business) of any type, whether accrued, absolute or
contingent, liquidated or unliquidated, matured or unmatured, or
otherwise.
"LIEN" shall mean any conditional sale agreement, default of
title, easement, encroachment, encumbrance, hypothecation,
infringement, lien, mortgage, pledge, reservation, restriction,
security interest, title retention or other security arrangement,
or any adverse right or interest, charge, or claim of any nature
whatsoever of, on, or with respect to any property or property
interest, other than (i) Liens for current property Taxes not yet
due and payable, (ii) for depository institution Subsidiaries of
a Party, pledges to secure deposits and other Liens incurred in
the ordinary course of the banking business, (iii) Liens which do
not materially impair the use of or title to the Assets subject
to such Lien, and which are disclosed in Section 11.1 of the FBWP
Disclosure Memorandum or the CCBG Disclosure Memorandum, as
applicable.
"LITIGATION" shall mean any action, arbitration, cause of
action, claim, complaint, criminal prosecution, governmental or
other examination or investigation, hearing, administrative or
other proceeding relating to or affecting a Party, its business,
its Assets (including Contracts related to it), or the
transactions contemplated by this Agreement, but shall not
include regular, periodic examinations of depository institutions
and their Affiliates by Regulatory Authorities.
"MATERIAL" for purposes of this Agreement shall be
determined in light of the facts and circumstances of the matter
in question; provided that any specific monetary amount stated in
this Agreement shall determine materiality in that instance.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"NASDAQ NATIONAL MARKET" shall mean the National Market
System of the National Association of Securities Dealers
Automated Quotations System.
"OCC" shall mean the Office of the Comptroller of the
Currency.
"OPERATING PROPERTY" shall mean any property owned, leased,
or operated by the Party in question or by any of its
Subsidiaries or in which such Party or Subsidiary holds a
security interest or other interest (including an interest in a
fiduciary capacity), and, where required by the context, includes
the owner or operator of such property, but only with respect to
such property.
"ORDER" shall mean any administrative decision or award,
decree, injunction, judgment, order, quasi- judicial decision or
award, ruling, or writ of any federal, state, local or foreign or
other court, arbitrator, mediator, tribunal, administrative
agency, or Regulatory Authority.
"PARTICIPATION FACILITY" shall mean any facility or property
in which the Party in question or any of its Subsidiaries
participates in the management and, where required by the
context, said term means the owner or operator of such facility
or property, but only with respect to such facility or property.
"PARTY" shall mean either FBWP or CCBG, and "PARTIES" shall
mean both FBWP and CCBG.
"PERMIT" shall mean any federal, state, local, and foreign
governmental approval, authorization, certificate, easement,
filing, franchise, license, notice, permit, or right to which any
Person is a party or that is or may be binding upon or inure to
the benefit of any Person or its securities, Assets, or business.
"PERSON" shall mean a natural person or any legal,
commercial or governmental entity, such as, but not limited to, a
corporation, general partnership, joint venture, limited
partnership, limited liability company, trust, business
association, group acting in concert, or any person acting in a
representative capacity.
"PROXY STATEMENT" shall mean the proxy statement used by
FBWP to solicit the approval of its shareholders of the
transactions contemplated by this Agreement, which shall include
the prospectus of CCBG relating to the issuance of the CCBG
Common Stock to holders of FBWP Common Stock.
"REGISTRATION STATEMENT" shall mean the Registration
Statement on Form S-4, or other appropriate form, including any
pre-effective or post-effective amendments or supplements
thereto, filed with the SEC by CCBG under the 1933 Act with
respect to the shares of CCBG Common Stock to be issued to the
shareholders of FBWP in connection with the transactions
contemplated by this Agreement.
"REGULATORY AUTHORITIES" shall mean, collectively, the SEC,
the NASD, the Federal Trade Commission, the United States
Department of Justice, the Board of the Governors of the Federal
Reserve System, the Office of the Comptroller of the Currency,
the Federal Deposit Insurance Corporation, Georgia Department of
Banking and Finance and all other federal, state, county, local
or other governmental or regulatory agencies, authorities
(including self- regulatory authorities), instrumentalities,
commissions, boards or bodies having jurisdiction over the
Parties and their respective Subsidiaries.
"REPRESENTATIVE" shall mean any investment banker, financial
advisor, attorney, accountant, consultant, or other
representative engaged by a Person.
"SEC DOCUMENTS" shall mean all forms, proxy statements,
registration statements, reports, schedules, and other documents
filed, or required to be filed, by a Party or any of its
Subsidiaries with any Regulatory Authority pursuant to the
Securities Laws.
"SECURITIES LAWS" shall mean the 1933 Act, the 1934 Act, the
Investment Company Act of 1940, as amended, the Investment
Advisors Act of 1940, as amended, the Trust Indenture Act of
1939, as amended, and the rules and regulations of any Regulatory
Authority promulgated thereunder.
"SHAREHOLDERS' MEETING" shall mean the meeting of the
shareholders of FBWP to be held pursuant to Section 8.1,
including any adjournment or adjournments thereof.
"SIGNIFICANT SUBSIDIARY" shall mean any present or future
consolidated Subsidiary of the Party in question, the assets of
which constitute ten percent (10%) or more of the consolidated
assets of such Party as reflected on such Party's consolidated
statement of condition prepared in accordance with GAAP.
"SUBSIDIARIES" shall mean all those corporations,
associations, or other business entities of which the entity in
question either (i) owns or controls 50% or more of the
outstanding equity securities either directly or through an
unbroken chain of entities as to each of which 50% or more of the
outstanding equity securities is owned directly or indirectly by
its parent (provided, there shall not be included any such entity
the equity securities of which are owned or controlled in a
fiduciary capacity), (ii) in the case of partnerships, serves as
a general partner, (iii) in the case of a limited liability
company, serves as a managing member, or (iv) otherwise has the
ability to elect a majority of the directors, trustees or
managing members thereof.
"SURVIVING CORPORATION" shall mean CCBG as the surviving
corporation resulting from the Holding Company Merger.
"TAX RETURN" shall mean any report, return, information
return, or other information required to be supplied to a taxing
authority in connection with Taxes, including any return of an
affiliated or combined or unitary group that includes a Party or
its Subsidiaries.
"TAX" or "TAXES" shall mean any federal, state, county,
local, or foreign taxes, charges, fees, levies, imposts, duties,
or other assessments, including income, gross receipts, excise,
employment, sales, use, transfer, license, payroll, franchise,
severance, stamp, occupation, windfall profits, environmental,
federal highway use, commercial rent, customs duties, capital
stock, paid-up capital, profits, withholding, Social Security,
single business and unemployment, disability, real property,
personal property, registration, ad valorem, value added,
alternative or add-on minimum, estimated, or other tax or
governmental fee of any kind whatsoever, imposed or required to
be withheld by the United States or any state, county, local or
foreign government or subdivision or agency thereof, including
any interest, penalties, and additions imposed thereon or with
respect thereto.
"USDA GUARANTEE" shall mean the guarantee by the USDA of
payment of the ▇▇▇▇▇▇ Loan.
(b) The terms set forth below shall have the meanings
ascribed thereto in the referenced sections:
Allowance Section 5.9
Bank Merger Preamble
Bank Plan Section 1.2
Cash Exchange Ratio Section 3.1(b)
CCBG Benefit Plans Section 6.15
CCBG Contracts Section 6.16
CCBG ERISA Plan Section 6.15
CCBG Pension Plan Section 6.15
CCBG SEC Reports Section 6.5(a)
Closing Section 1.2
Deficient Amount Section 3.1(b)
Effective Time Section 1.3
Employment Agreements Section 8.14(b)
ERISA Affiliate Section 5.15(b)
Escrow Agent Section 3.6
Exchange Agent Section 4.1
Exchange Ratio Section 3.1(b)
FBWP Benefit Plans Section 5.15
FBWP Contracts Section 5.16
FBWP ERISA Plan Section 5.15
FBWP Options Section 3.6
FBWP Pension Plan Section 5.15
First Peoples Section 3.1(b)
Holding Company Merger Preamble
Maximum Amount Section 8.15
Mergers Preamble
Share Exchange Ratio Section 3.1(b)
Takeover Laws Section 5.21
Tax Opinion Section 9.1(h)
Wholesale Mortgage Business Section 5.16
Withholding Amount Section 3.6
(c) Any singular term in this Agreement shall be
deemed to include the plural, and any plural term the singular.
Whenever the words "include," "includes" or "including" are used
in this Agreement, they shall be deemed followed by the words
"without limitation."
ARTICLE 11.2 EXPENSES . Except as otherwise provided in this
Section 11.2, each of the Parties shall bear and pay all direct
costs and expenses incurred by it or on its behalf in connection
with the transactions contemplated hereunder, including filing,
registration and application fees, printing fees, and fees and
expenses of its own financial or other consultants, investment
bankers, accountants, and counsel, except that each of the
Parties shall bear and pay one-half of the filing fees payable in
connection with the Registration Statement and the Proxy
Statement and printing costs incurred in connection with the
printing of the Registration Statement and the Proxy Statement.
ARTICLE 11.3 BROKERS AND FINDERS . Except for ▇▇▇▇▇, ▇▇▇▇▇
Capital Partners, Inc. as to FBWP and except for ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
& ▇▇▇▇▇▇, Inc. as to CCBG, each of the Parties represents and
warrants that neither it nor any of its officers, directors,
employees, or Affiliates has employed any broker or finder or
incurred any Liability for any financial advisory fees,
investment bankers' fees, brokerage fees, commissions, or
finders' fees in connection with this Agreement or the
transactions contemplated hereby. 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 FBWP
or by CCBG, each of FBWP and CCBG, as the case may be, agrees to
indemnify and hold the other Party harmless of and from any
Liability in respect of any such claim.
ARTICLE 11.4 ENTIRE AGREEMENT . Except as otherwise expressly
provided herein, this Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement
between the Parties with respect to the transactions contemplated
hereunder and supersedes all prior arrangements or understandings
with respect thereto, written or oral (except, as to Section
8.6(b), for the Confidentiality Agreement). Nothing in this
Agreement expressed or implied, is intended to confer upon any
Person, other than the Parties or their respective successors,
any rights, remedies, obligations, or liabilities under or by
reason of this Agreement, other than as provided in Sections 8.14
and 8.15.
ARTICLE 11.5 AMENDMENTS . To the extent permitted by Law, this
Agreement may be amended by a subsequent writing signed by each
of the Parties upon the approval of each of the Parties, whether
before or after shareholder approval of this Agreement has been
obtained; provided, that after any such approval by the holders
of FBWP Common Stock, there shall be made no amendment that
reduces or modifies in any material adverse respect the
consideration to be received by holders of FBWP Common Stock; and
further provided, that the provisions of this Agreement relating
to the manner or basis in which shares of FBWP Common Stock will
be exchanged for shares of CCBG Common Stock shall not be amended
after the Shareholders' Meeting in a manner adverse to the
holders of CCBG Common Stock without any requisite approval of
the holders of the issued and outstanding shares of CCBG Common
Stock entitled to vote thereon.
ARTICLE 11.6 WAIVERS .
(a) Prior to or at the Effective Time, CCBG, acting
through its Board of Directors, chief executive officer or other
authorized officer, shall have the right to waive any Default in
the performance of any term of this Agreement by FBWP, to waive
or extend the time for the compliance or fulfillment by FBWP of
any and all of its obligations under this Agreement, and to waive
any or all of the conditions precedent to the obligations of CCBG
under this Agreement, except any condition which, if not
satisfied, would result in the violation of any Law. No such
waiver shall be effective unless in writing signed by a duly
authorized officer of CCBG.
(b) Prior to or at the Effective Time, FBWP, acting
through its Board of Directors, chief executive officer or other
authorized officer, shall have the right to waive any Default in
the performance of any term of this Agreement by CCBG, to waive
or extend the time for the compliance or fulfillment by CCBG of
any and all of its obligations under this Agreement, and to waive
any or all of the conditions precedent to the obligations of FBWP
under this Agreement, except any condition which, if not
satisfied, would result in the violation of any Law. No such
waiver shall be effective unless in writing signed by a duly
authorized officer of FBWP.
(c) The failure of any Party at any time or times to
require performance of any provision hereof shall in no manner
affect the right of such Party at a later time to enforce the
same or any other provision of this Agreement. No waiver of any
condition or of the breach of any term contained in this
Agreement in one or more instances shall be deemed to be or
construed as a further or continuing waiver of such condition or
breach or a waiver of any other condition or of the breach of any
other term of this Agreement.
ARTICLE 11.7 ASSIGNMENT . Except as expressly contemplated
hereby, neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any Party hereto
(whether by operation of Law or otherwise) without the prior
written consent of the other Party. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable by the Parties and their respective
successors and assigns.
ARTICLE 11.8 NOTICES . All notices or other communications
which are required or permitted hereunder shall be in writing and
sufficient if delivered by hand, by facsimile transmission, by
registered or certified mail, postage pre-paid, or by courier or
overnight carrier, to the persons at the addresses set forth
below (or at such other address as may be provided hereunder),
and shall be deemed to have been delivered as of the date so
delivered:
FBWP: First Bankshares of West Point, Inc.
3rd Avenue and ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Copy to Counsel: Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇, Esq.
CCBG: Capital City Bank Group, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Copy to Counsel: Gunster, Yoakley & ▇▇▇▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
ARTICLE 11.9 GOVERNING LAW . This Agreement shall be governed
by and construed in accordance with the Laws of the State of
Florida, without regard to any applicable conflicts of Laws.
ARTICLE 11.10 COUNTERPARTS . This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the
same instrument.
ARTICLE 11.11 CAPTIONS; ARTICLES AND SECTIONS . The captions
contained in this Agreement are for reference purposes only and
are not part of this Agreement. Unless otherwise indicated, all
references to particular Articles or Sections shall mean and
refer to the referenced Articles and Sections of this Agreement.
ARTICLE 11.12 INTERPRETATIONS . Neither this Agreement nor any
uncertainty or ambiguity herein shall be construed or resolved
against any party, whether under any rule of construction or
otherwise. No party to this Agreement shall be considered the
draftsman. The parties acknowledge and agree that this Agreement
has been reviewed, negotiated, and accepted by all parties and
their attorneys and shall be construed and interpreted according
to the ordinary meaning of the words used so as fairly to
accomplish the purposes and intentions of all parties hereto.
ARTICLE 11.13 ENFORCEMENT OF AGREEMENT . The Parties hereto
agree that irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in
accordance with its specific terms or were otherwise breached.
It is accordingly agreed that the Parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof in
any court of the United States or any state having jurisdiction,
this being in addition to any other remedy to which they are
entitled at law or in equity.
ARTICLE 11.14 SEVERABILITY . Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction
shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of
the terms or provisions of this Agreement in any other
jurisdiction. If any provision of this Agreement is so broad as
to be unenforceable, the provision shall be interpreted to be
only so broad as is enforceable.
IN WITNESS WHEREOF, each of the Parties has caused this
Agreement to be executed on its behalf by its duly authorized
officers as of the day and year first above written.
CAPITAL CITY BANK GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
President and CEO
FIRST BANKSHARES OF WEST POINT, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Chairman
WPB/WP/513425.11
LIST OF EXHIBITS
Exhibit
Number Description
------- -----------
1. Bank Plan of Merger. (Section 1.4).
2. Form of agreement of affiliates of FBWP. (Sections 8.13 and 9.2(g)).
3. Form of Stock Option Agreement. (Section 8.17).
4. Matters as to which Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP will opine.
(Section 9.2(d)).
5. Form of Director's Agreement. (Sections 8.18 and 9.2(g)).
6. Claims Letter. (Section 9.2(h)).
7. Matters as to which Gunster, Yoakley & ▇▇▇▇▇▇▇, P.A. will opine.
(Section 9.3(d)).
Copies of the above exhibits will be provided to the Securities and
Exchange Commission upon request.
WPB/WP/513425.11