AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION
BY AND BETWEEN
FIRST ALLIANCE/PREMIER BANCSHARES, INC.
AND
CENTRAL AND SOUTHERN HOLDING COMPANY
DATED AS OF FEBRUARY 3, 1997
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TABLE OF CONTENTS
Page
----
Preamble................................................................ A-6
ARTICLE 1
TRANSACTIONS AND TERMS OF MERGER..................................... A-6
Merger............................................................... A-6
Time and Place of Closing............................................ A-7
Effective Time....................................................... A-7
ARTICLE 2
TERMS OF MERGER...................................................... A-7
Articles of Incorporation............................................ A-7
Bylaws............................................................... A-7
Directors and Officers............................................... A-7
Names................................................................ A-8
ARTICLE 3
MANNER OF CONVERTING SHARES.......................................... A-8
Conversion of Shares................................................. A-8
Anti-Dilution Provisions............................................. A-8
Shares Held by Premier or Central and Southern....................... A-8
Conversion of Stock Options; Restricted Stock........................ A-9
ARTICLE 4
EXCHANGE OF SHARES................................................... A-9
Exchange Procedures.................................................. A-9
Rights of Former Central and Southern Shareholders................... A-10
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
OF CENTRAL AND SOUTHERN............................................ A-11
Organization, Standing, and Power.................................... A-11
Authority; No Breach By Agreement.................................... A-11
Common Stock......................................................... A-12
Central and Southern Subsidiaries.................................... A-12
Financial Statements................................................. A-13
Absence of Undisclosed Liabilities................................... A-13
Absence of Certain Changes or Events................................. A-14
Tax Matters.......................................................... A-14
Allowance for Possible Loan Losses................................... A-15
Assets............................................................... A-15
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Environmental Matters................................................ A-16
Compliance with Laws................................................. A-16
Labor Relations...................................................... A-17
Employee Benefit Plans............................................... A-17
Material Contracts................................................... A-19
Legal Proceedings.................................................... A-19
Reports.............................................................. A-20
Statements True and Correct.......................................... A-20
Accounting, Tax and Regulatory Matters............................... A-21
Charter Provisions................................................... A-21
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF PREMIER............................ A-21
Organization, Standing, and Power.................................... A-21
Authority; No Breach By Agreement.................................... A-21
Capital Stock........................................................ A-22
Premier Subsidiaries................................................. A-23
Financial Statements................................................. A-23
Absence of Undisclosed Liabilities................................... A-24
Absence of Certain Changes or Events................................. A-24
Tax Matters.......................................................... A-24
Allowance for Possible Loan Losses................................... A-25
Assets............................................................... A-25
Environmental Matters................................................ A-26
Compliance with Laws................................................. A-26
Labor Relations...................................................... A-27
Employee Benefit Plans............................................... A-27
Material Contracts................................................... A-29
Legal Proceedings.................................................... A-29
Reports.............................................................. A-30
Statements True and Correct.......................................... A-30
Accounting, Tax and Regulatory Matters............................... A-30
Charter Provisions................................................... A-31
ARTICLE 7
CONDUCT OF BUSINESS PENDING CONSUMMATION............................. A-31
Affirmative Covenants of Central and Southern........................ A-31
Negative Covenants of Central and Southern........................... A-31
Affirmative Covenants of Premier..................................... A-33
Negative Covenants of Premier........................................ A-34
Adverse Changes in Condition......................................... A-36
Reports.............................................................. ▇-▇▇
▇-▇
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ARTICLE 8
ADDITIONAL AGREEMENTS................................................ A-36
Registration Statement; Proxy Statement; Shareholder Approval........ A-36
Exchange Listing..................................................... A-37
Applications......................................................... A-37
Filings with State Offices........................................... A-37
Agreement as to Efforts to Consummate................................ A-37
Investigation and Confidentiality.................................... A-37
Press Releases....................................................... A-38
Acquisition Proposals................................................ A-38
Accounting and Tax Treatment......................................... A-38
Agreement of Affiliates.............................................. A-39
Employee Benefits and Contracts...................................... A-39
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE.................... A-40
Conditions to Obligations of Each Party.............................. A-40
Conditions to Obligations of Premier................................. A-41
Conditions to Obligations of Central and Southern.................... A-43
ARTICLE 10
TERMINATION.......................................................... A-44
Termination.......................................................... A-44
Effect of Termination................................................ A-46
Non-Survival of Representations and Covenants........................ A-46
ARTICLE 11
MISCELLANEOUS........................................................ A-46
Definitions.......................................................... A-46
Expenses............................................................. A-53
Brokers and Finders.................................................. A-54
Entire Agreement..................................................... A-54
Amendments........................................................... A-54
Waivers.............................................................. A-55
Assignment........................................................... A-55
Notices.............................................................. A-55
Governing Law........................................................ A-56
Counterparts......................................................... A-56
Captions............................................................. A-56
Enforcement of Agreement............................................. A-57
Severability......................................................... ▇-▇▇
▇-▇
LIST OF EXHIBITS
----------------
Exhibit Number Description
-------------- -----------
1. Form of Agreement of Affiliates of Central and Southern.
((S) 8.10).
2. Matters as to which Counsel for Central and Southern will
opine. ((S) 9.2(d)).
3. Form of Claims/Indemnification Letter ((S) 9.2(e)).
4. Matters as to which Counsel for Premier will opine.
((S) 9.3(d)).
5. Central and Southern Employment Agreements. ((S) 8.11(b)).
6. Premier Employment Agreement. ((S) 8.11(c)).
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AGREEMENT AND PLAN OF REORGANIZATION
------------------------------------
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is made
and entered into as of February 3, 1997 by and between FIRST ALLIANCE/PREMIER
BANCSHARES, INC. ("Premier"), a corporation organized and existing under the
laws of the State of Georgia, with its principal office located in Marietta,
Georgia, and CENTRAL AND SOUTHERN HOLDING COMPANY ("Central and Southern"), a
corporation organized and existing under the laws of the State of Georgia, with
its principal office located in Milledgeville, Georgia.
PREAMBLE
---------
The Boards of Directors of Premier and Central and Southern are of the
opinion that the transactions described herein are in the best interests of the
parties and their respective shareholders. This Agreement provides for the
merger of Central and Southern with and into Premier, with Premier being the
surviving corporation of the merger. At the effective time of such merger, the
outstanding shares of capital stock of Central and Southern will be converted
into the right to receive shares of capital stock of the surviving corporation.
As a result, shareholders of Central and Southern will become shareholders of
the surviving corporation, and each of the subsidiaries of Central and Southern
will continue to conduct its business and operations as a wholly-owned
subsidiary of the surviving corporation. The transactions described in this
Agreement are subject to the approvals of the Boards of Directors and the
shareholders of both Central and Southern and Premier, the Board of Governors of
the Federal Reserve System, the Georgia Department of Banking and Finance and
the satisfaction of certain other conditions described in this Agreement. It is
the intention of the parties to this Agreement that the merger (i) for federal
income tax purposes shall qualify as a "reorganization" within the meaning of
Section 368(a) of the Internal Revenue Code and (ii) for accounting purposes
shall be accounted for as a "pooling of interests."
Certain terms used in this Agreement are defined in Section 11.1 of
this Agreement.
NOW, THEREFORE, in consideration of the above and the mutual
warranties, representations, covenants and agreements set forth herein, the
parties agree as follows:
ARTICLE 1
TRANSACTIONS AND TERMS OF MERGER
--------------------------------
1.1 MERGER. Subject to the terms and conditions of this Agreement,
------
at the Effective Time, Central and Southern shall be merged with and into
Premier in accordance with the provisions of Section 14-2-1101 of the GBCC and
with the effect provided in Section 14-2-1106 of the GBCC (the "Merger").
Premier shall be the Surviving Corporation resulting from the Merger.
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The Merger shall be consummated pursuant to the terms of this Agreement, which
has been approved and adopted by the respective Boards of Directors of Premier
and Central and Southern.
1.2 TIME AND PLACE OF CLOSING. The Closing will take place at 10:00
-------------------------
a.m. on the date that the Effective Time occurs (or the immediately preceding
day if the Effective Time is earlier than 10:00 a.m.), or at such other time as
the Parties, acting through their chief executive officers may mutually agree.
The place of Closing shall be at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇,
PLLC, Atlanta, Georgia, or such other place as may be mutually agreed upon by
the Parties.
1.3 EFFECTIVE TIME. The Merger and other transactions contemplated
--------------
by this Agreement shall become effective on the date and at the time the
Articles of Merger reflecting the Merger shall become effective with the
Secretary of State of the State of Georgia (the "Effective Time"). Subject to
the terms and conditions hereof, unless otherwise mutually agreed upon in
writing by the chief executive officer of each Party, the Parties shall use
their reasonable efforts to cause the Effective Time to occur on the last
business day of the month in which occurs the last to occur of (a) the effective
date (including expiration of any applicable waiting period) of the last
required Consent of any Regulatory Authority having authority over and approving
or exempting the Merger, (b) the date on which the shareholders of Central and
Southern approve this Agreement to the extent such approval is required by
applicable Law, and (c) the date on which the shareholders of Premier approve
this Agreement to the extent such approval is required; or such later date as
may be mutually agreed upon in writing by the chief executive officer of each
Party.
ARTICLE 2
TERMS OF MERGER
---------------
2.1 ARTICLES OF INCORPORATION. The Articles of Incorporation of
-------------------------
Premier in effect immediately prior to the Effective Time shall be the Articles
of Incorporation of the Surviving Corporation until otherwise amended or
repealed.
2.2 BYLAWS. The Bylaws of Premier in effect immediately prior to
------
the Effective Time shall be the Bylaws of the Surviving Corporation until
otherwise amended or repealed.
2.3 DIRECTORS AND OFFICERS. The directors of the Surviving
----------------------
Corporation from and after the Effective Time shall consist of six outside
directors of Premier to be specified to Central and Southern within fifteen (15)
days after the execution of this Agreement, six outside directors of Central and
Southern to be specified to Premier within fifteen (15) days after the execution
of this Agreement, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and J. ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇., as inside directors who shall serve in accordance with the Bylaws
of the Surviving Corporation. The officers of the Surviving Corporation shall
be as follows: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall be its Chairman of the Board and Chief
Executive Officer and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall be its President and Chief
Operating Officer, J. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇., shall be its Vice Chairman and ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇ shall be its Executive Vice Presidents. Such
officers, together with such additional persons as may
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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. At the Effective Time of the Merger, ▇▇. ▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ and
▇▇. ▇▇▇▇▇▇ will be elected to the board of directors of all of the Subsidiaries
of the Surviving Corporation. ▇▇. ▇▇▇▇▇▇▇ will continue as Chairman and Chief
Executive Officer of Premier Lending Corporation. ▇▇. ▇▇▇▇▇▇ will continue as
President of The Central and Southern Bank of Georgia and on the Board of
Directors of The Central and Southern Bank of North Georgia, F.S.B. ▇▇. ▇▇▇▇▇▇
will continue as President and Chief Executive Officer of Premier Bank and on
the board of directors of Premier Bank, F.S.B. and Alliance Finance. ▇▇.
▇▇▇▇▇▇▇▇▇ will continue as Chief Financial Officer of The Central and Southern
Bank of Georgia and The Central and Southern Bank of North Georgia, F.S.B.
2.4 NAMES. At the Effective Time of the Merger, the Surviving
-----
Corporation will change its name to "Premier Bancshares, Inc." As soon as
practicable following the Effective Time, The Central and Southern Bank of North
Georgia, F.S.B. will change its name to "Premier Bank F.S.B."
ARTICLE 3
MANNER OF CONVERTING SHARES
---------------------------
3.1 CONVERSION OF SHARES. Subject to the provisions of this Article
--------------------
3, at the Effective Time, by virtue of the Merger and without any action on the
part of the holders thereof, the shares of the constituent corporations shall be
converted as follows:
Each share of Premier Common Stock issued and outstanding immediately
prior to the Effective Time shall remain issued and outstanding from and after
the Effective Time.
Each share of Central and Southern Common Stock (excluding shares held
by Premier or Central and Southern or any of their respective Subsidiaries, in
each case other than in a fiduciary capacity or as a result of debts previously
contracted) issued and outstanding at the Effective Time shall cease to be
outstanding and shall be converted into and exchanged for the right to receive
one share of Surviving Corporation Common Stock (the "Exchange Ratio").
3.2 ANTI-DILUTION PROVISIONS. In the event Premier or Central and
------------------------
Southern changes the number of shares of Premier Common Stock or Central and
Southern Common Stock, respectively, issued and outstanding prior to the
Effective Time as a result of a stock split, stock dividend or similar
recapitalization with respect to such stock and the record date therefor (in the
case of a stock dividend) or the effective date therefor (in the case of a stock
split or similar recapitalization) shall be prior to the Effective Time, the
Exchange Ratio shall be proportionately adjusted, provided, however, that the
Exchange Ratio shall not be adjusted for the Premier stock split described in
Section 9.3(e) herein.
3.3 SHARES HELD BY PREMIER OR CENTRAL AND SOUTHERN. Each of the
----------------------------------------------
shares of Premier Common Stock held by any Premier Company or by any Central and
Southern Company, in each
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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.
3.4 CONVERSION OF STOCK OPTIONS; RESTRICTED STOCK.
---------------------------------------------
(a) At the Effective Time, all rights with respect to Central and
Southern Common Stock pursuant to stock options ("Central and Southern Options")
granted by Central and Southern under the Central and Southern Stock Plans,
which are outstanding at the Effective Time, whether or not exercisable, shall
be converted into and become rights with respect to Surviving Corporation Common
Stock, and the Surviving Corporation shall assume each Central and Southern
Option, in accordance with the terms of the Central and Southern Stock Plan and
stock option agreement by which it is evidenced. From and after the Effective
Time, (i) each Central and Southern Option assumed by the Surviving Corporation
may be exercised solely for shares of Surviving Corporation Common Stock, (ii)
the number of shares of Surviving Corporation Common Stock subject to such
Central and Southern Option shall be equal to the number of shares of Central
and Southern Common Stock subject to such Central and Southern Option
immediately prior to the Effective Time, and (iii) the per share exercise price
under each such Central and Southern Option shall not be changed. It is
intended that the foregoing assumption shall be undertaken in a manner that will
not constitute a "modification" as defined in Section 424 of the Internal
Revenue Code, as to any stock option which is an "incentive stock option."
Central and Southern and Premier agree to take all necessary steps to effect the
provisions of this Section 3.4.
(b) All restrictions or limitations on transfer with respect to
Central and Southern Common Stock awarded under the Central and Southern Stock
Plans or any other plan, program or arrangement of any Central and Southern
Company, to the extent that such restrictions or limitations shall not have
already lapsed, and except as otherwise expressly provided in such plan, program
or arrangement, shall remain in full force and effect with respect to shares of
Surviving Corporation Common Stock into which such restricted stock is converted
pursuant to Section 3.1 of this Agreement.
ARTICLE 4
EXCHANGE OF SHARES
------------------
4.1 EXCHANGE PROCEDURES. Unless the parties otherwise agree,
-------------------
promptly after the Effective Time, the Surviving Corporation shall mail to the
former holders of Central and Southern Common Stock appropriate transmittal
materials which shall specify that delivery shall be effected, and risk of loss
and title to the certificates theretofore representing shares of Central and
Southern Common Stock shall pass, only upon proper delivery of such certificates
to the Surviving Corporation. After the Effective Time, each holder of shares of
Central and Southern Common Stock (other than shares to be canceled pursuant to
Section 3.3 of this Agreement) issued and outstanding at the Effective Time
shall surrender the certificate or certificates representing such shares to the
Surviving Corporation and shall promptly upon surrender thereof receive in
exchange
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therefor the consideration provided in Section 3.1 of this Agreement, together
with all undelivered dividends or distributions in respect of such shares
(without interest thereon) pursuant to Section 4.2 of this Agreement. The
Surviving Corporation shall not be obligated to deliver the consideration to
which any former holder of Central and Southern Common Stock is entitled as a
result of the Merger until such holder surrenders his or her certificate or
certificates representing the shares of Central and Southern Common Stock for
exchange as provided in this Section 4.1. The certificate or certificates of
Central and Southern Common Stock so surrendered shall be duly endorsed as the
Surviving Corporation may require. Any other provision of this Agreement
notwithstanding, the Surviving Corporation shall not be liable to a holder of
Central and Southern Common Stock for any amounts paid or property delivered in
good faith to a public official pursuant to any applicable abandoned property
Law.
4.2 RIGHTS OF FORMER CENTRAL AND SOUTHERN SHAREHOLDERS. The stock
--------------------------------------------------
transfer books of Central and Southern shall be closed as to holders of Central
and Southern Common Stock immediately prior to the Effective Time and no
transfer of Central and Southern Common Stock by any such holder shall
thereafter be made or recognized. Until surrendered for exchange in accordance
with the provisions of Section 4.1 of this Agreement, each certificate
theretofore representing shares of Central and Southern Common Stock (other than
shares to be canceled pursuant to Section 3.3) shall from and after the
Effective Time represent for all purposes only the right to receive the
consideration provided in Section 3.1 of this Agreement in exchange therefor.
To the extent permitted by Law, former holders of record of Central and Southern
Common Stock shall be entitled to vote after the Effective Time at any meeting
of Surviving Corporation shareholders the number of whole shares of Surviving
Corporation Common Stock into which their respective shares of Central and
Southern Common Stock are converted, regardless of whether such holders have
exchanged their certificates representing Central and Southern Common Stock for
certificates representing Surviving Corporation Common Stock in accordance with
the provisions of this Agreement. Whenever a dividend or other distribution is
declared by the Surviving Corporation on the Surviving Corporation Common Stock,
the record date for which is at or after the Effective Time, the declaration
shall include dividends or other distributions on all shares issuable pursuant
to this Agreement, but no dividend or other distribution payable to the holders
of record of Surviving Corporation Common Stock as of any time subsequent to the
Effective Time shall be delivered to the holder of any certificate representing
shares of Central and Southern Common Stock issued and outstanding at the
Effective Time until such holder surrenders such certificate for exchange as
provided in Section 4.1 of this Agreement. However, upon surrender of such
Central and Southern Common Stock certificate, the Surviving Corporation Common
Stock certificate and with all such undelivered dividends or other distributions
(without interest) shall be delivered and paid with respect to each share
represented by such certificate.
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES
------------------------------
OF CENTRAL AND SOUTHERN
-----------------------
Central and Southern hereby represents and warrants to Premier as
follows:
5.1 ORGANIZATION, STANDING, AND POWER. Central and Southern is a
---------------------------------
corporation duly organized, validly existing, and in good standing under the
Laws of the State of Georgia and is duly registered as a bank holding company
under the BHC Act. Central and Southern has the corporate power and authority
to carry on its business as now conducted and to own, lease and operate its
Assets. Central and Southern is duly qualified or licensed to transact business
as a foreign corporation in good standing in the States of the United States and
foreign jurisdictions where the character of its Assets or the nature or conduct
of its business requires it to be so qualified or licensed, except for such
jurisdictions in which the failure to be so qualified or licensed is not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on Central and Southern.
5.2 AUTHORITY; NO BREACH BY AGREEMENT.
----------------------------------
(a) Central and Southern has the corporate power and authority
necessary to execute, deliver and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby. The execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated herein, including the Merger, have been duly and validly authorized
by all necessary corporate action in respect thereof on the part of Central and
Southern, subject to the approval of this Agreement by the holders of a majority
of the outstanding Central and Southern Common Stock, which is the only
shareholder vote required for approval of this Agreement and consummation of the
Merger by Central and Southern. Subject to such requisite shareholder approval,
this Agreement represents a legal, valid and binding obligation of Central and
Southern, enforceable against Central and Southern in accordance with its terms
(except in all cases as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or similar Laws affecting
the enforcement of creditors' rights generally and except that the availability
of the equitable remedy of specific performance or injunctive relief is subject
to the discretion of the court before which any proceeding may be brought).
(b) Neither the execution and delivery of this Agreement by Central
and Southern, nor the consummation by Central and Southern of the transactions
contemplated hereby, nor compliance by Central and Southern with any of the
provisions hereof will (i) conflict with or result in a breach of any provision
of Central and Southern's Articles of Incorporation or Bylaws, or (ii)
constitute or result in a Default under, or require any Consent pursuant to, or
result in the creation of any Lien on any Asset of any Central and Southern
Company under, any Contract or Permit of any Central and Southern Company, where
such Default or Lien, or any failure to obtain such Consent, is reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Central and Southern, or (iii) subject to receipt of the requisite approvals
referred to in Section 9.1 (b)
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of this Agreement, violate any Law or Order applicable to any Central and
Southern Company or any of their respective Assets.
(c) Other than in connection or compliance with the provisions of the
Securities Laws, applicable state corporate and securities Laws, and rules of
the NASD, and other than Consents required from Regulatory Authorities, and
other than notices to or filings with the Internal Revenue Service or the
Pension Benefit Guaranty Corporation with respect to any employee benefit plans,
and other than Consents, filings or notifications which, if not obtained or
made, are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Central and Southern, no notice to, filing with, or
Consent of any public body or authority is necessary for the consummation by
Central and Southern of the Merger and the other transactions contemplated in
this Agreement.
5.3 COMMON STOCK.
------------
(a) The authorized Common stock of Central and Southern consists of
10,000,000 shares of Central and Southern Common Stock, of which 3,653,523
shares are issued and outstanding as of the date of this Agreement and not more
than 3,653,523 shares will be issued and outstanding at the Effective Time (as a
result of the exercise of outstanding options). All of the issued and
outstanding shares of capital stock of Central and Southern 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 Central and Southern has been
issued in violation of any preemptive rights of the current or past shareholders
of Central and Southern. Central and Southern has reserved 170,000 shares of
Central and Southern Common Stock for issuance under the Central and Southern
Stock Plans, pursuant to which options to purchase not more than 153,000 shares
of Central and Southern Common Stock are outstanding as of the date of this
Agreement and at the Effective Time.
(b) Except as set forth in Section 5.3(a) of this Agreement, or as
disclosed in Section 5.3 of the Central and Southern Disclosure Memorandum,
---------------------
there are no shares of capital stock or other equity securities of Central and
Southern outstanding and no outstanding Rights relating to the capital stock of
Central and Southern.
5.4 CENTRAL AND SOUTHERN SUBSIDIARIES. Central and Southern has
---------------------------------
disclosed in Section 5.4 of the Central and Southern Disclosure Memorandum all
---------------------
of the Central and Southern Subsidiaries as of the date of this Agreement.
Except as disclosed in Section 5.4 of the Central and Southern Disclosure
----------
Memorandum, Central and Southern or one of its Subsidiaries owns all of the
----------
issued and outstanding shares of capital stock of each Central and Southern
Subsidiary. No equity securities of any Central and Southern Subsidiary are or
may become required to be issued (other than to another Central and Southern
Company) by reason of any Rights, and there are no Contracts by which any
Central and Southern Subsidiary is bound to issue (other than to another Central
and Southern Company) additional shares of its capital stock or Rights, or by
which any Central and Southern Company is or may be bound to transfer any shares
of the capital stock of any Central and Southern Subsidiary (other than to
another Central and Southern Company), and there are no
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Contracts by which any Central and Southern Subsidiary is bound to issue (other
than to another Central and Southern Company) additional shares of its capital
stock. There are no Contracts relating to the rights of any Central and Southern
Company to vote or to dispose of any shares of the capital stock of any Central
and Southern Subsidiary. All of the shares of capital stock of each Central and
Southern Subsidiary held by a Central and Southern Company are fully paid and
nonassessable under the applicable Law of the jurisdiction in which such
Subsidiary is incorporated or organized and are owned by the Central and
Southern Company free and clear of any Lien. Each Central and Southern
Subsidiary is either a bank, a savings association or a corporation and is duly
organized, validly existing, and (as to corporations) in good standing under the
Laws of the jurisdiction in which it is organized and has the corporate power
and authority necessary for it to own, lease and operate its Assets and to carry
on its business as now conducted. Each Central and Southern Subsidiary is duly
qualified or licensed to transact business as a foreign corporation in good
standing in the States of the United States and foreign jurisdictions where the
character of its Assets or the nature or conduct of its business requires it to
be so qualified or licensed, except for such jurisdictions in which the failure
to be so qualified or licensed is not reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on Central and Southern. Each
Central and Southern Subsidiary that is a depository institution is an "insured
institution" as defined in the Federal Deposit Insurance Act and applicable
regulations thereunder, and the deposits in which are insured by the Bank
Insurance Fund or the Savings Association Insurance Fund, as appropriate.
5.5 FINANCIAL STATEMENTS. Central and Southern has included in
--------------------
Section 5.5 of the Central and Southern Disclosure Memorandum copies of all
---------------------
Central and Southern Financial Statements for periods ended prior to the date
hereof and will deliver to Premier copies of all Central and Southern Financial
Statements prepared subsequent to the date hereof. The Central and Southern
Financial Statements (as of the dates thereof and for the periods covered
thereby) (a) are, or if dated after the date of this Agreement will be, in
accordance with the books and records of the Central and Southern Companies,
which are or will be, as the case may be, complete and correct and which have
been or will have been, as the case may be, maintained in accordance with good
business practices, and (b) present or will present, as the case may be, fairly
the consolidated financial position of the Central and Southern Companies as of
the dates indicated and the consolidated results of operations, changes in
shareholders' equity, and cash flows of Central and Southern Companies for the
periods indicated, in accordance with GAAP (subject to any exceptions as to
consistency specified therein or as may be indicated in the notes thereto or, in
the case of interim financial statements, to normal recurring year-end
adjustments that are not material in amount or effect).
5.6 ABSENCE OF UNDISCLOSED LIABILITIES. No Central and Southern
----------------------------------
Company has any Liabilities that are reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on Central and Southern except
Liabilities which are accrued or reserved against in the consolidated balance
sheets of Central and Southern as of December 30, 1995 and September 30, 1996,
included in Central and Southern Financial Statements or reflected in the notes
thereto. No Central and Southern Company has incurred or paid any Liability
since September 30, 1996, except for such Liabilities incurred or paid in the
ordinary course of business consistent with past business
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practice and which are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Central and Southern.
5.7 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since September 30, 1996,
------------------------------------
except as disclosed in SEC Documents filed by Central and Southern prior to the
date of this Agreement, and except as disclosed in Section 5.7 of the Central
and Southern Disclosure Memorandum, (a) there have been no events, changes or
---------------------
occurrences which have had, or are reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Central and Southern, and (b) the
Central and Southern Companies have not taken any action, or failed to take any
action, prior to the date of this Agreement, which action or failure, if taken
after the date of this Agreement, would represent or result in a material breach
or violation of any of the covenants and agreements of Central and Southern
provided in Article 7 of this Agreement.
5.8 TAX MATTERS.
-----------
(a) All Tax returns required to be filed by or on behalf of any of the
Central and Southern Companies have been timely filed or requests for extensions
have been timely filed, granted, and have not expired for periods ended on or
before September 30, 1996, and 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
Material Adverse Effect on Central and Southern and all returns filed are
complete and accurate to the Knowledge of Central and Southern. All Taxes shown
on filed returns have been paid. As of the date of this Agreement, there is no
audit examination, deficiency or refund Litigation with respect to any Taxes
that is reasonably likely to result in a determination that would have,
individually or in the aggregate, a Material Adverse Effect on Central and
Southern, except as reserved against in the Central and Southern Financial
Statements delivered prior to the date of this Agreement or as disclosed in
Section 5.8(a) of the Central and Southern Disclosure Memorandum. All Taxes and
---------------------
other Liabilities due with respect to completed and settled examinations or
concluded Litigation have been paid.
(b) Except as disclosed in Section 5.8(b) of the Central and Southern
Disclosure Memorandum, none of the Central and Southern Companies has executed
---------------------
an extension or waiver of any statute of limitations on the assessment or
collection of any Tax due that is currently in effect, and no unpaid tax
deficiency has been asserted in writing against or with respect to any Central
and Southern Company, which deficiency is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Central and
Southern.
(c) Adequate provision for any Taxes due or to become due for any of
the Central and Southern Companies for the period or periods through and
including the date of the respective Central and Southern Financial Statements
has been made and is reflected on such Central and Southern Financial
Statements.
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(d) Deferred Taxes of the Central and Southern Companies have been
provided for in accordance with GAAP.
(e) Each of the Central and Southern Companies is in compliance with,
and its records contain all information and documents (including, without
limitation, properly completed IRS Forms W-9) necessary to comply with, all
applicable information reporting and Tax withholding requirements under federal,
state and local Tax Laws, and such records identify with specificity all
accounts subject to backup withholding under Section 3406 of the Internal
Revenue Code, except for such instances of noncompliance and such omissions as
are not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Central and Southern.
5.9 ALLOWANCE FOR POSSIBLE LOAN LOSSES. The allowance for possible
----------------------------------
loan or credit losses (the "Allowance") shown on the consolidated balance sheets
of Central and Southern included in the most recent Central and Southern
Financial Statements dated prior to the date of this Agreement was, and the
Allowance shown on the consolidated balance sheets of Central and Southern
included in the Central and Southern Financial Statements as of dates subsequent
to the execution of this Agreement will be, as of the dates thereof, adequate
(within the meaning of GAAP and applicable regulatory requirements or
guidelines) to provide for losses relating to or inherent in the loan and lease
portfolios (including accrued interest receivables) of the Central and Southern
Companies and other extensions of credit (including letters of credit and
commitments to make loans or extend credit) by the Central and Southern
Companies as of the dates thereof except where the failure of such Allowance to
be so adequate is not reasonably likely to have a Material Adverse Effect on
Central and Southern.
5.10 ASSETS. Except as disclosed in Section 5.10 of the Central and
------
Southern Disclosure Memorandum or as disclosed or reserved against in the
---------------------
Central and Southern Financial Statements, the Central and Southern Companies
have good and marketable title, free and clear of all Liens, to all of their
respective Assets. All material tangible properties used in the businesses of
the Central and Southern Companies are in good condition, reasonable wear and
tear excepted, and are usable in the ordinary course of business consistent with
Central and Southern's past practices. All Assets which are material to Central
and Southern's business on a consolidated basis, held under leases or subleases
by any of the Central and Southern Companies, are held under valid Contracts
enforceable in accordance with their respective terms (except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other Laws affecting the enforcement of creditors' rights generally and
except that the availability of the equitable remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceedings may be brought), and each such Contract is in full force and effect.
The policies of fire, theft, liability and other insurance maintained with
respect to the Assets or businesses of the Central and Southern Companies
provide adequate coverage under current industry practices against loss or
Liability, and the fidelity and blanket bonds in effect as to which any of the
Central and Southern Companies is a named insured are reasonably sufficient.
The Assets of the Central and Southern Companies include all assets required to
operate the business of the Central and Southern Companies as presently
conducted.
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5.11 ENVIRONMENTAL MATTERS.
---------------------
(a) Except as disclosed in Section 5.11(a) of the Central and Southern
Disclosure Memorandum, to the Knowledge of Central and Southern, each Central
---------------------
and Southern Company, its Participation Facilities and its Loan Properties are,
and have been, in compliance with all Environmental Laws, except for
noncompliance which is not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Central and Southern.
(b) To the Knowledge of Central and Southern, there is no Litigation
pending or threatened before any court, governmental agency or authority or
other forum in which any Central and Southern Company or any of its Loan
Properties or Participation Facilities has been or, with respect to threatened
Litigation, may be named as a defendant or potentially responsible party (i) for
alleged noncompliance with any Environmental Law or (ii) relating to the Release
into the Environment of any Hazardous Material (as defined below), whether or
not occurring at, on, under or involving a site owned, leased or operated by any
Central and Southern Company or any of its Loan Properties or Participation
Facilities, except for such Litigation pending or threatened the resolution of
which is not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Central and Southern or to the Knowledge of Central
and Southern, there is no reasonable basis for any such Litigation.
(c) To the Knowledge of Central and Southern, there have been no
releases of Hazardous Material in, on, under or affecting any Participation
Facility or Loan Property, except such as are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Central and
Southern.
5.12 COMPLIANCE WITH LAWS. Central and Southern is duly registered
--------------------
as a bank holding company and as a thrift holding company under the BHC Act and
HOLA, respectively. Each Central and Southern Company has in effect all Permits
necessary for it to own, lease or operate its Assets and to carry on its
business as now conducted, except for those Permits the absence of which are not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on Central and Southern, and there has occurred no Default under any such
Permit, other than Defaults which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Central and
Southern. Except as disclosed in Section 5.12 of the Central and Southern
Disclosure Memorandum, no Central and Southern Company:
---------------------
(a) is in violation of any Laws, Orders or Permits applicable to its
business or employees conducting its business, except for violations which are
not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Central and Southern; and
(b) has received any notification or communication from any agency or
department of federal, state, or local government or any Regulatory Authority or
the staff thereof (i) asserting that any Central and Southern Company is not in
compliance with any of the Laws or
A-16
Orders which such governmental authority or Regulatory Authority enforces, where
such noncompliance is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Central and Southern, (ii) threatening
to revoke any Permits, the revocation of which is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Central and
Southern, or (iii) requiring any Central and Southern Company to enter into or
consent to the issuance of a cease and desist order, formal agreement,
directive, commitment or memorandum of understanding, or to adopt any Board
resolution or similar undertaking, which restricts materially the conduct of its
business, or in any manner relates to its capital adequacy, its credit or
reserve policies, its management, or the payment of dividends.
5.13 LABOR RELATIONS. No Central and Southern Company is the
---------------
subject of any Litigation asserting that it or any other Central and Southern
Company has committed an unfair labor practice (within the meaning of the
National Labor Relations Act or comparable state law) or seeking to compel it or
any other Central and Southern Company to bargain with any labor organization as
to wages or conditions of employment, nor is there any strike or other labor
dispute involving any Central and Southern Company, pending or, to its
Knowledge, threatened, nor, to its Knowledge, is there any activity involving
any Central and Southern Company's employees seeking to certify a collective
bargaining unit or engaging in any other organization activity.
5.14 EMPLOYEE BENEFIT PLANS.
----------------------
(a) Central and Southern has disclosed in Section 5.14 of the Central
and Southern Disclosure Memorandum and delivered or made available to Premier
---------------------
prior to the execution of this Agreement copies in each case of all pension,
retirement, profit-sharing, deferred compensation, stock option, employee stock
ownership, severance pay, vacation, bonus, or other incentive plans, all other
written employee programs, arrangements, or agreements, all medical, vision,
dental, or other health plans, all life insurance plans, and all other employee
benefit plans or fringe benefit plans, including, without limitation, "employee
benefit plans" as that term is defined in Section 3(3) of ERISA, currently
adopted, maintained by, sponsored in whole or in part by, or contributed to by
any Central and Southern Company or Affiliate thereof for the benefit of
employees, retirees, dependents, spouses, directors, independent contractors, or
other beneficiaries and under which employees, retirees, dependents, spouses,
directors, independent contractors, or other beneficiaries are eligible to
participate (collectively, the "Central and Southern Benefit Plans"). Any of
the Central and Southern 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 "Central and Southern ERISA Plan." Each Central and Southern ERISA Plan
which is also a "defined benefit plan" (as defined in Section 414(j) of the
Internal Revenue Code) is referred to herein as a "Central and Southern Pension
Plan." No Central and Southern Pension Plan is or has been a multi-employer
plan within the meaning of Section 3(37) of ERISA.
(b) All Central and Southern Benefit Plans are in compliance with the
applicable terms of ERISA, the Internal Revenue Code, and any other applicable
Laws the breach or violation of which are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect
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on Central and Southern. Each Central and Southern 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 Central
and Southern is not aware of any circumstances likely to result in revocation of
any such favorable determination letter. To the Knowledge of Central and
Southern, no Central and Southern Company nor any other party has engaged in a
transaction with respect to any Central and Southern Benefit Plan that, assuming
the taxable period of such transaction expired as of the date hereof, would
subject any Central and Southern Company to a tax or penalty imposed by either
Section 4975 of the Internal Revenue Code or Section 502(i) of ERISA in amounts
which are reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Central and Southern.
(c) Central and Southern maintains an "employee pension benefit plan,"
within the meaning of Section 3(2) of ERISA that is or was subject to Title IV
of ERISA.
(d) Neither Central and Southern nor any ERISA Affiliate of Central
and Southern has any past, present or future obligation or liability to
contribute to any multi-employer plan, as defined in Section 3(37) of ERISA.
(e) Except as disclosed in Section 5.14(e) of the Central and Southern
Disclosure Memorandum, (i) no Central and Southern Company has any obligations
---------------------
for retiree health and life benefits under any of the Central and Southern
Benefit Plans, except as required by Section 6.01 of ERISA and Section 4980B of
the Code; (ii) there are no restrictions on the rights of any Central and
Southern Company to amend or terminate any such Plan; and (iii) any amendment or
termination of any such Plan will not cause any Central and Southern Company to
incur any Liability that is reasonably likely to have a Material Adverse Effect
on Central and Southern.
(f) Except as disclosed in Section 5.14(f) of the Central and Southern
Disclosure Memorandum, neither the execution and delivery of this Agreement nor
---------------------
the consummation of the transactions contemplated hereby will (i) result in any
payment (including, without limitation, severance, unemployment compensation,
golden parachute or otherwise) becoming due to any director or any employee of
any Central and Southern Company from any Central and Southern Company under any
Central and Southern Benefit Plan or otherwise, (ii) increase any benefits
otherwise payable under any Central and Southern Benefit Plan, or (iii) result
in any acceleration of the time of payment or vesting of any such benefit.
(g) The actuarial present values of all accrued deferred compensation
entitlements (including, without limitation, entitlements under any executive
compensation, supplemental retirement, or employment agreement) of employees and
former employees of any Central and Southern Company and their respective
beneficiaries have been fully reflected on the Central and Southern Financial
Statements to the extent required by and in accordance with GAAP.
A-18
(h) Central and Southern and each ERISA Affiliate of Central and
Southern has complied with the continuation of coverage requirements of Section
1001 of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended,
and ERISA Sections 601 through 608.
(i) Neither Central and Southern nor any ERISA Affiliate of Central
and Southern is obligated, contingently or otherwise, under any agreement to pay
any amount which would be treated as a "parachute payment," as defined in
Section 280G(b) of the Internal Revenue Code (determined without regard to
Section 280G(b)(2)(A)(ii) of the Internal Revenue Code).
(j) Other than routine claims for benefits, there are no actions,
audits, investigations, suits or claims pending, or threatened against any
Central and Southern Benefit Plan, any trust or other funding agency created
thereunder, or against any fiduciary of any Central and Southern Benefit Plan or
against the assets of any Central and Southern Benefit Plan.
5.15 MATERIAL CONTRACTS. Except as disclosed in Section 5.15 of the
------------------
Central and Southern Disclosure Memorandum or otherwise reflected in the Central
---------------------
and Southern Financial Statements, none of the Central and Southern Companies,
nor any of their respective Assets, businesses or operations, is a party to, or
is bound or affected by, or receives benefits under, (a) any employment,
severance, termination, consulting or retirement Contract providing for
aggregate payments to any Person in any calendar year in excess of $10,000,
excluding "at will" employment arrangements, (b) any Contract relating to the
borrowing of money by any Central and Southern Company or the guarantee by any
Central and Southern Company of any such obligation (other than Contracts
evidencing deposit liabilities, purchases of federal funds, Federal Home Loan
Bank advances, fully-secured repurchase agreements, trade payables, and
Contracts relating to borrowings or guarantees made in the ordinary course of
business), (c) any Contracts between or among Central and Southern Companies,
and (d) any other Contract (excluding this Agreement) or amendment thereto that
is required to be filed as an exhibit to a Form 10-KSB or Form 10-QSB filed by
Central and Southern with the SEC as of the date of this Agreement that has not
been filed as an exhibit to any Central and Southern Form 10-KSB or 10-QSB filed
with the SEC (together with all Contracts referred to in Sections 5.10 and
5.14(a) of this Agreement, the "Central and Southern Contracts"). None of the
Central and Southern Companies is in Default under any Central and Southern
Contract, other than Defaults which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Central and
Southern. All of the indebtedness of any Central and Southern Company for money
borrowed is prepayable at any time by such Central and Southern Company without
penalty or premium.
5.16 LEGAL PROCEEDINGS. Except as disclosed in Section 5.16 of the
-----------------
Central and Southern Disclosure Memorandum, there is no Litigation instituted or
---------------------
pending, or, to the Knowledge of Central and Southern, 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 Central and
Southern Company, or against any Asset, interest, or right of any of them, that
is reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Central and Southern, nor are there any Orders of any
Regulatory Authorities, other governmental authorities, or arbitrators
A-19
outstanding against any Central and Southern Company, that are reasonably likely
to have, individually or in the aggregate, a Material Adverse Effect on Central
and Southern.
5.17 REPORTS. Since January 1, 1996, each Central and Southern
-------
Company has timely filed all reports and statements, together with any
amendments required to be made with respect thereto, that it was required to
file with (a) the SEC, including, but not limited to, Forms 10-KSB,
Forms 10-QSB, Forms 8-KSB, and Proxy Statements, (b) other Regulatory
Authorities, and (c) any applicable state securities or banking authorities
(except, in the case of state securities authorities, failures to file which are
not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Central and Southern). As of their respective dates, each of
such reports and documents, including the financial statements, exhibits, and
schedules thereto, complied in all material respects with all applicable Laws.
As of its respective date, each such report and document to Central and
Southern's Knowledge did not, in any material respects, contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
5.18 STATEMENTS TRUE AND CORRECT. No statement, certificate,
---------------------------
instrument or other writing furnished or to be furnished by any Central and
Southern Company or any Affiliate thereof to Premier pursuant to this Agreement
or any other document, agreement or instrument referred to herein contains or
will contain any untrue statement of material fact or will omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. None of the
information supplied or to be supplied by any Central and Southern Company or
any Affiliate thereof for inclusion in the Registration Statement to be filed by
Premier with the SEC will, when the Registration Statement becomes effective, be
false or misleading with respect to any material fact, or omit to state any
material fact necessary to make the statements therein not misleading. None of
the information supplied or to be supplied by any Central and Southern Company
or any Affiliate thereof for inclusion in the Proxy Statement to be mailed to
Central and Southern's shareholders in connection with the Central and Southern
Shareholders' Meeting, and any other documents to be filed by a Central and
Southern Company or any Affiliate thereof with the SEC or any other Regulatory
Authority in connection with the transactions contemplated hereby, will, at the
respective time such documents are filed, and with respect to the Proxy
Statement, when first mailed to the shareholders of Central and Southern, 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 Central and Southern 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 Central and Southern Shareholders' Meeting.
All documents that any Central and Southern Company or any Affiliate thereof is
responsible for filing with any Regulatory Authority in connection with the
transactions contemplated hereby will comply as to form in all material respects
with the provisions of applicable Law.
A-20
5.19 ACCOUNTING, TAX AND REGULATORY MATTERS. No Central and
--------------------------------------
Southern Company or any Affiliate thereof has taken any action, or agreed to
take any action, or has any Knowledge of any fact or circumstance that is
reasonably likely to (a) prevent the transactions contemplated hereby, including
the Merger, from qualifying for pooling-of-interests accounting treatment or
treatment as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code, or (b) materially impede or delay receipt of any Consents
of Regulatory Authorities referred to in Section 9.1(b) of this Agreement or
result in the imposition of a condition or restriction of the type referred to
in the second sentence of such Section. To the Knowledge of Central and
Southern, there exists no fact, circumstance, or reason why the requisite
Consents referred to in Section 9.1(b) of this Agreement cannot be received in a
timely manner without the imposition of any condition or restriction of the type
described in the second sentence of such Section 9.1(b).
5.20 CHARTER PROVISIONS. Each Central and Southern Company has
------------------
taken all action so that the entering into of this Agreement and the
consummation of the Merger and the other transactions contemplated by this
Agreement do not and will not result in the grant of any rights to any Person
under the Articles of Incorporation, Bylaws or other governing instruments of
any Central and Southern Company or restrict or impair the ability of the
Surviving Corporation to vote, or otherwise to exercise the rights of a
shareholder with respect to, shares of any Central and Southern Company that may
be acquired or controlled by it.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF PREMIER
-----------------------------------------
Premier hereby represents and warrants to Central and Southern as
follows:
6.1 ORGANIZATION, STANDING, AND POWER. Premier is a corporation
---------------------------------
duly organized, validly existing, and in good standing under the Laws of the
State of Georgia, and is duly registered as a bank holding company under the BHC
Act. Premier has the corporate power and authority to carry on its business as
now conducted and to own, lease and operate its Assets. Premier is duly
qualified or licensed to transact business as a foreign corporation in good
standing in the States of the United States and foreign jurisdictions where the
character of its Assets or the nature or conduct of its business requires it to
be so qualified or licensed, except for such jurisdictions in which the failure
to be so qualified or licensed is not reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on Premier.
6.2 AUTHORITY; NO BREACH BY AGREEMENT.
---------------------------------
(a) Premier has the corporate power and authority necessary to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein, including the Merger, have been duly and validly authorized
by
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all necessary corporate action in respect thereof on the part of Premier,
subject to the approval of this Agreement by the holders of a majority of the
outstanding Premier Common Stock, which is the only shareholder vote required
for approval of this Agreement and consummation of the Merger by Premier.
Subject to such requisite shareholder approval, this Agreement represents a
legal, valid and binding obligation of Premier, enforceable against Premier in
accordance with its terms (except in all cases as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar Laws affecting the enforcement of creditors' rights generally and except
that the availability of the equitable remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceeding may be brought).
(b) Neither the execution and delivery of this Agreement by Premier,
nor the consummation by Premier of the transactions contemplated hereby, nor
compliance by Premier with any of the provisions hereof will (i) conflict with
or result in a breach of any provision of Premier's Articles of Incorporation or
Bylaws, or (ii) constitute or result in a Default under, or require any Consent
pursuant to, or result in the creation of any Lien on any Asset of any Premier
Company under, any Contract or Permit of any Premier Company, where such Default
or Lien, or any failure to obtain such Consent, is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Premier, or (iii)
subject to receipt of the requisite approvals referred to in Section 9.1(b) of
this Agreement, violate any Law or Order applicable to any Premier Company or
any of their respective Assets.
(c) Other than in connection or compliance with the provisions of the
Securities Laws, applicable state corporate and securities Laws, and rules of
the NASD, and other than Consents required from Regulatory Authorities, and
other than notices to or filings with the Internal Revenue Service or the
Pension Benefit Guaranty Corporation with respect to any employee benefit plans,
and other than Consents, filings or notifications which, if not obtained or
made, are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Premier, no notice to, filing with, or Consent of any
public body or authority is necessary for the consummation by Premier of the
Merger and the other transactions contemplated in this Agreement.
6.3 CAPITAL STOCK.
-------------
(a) The authorized capital stock of Premier consists of 20,000,000
shares of Premier Common Stock, of which 2,353,779 shares were issued and
outstanding as of the date of this Agreement and not more than 2,353,779 shares
will be issued and outstanding at the Effective Time (as a result of the
exercise of outstanding options). All of the issued and outstanding shares of
Premier Common Stock are, and all of the shares of Surviving Corporation Common
Stock to be issued in exchange for shares of Central and Southern Common Stock
upon consummation of the Merger, when issued in accordance with the terms of
this Agreement, will be, duly and validly issued and outstanding and fully paid
and nonassessable under the GBCC. None of the outstanding shares of Premier
Common Stock has been, and none of the shares of Surviving Corporation Common
Stock to be issued in exchange for shares of Central and Southern Common Stock
upon consummation of the Merger will be, issued in violation of any preemptive
rights of the current or
A-22
past shareholders of Premier. Premier has reserved 210,000 shares of Premier
Common Stock for issuance under the Premier Stock Plans, pursuant to which
options to purchase not more than 136,250 shares of Premier Common Stock are
outstanding as of the date of this Agreement and at the Effective Time.
(b) Except as set forth in Section 6.3(a) of this Agreement, or as
disclosed in Section 6.3(b) of the Premier Disclosure Memorandum, there are no
---------------------
shares of capital stock or other equity securities of Premier outstanding and no
outstanding Rights relating to the capital stock of Premier.
6.4 PREMIER SUBSIDIARIES. Premier has disclosed in Section 6.4 of
--------------------
the Premier Disclosure Memorandum all of the Premier Subsidiaries as of the date
---------------------
of this Agreement. Except as disclosed in Section 6.4 of the Premier Disclosure
----------
Memorandum, Premier or one of its Subsidiaries owns all of the issued and
----------
outstanding shares of capital stock of each Premier Subsidiary. No equity
securities of any Premier Subsidiary are or may become required to be issued
(other than to another Premier Company) by reason of any Rights, and there are
no Contracts by which any Premier Subsidiary is bound to issue (other than to
another Premier Company) additional shares of its capital stock or Rights, or by
which any Premier Company is or may be bound to transfer any shares of the
capital stock of any Premier Subsidiary (other than to another Premier Company),
and there are no Contracts by which any Premier Company is bound to issue (other
than to another Premier Company) additional shares of its capital stock. There
are no Contracts relating to the rights of any Premier Company to vote or to
dispose of any shares of the capital stock of any Premier Subsidiary. All of the
shares of capital stock of each Premier Subsidiary held by a Premier Company are
fully paid and nonassessable under the applicable Law of the jurisdiction in
which such Subsidiary is incorporated or organized and are owned by the Premier
Company free and clear of any Lien. Each Premier Subsidiary is either a bank, a
savings association or a corporation and is duly organized, validly existing,
and (as to corporations) in good standing under the Laws of the jurisdiction in
which it is organized and has the corporate power and authority necessary for it
to own, lease and operate its Assets and to carry on its business as now
conducted. Each Premier Subsidiary is duly qualified or licensed to transact
business as a foreign corporation in good standing in the States of the United
States and foreign jurisdictions where the character of its Assets or the nature
or conduct of its business requires it to be so qualified or licensed, except
for such jurisdictions in which the failure to be so qualified or licensed is
not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Premier. Each Premier Subsidiary that is a depository
institution is an "insured institution" as defined in the Federal Deposit
Insurance Act and applicable regulations thereunder, and the deposits in which
are insured by the Bank Insurance Fund or the Savings Association Insurance
Fund, as appropriate.
6.5 FINANCIAL STATEMENTS. Premier has included in Section 6.5 of
--------------------
the Premier Disclosure Memorandum copies of all Premier Financial Statements for
periods ended prior to the date hereof and will deliver to Central and Southern
copies of all Premier Financial Statements prepared subsequent to the date
hereof. The Premier Financial Statements (as of the dates thereof and for the
periods covered thereby) (a) are, or if dated after the date of this Agreement
will be, in accordance
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with the books and records of the Premier Companies, which are or will be, as
the case may be, complete and correct and which have been or will have been, as
the case may be, maintained in accordance with good business practices, and (b)
present or will present, as the case may be, fairly the consolidated financial
position of the Premier Companies as of the dates indicated and the consolidated
results of operations, changes in shareholders' equity, and cash flows of the
Premier Companies for the periods indicated, in accordance with GAAP (subject to
exceptions as to consistency specified therein or as may be indicated in the
notes thereto or, in the case of interim financial statements, to normal
recurring year-end adjustments that are not material in amount or effect).
6.6 ABSENCE OF UNDISCLOSED LIABILITIES. No Premier Company has any
----------------------------------
Liabilities that are reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Premier, except Liabilities which are
accrued or reserved against in the consolidated balance sheets of Premier as of
December 31, 1995 and September 30, 1996, included in the Premier Financial
Statements or reflected in the notes thereto. No Premier Company has incurred
or paid any Liability since September 30, 1996, except for such Liabilities
incurred or paid in the ordinary course of business consistent with past
business practice and which are not reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on Premier.
6.7 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since September 30, 1996,
------------------------------------
except as disclosed in SEC Documents filed by Premier prior to the date of this
Agreement and except as disclosed in Section 6.7 of the Premier Disclosure
----------
Memorandum, (a) there have been no events, changes or occurrences which have
----------
had, or are reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Premier, and (b) the Premier Companies have not taken
any action, or failed to take any action, prior to the date of this Agreement,
which action or failure, if taken after the date of this Agreement, would
represent or result in a material breach or violation of any of the covenants
and agreements of Premier provided in Article 7 of this Agreement.
6.8 TAX MATTERS.
-----------
(a) All Tax returns required to be filed by or on behalf of any of the
Premier Companies have been timely filed or requests for extensions have been
timely filed, granted, and have not expired for periods ended on or before
September 30, 1996, and 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 Material
Adverse Effect on Premier, and all returns filed are complete and accurate to
the Knowledge of Premier. All Taxes shown on filed returns have been paid. As
of the date of this Agreement, there is no audit examination, deficiency or
refund Litigation with respect to any Taxes that is reasonably likely to result
in a determination that would have, individually or in the aggregate, a Material
Adverse Effect on Premier, except as reserved against in the Premier Financial
Statements delivered prior to the date of this Agreement or as disclosed in
Section 6.8(a) of the Premier Disclosure Memorandum. All Taxes and other
---------------------
Liabilities due with respect to completed and settled examinations or concluded
Litigation have been paid.
A-24
(b) Except as disclosed in Section 6.8(b) of the Premier Disclosure
----------
Memorandum none of the Premier Companies has executed an extension or waiver of
----------
any statute of limitations on the assessment or collection of any Tax due that
is currently in effect, and no unpaid tax deficiency has been asserted in
writing against or with respect to any Premier Company, which deficiency is
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on Premier.
(c) Adequate provision for any Taxes due or to become due for any of
the Premier Companies for the period or periods through and including the date
of the respective Premier Financial Statements has been made and is reflected on
such Premier Financial Statements.
(d) Deferred Taxes of the Premier Companies have been provided for in
accordance with GAAP.
(e) Each of the Premier Companies is in compliance with, and its
records contain all information and documents (including, without limitation,
properly completed IRS Forms W-9) necessary to comply with, all applicable
information reporting and Tax withholding requirements under federal, state and
local Tax Laws, and such records identify with specificity all accounts subject
to backup withholding under Section 3406 of the Internal Revenue Code, except
for such instances of noncompliance and such omissions as are not reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Premier.
6.9 ALLOWANCE FOR POSSIBLE LOAN LOSSES. The Allowance shown on the
----------------------------------
consolidated balance sheets of Premier included in the most recent Premier
Financial Statements dated prior to the date of this Agreement was, and the
Allowance shown on the consolidated balance sheets of Premier included in the
Premier Financial Statements as of dates subsequent to the execution of this
Agreement will be, as of the dates thereof, adequate (within the meaning of GAAP
and applicable regulatory requirements or guidelines) to provide for losses
relating to or inherent in the loan and lease portfolios (including accrued
interest receivables) of the Premier Companies and other extensions of credit
(including letters of credit and commitments to make loans or extend credit) by
the Premier Companies as of the dates thereof except where the failure of such
Allowance to be so adequate is not reasonably likely to have a Material Adverse
Effect on Premier.
6.10 ASSETS. Except as disclosed in Section 6.10 of the Premier
------
Disclosure Memorandum or as disclosed or reserved against in the Premier
---------------------
Financial Statements, the Premier Companies have good and marketable title, free
and clear of all Liens, to all of their respective Assets. All material
tangible properties used in the businesses of the Premier Companies are in good
condition, reasonable wear and tear excepted, and are usable in the ordinary
course of business consistent with Premier's past practices. All Assets which
are material to Premier's business on a consolidated basis, held under leases or
subleases by any of the Premier Companies, are held under valid Contracts
enforceable in accordance with their respective terms (except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other Laws affecting the enforcement of creditors' rights generally and
except that the availability of the equitable remedy
A-25
of specific performance or injunctive relief is subject to the discretion of the
court before which any proceedings may be brought), and each such Contract is in
full force and effect. The policies of fire, theft, liability and other
insurance maintained with respect to the Assets or businesses of the Premier
Companies provide adequate coverage under current industry practices against
loss or Liability, and the fidelity and blanket bonds in effect as to which any
of the Premier Companies is a named insured are reasonably sufficient. The
Assets of the Premier Companies include all assets required to operate the
business of the Premier Companies as presently conducted.
6.11 ENVIRONMENTAL MATTERS.
---------------------
(a) Except as disclosed in Section 6.11(a) of the Premier Disclosure
----------
Memorandum, to the Knowledge of Premier, each Premier Company, its Participation
----------
Facilities and its Loan Properties are, and have been, in compliance with all
Environmental Laws, except for noncompliance which is not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on Premier.
(b) To the Knowledge of Premier, there is no Litigation pending or
threatened before any court, governmental agency or authority or other forum in
which any Premier Company or any of its Loan Properties or Participation
Facilities has been or, with respect to threatened Litigation, may be named as a
defendant or potentially responsible party (i) for alleged noncompliance with
any Environmental Law or (ii) relating to the Release into the Environment of
any Hazardous Material (as defined below), whether or not occurring at, on,
under or involving a site owned, leased or operated by any Premier Company or
any of its Loan Properties or Participation Facilities, except for such
Litigation pending or threatened the resolution of which is not reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Premier or to the Knowledge of Premier, there is no reasonable basis for any
such Litigation.
(c) To the Knowledge of Premier, there have been no releases of
Hazardous Material in, on, under or affecting any Participation Facility or Loan
Property, except such as are not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Premier.
6.12 COMPLIANCE WITH LAWS. Premier is duly registered as a bank
--------------------
holding and thrift holding company under the BHC Act and HOLA, respectively.
Each Premier Company has in effect all Permits necessary for it to own, lease or
operate its Assets and to carry on its business as now conducted, except for
those Permits the absence of which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Premier, and
there has occurred no Default under any such Permit, other than Defaults which
are not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Premier. Except as disclosed in Section 6.12 of the Premier
Disclosure Memorandum, no Premier Company:
---------------------
(a) is in violation of any Laws, Orders or Permits applicable to its
business or employees conducting its business, except for violations which are
not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Premier; and
A-26
(b) has received any notification or communication from any agency or
department of federal, state, or local government or any Regulatory Authority or
the staff thereof (i) asserting that any Premier Company is not in compliance
with any of the Laws or Orders which such governmental authority or Regulatory
Authority enforces, where such noncompliance is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Premier, (ii)
threatening to revoke any Permits, the revocation of which is reasonably likely
to have, individually or in the aggregate, a Material Adverse Effect on Premier,
or (iii) requiring any Premier Company to enter into or consent to the issuance
of a cease and desist order, formal agreement, directive, commitment or
memorandum of understanding, or to adopt any Board resolution or similar
undertaking, which restricts materially the conduct of its business, or in any
manner relates to its capital adequacy, its credit or reserve policies, its
management, or the payment of dividends.
6.13 LABOR RELATIONS. No Premier Company is the subject of any
---------------
Litigation asserting that it or any other Premier Company has committed an
unfair labor practice (within the meaning of the National Labor Relations Act or
comparable state law) or seeking to compel it or any other Premier Company to
bargain with any labor organization as to wages or conditions of employment, nor
is there any strike or other labor dispute involving any Premier Company,
pending or, to its Knowledge, threatened, nor, to its Knowledge, is there any
activity involving any Premier Company's employees seeking to certify a
collective bargaining unit or engaging in any other organization activity.
6.14 EMPLOYEE BENEFIT PLANS.
----------------------
(a) Premier has disclosed in Section 6.14 of the Premier Disclosure
----------
Memorandum and delivered or made available to Central and Southern prior to the
----------
execution of this Agreement copies in each case of all pension, retirement,
profit-sharing, deferred compensation, stock option, employee stock ownership,
severance pay, vacation, bonus, or other incentive plans, all other written
employee programs, arrangements, or agreements, all medical, vision, dental, or
other health plans, all life insurance plans, and all other employee benefit
plans or fringe benefit plans, including, without limitation, "employee benefit
plans" as that term is defined in Section 3(3) of ERISA, currently adopted,
maintained by, sponsored in whole or in part by, or contributed to by any
Premier Company or Affiliate thereof for the benefit of employees, retirees,
dependents, spouses, directors, independent contractors, or other beneficiaries
and under which employees, retirees, dependents, spouses, directors, independent
contractors, or other beneficiaries are eligible to participate (collectively,
the "Premier Benefit Plans"). Any of the Premier Benefit Plans which is an
"employee pension benefit plan," as that term is defined in Section 3(2) of
ERISA, is referred to herein as a "Premier ERISA Plan." Each Premier ERISA Plan
which is also a "defined benefit plan" (as defined in Section 414(j) of the
Internal Revenue Code) is referred to herein as a "Premier Pension Plan." No
Premier Pension Plan is or has been a multi-employer plan within the meaning of
Section 3(37) of ERISA.
A-27
(b) All Premier Benefit Plans are in compliance with the applicable
terms of ERISA, the Internal Revenue Code, and any other applicable Laws the
breach or violation of which are reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Premier. Each Premier ERISA Plan
which is intended to be qualified under Section 401(a) of the Internal Revenue
Code has received a favorable determination letter from the Internal Revenue
Service, and Premier is not aware of any circumstances likely to result in
revocation of any such favorable determination letter. To the Knowledge of
Premier, no Premier Company nor any other party has engaged in a transaction
with respect to any Premier Benefit Plan that, assuming the taxable period of
such transaction expired as of the date hereof, would subject any Premier
Company to a tax or penalty imposed by either Section 4975 of the Internal
Revenue Code or Section 502(i) of ERISA in amounts which are reasonably likely
to have, individually or in the aggregate, a Material Adverse Effect on Premier.
(c) Neither Premier nor any ERISA Affiliate of Premier maintains or
has maintained an "employee pension benefit plan," within the meaning of Section
3(2) of ERISA that is or was subject to Title IV of ERISA.
(d) Neither Premier nor any ERISA Affiliate of Premier has any past,
present or future obligation or liability to contribute to any multi-employer
plan, as defined in Section 3(37) of ERISA.
(e) Except as disclosed in Section 6.14(e) of the Premier Disclosure
----------
Memorandum, (i) no Premier Company has any obligations for retiree health and
----------
life benefits under any of the Premier Benefit Plans, except as required by
Section 6.01 of ERISA and Section 4980B of the Code; (ii) there are no
restrictions on the rights of any Premier Company to amend or terminate any such
Plan; and (iii) any amendment or termination of any such Plan will not cause any
Premier Company to incur any Liability that is reasonably likely to have a
Material Adverse Effect on Premier.
(f) Except as disclosed in Section 6.14(f) of the Premier Disclosure
----------
Memorandum, neither the execution and delivery of this Agreement nor the
----------
consummation of the transactions contemplated hereby will (i) result in any
payment (including, without limitation, severance, unemployment compensation,
golden parachute or otherwise) becoming due to any director or any employee of
any Premier Company from any Premier Company under any Premier Benefit Plan or
otherwise, (ii) increase any benefits otherwise payable under any Premier
Benefit Plan, or (iii) result in any acceleration of the time of payment or
vesting of any such benefit.
(g) The actuarial present values of all accrued deferred compensation
entitlements (including, without limitation, entitlements under any executive
compensation, supplemental retirement, or employment agreement) of employees and
former employees of any Premier Company and their respective beneficiaries have
been fully reflected on the Premier Financial Statements to the extent required
by and in accordance with GAAP.
A-28
(h) Premier and each ERISA Affiliate of Premier has complied with the
continuation of coverage requirements of Section 1001 of the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended, and ERISA Sections 601
through 608.
(i) Except as disclosed in Section 6.14(i) of the Premier Disclosure
----------
Memorandum, neither Premier nor any ERISA Affiliate of Premier is obligated,
----------
contingently or otherwise, under any agreement to pay any amount which would be
treated as a "parachute payment," as defined in Section 280G(b) of the Internal
Revenue Code (determined without regard to Section 280G(b)(2)(A)(ii) of the
Internal Revenue Code).
(j) Other than routine claims for benefits, there are no actions,
audits, investigations, suits or claims pending, or threatened against any
Premier Benefit Plan, any trust or other funding agency created thereunder, or
against any fiduciary of any Premier Benefit Plan or against the assets of any
Premier Benefit Plan.
6.15 MATERIAL CONTRACTS. Except as disclosed in Section 6.15 of the
------------------
Premier Disclosure Memorandum or otherwise reflected in the Premier Financial
---------------------
Statements, none of the Premier Companies, nor any of their respective Assets,
businesses or operations, is a party to, or is bound or affected by, or receives
benefits under, (a) any employment, severance, termination, consulting or
retirement Contract providing for aggregate payments to any Person in any
calendar year in excess of $10,000, excluding "at will" employment arrangements,
(b) any Contract relating to the borrowing of money by any Premier Company or
the guarantee by any Premier Company of any such obligation (other than
Contracts evidencing deposit liabilities, purchases of federal funds, Federal
Home Loan Bank advances, fully-secured repurchase agreements, trade payables,
and Contracts relating to borrowings or guarantees made in the ordinary course
of business), (c) any Contracts between or among Premier Companies, and (d) any
other Contract (excluding this Agreement) or amendment thereto that is required
to be filed as an exhibit to a Form 10-KSB or Form 10-QSB filed by Premier with
the SEC as of the date of this Agreement that has not been filed as an exhibit
to any Premier Form 10-KSB filed with the SEC (together with all Contracts
referred to in Sections 6.10 and 6.14(a) of this Agreement, the "Premier
Contracts"). None of the Premier Companies is in Default under any Premier
Contract, other than Defaults which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Premier. All of
the indebtedness of any Premier Company for money borrowed is prepayable at any
time by such Premier Company without penalty or premium.
6.16 LEGAL PROCEEDINGS. Except as disclosed in Section 6.16 of the
-----------------
Premier Disclosure Memorandum, there is no Litigation instituted or pending, or,
---------------------
to the Knowledge of Premier, threatened (or unasserted but considered probable
of assertion and which if asserted would have at least a reasonable probability
of an unfavorable outcome) against any Premier Company, or against any Asset,
interest, or right of any of them, that is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Premier, nor are
there any Orders of any Regulatory Authorities, other governmental authorities,
or arbitrators outstanding against any Premier Company,
A-29
that are reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Premier.
6.17 REPORTS. Since January 1, 1996, each Premier Company has
-------
timely filed all reports and statements, together with any amendments required
to be made with respect thereto, that it was required to file with (a) the SEC,
including, but not limited to, Forms 10-KSB, Forms 10-QSB, Forms 8-KSB, and
Proxy Statements, (b) other Regulatory Authorities, and (c) any applicable state
securities or banking authorities (except, in the case of state securities
authorities, failures to file which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Premier). As of
their respective dates, each of such reports and documents, including the
financial statements, exhibits, and schedules thereto, complied in all material
respects with all applicable Laws. As of its respective date, each such report
and document to Premier's Knowledge did not, in any material respects, contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements made therein,
in light of the circumstances under which they were made, not misleading.
6.18 STATEMENTS TRUE AND CORRECT. No statement, certificate,
---------------------------
instrument or other writing furnished or to be furnished by any Premier Company
or any Affiliate thereof to Central and Southern pursuant to this Agreement or
any other document, agreement or instrument referred to herein contains or will
contain any untrue statement of material fact or will omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. None of the information supplied or
to be supplied by any Premier Company or any Affiliate thereof for inclusion in
the Registration Statement to be filed by Premier with the SEC, will, when the
Registration Statement becomes effective, be false or misleading with respect to
any material fact, or omit to state any material fact necessary to make the
statements therein not misleading. None of the information supplied or to be
supplied by any Premier Company or any Affiliate thereof for inclusion in the
Proxy Statement to be mailed to Premier's shareholders in connection with the
Premier Shareholders' Meeting, and any other documents to be filed by any
Premier Company or any Affiliate thereof with the SEC or any other Regulatory
Authority in connection with the transactions contemplated hereby, will, at the
respective time such documents are filed, and with respect to the Proxy
Statement, when first mailed to the shareholders of Premier, be false or
misleading with respect to any material fact, or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, or, in the case of the Proxy Statement or
any amendment thereof or supplement thereto, at the time of the Premier
Shareholders' Meeting, be false or misleading with respect to any material fact,
or omit to state any material fact necessary to correct any statement in any
earlier communication with respect to the solicitation of any proxy for the
Premier Shareholders' Meeting. All documents that any Premier Company or any
Affiliate thereof is responsible for filing with any Regulatory Authority in
connection with the transactions contemplated hereby will comply as to form in
all material respects with the provisions of applicable Law.
6.19 ACCOUNTING, TAX AND REGULATORY MATTERS. No Premier Company or
--------------------------------------
any Affiliate thereof has taken any action, or agreed to take any action, or has
any Knowledge of any fact or
A-30
circumstance that is reasonably likely to (a) prevent the transactions
contemplated hereby, including the Merger, from qualifying for pooling-of-
interests accounting treatment or treatment as a reorganization within the
meaning of Section 368(a) of the Internal Revenue Code, or (b) materially impede
or delay receipt of any Consents of Regulatory Authorities referred to in
Section 9.1(b) of this Agreement. To the Knowledge of Premier, there exists no
fact, circumstance, or reason why the requisite Consents referred to in Section
9.1(b) of this Agreement cannot be received in a timely manner without the
imposition of any condition or restriction of the type described in the second
sentence of such Section 9.1(b).
6.20 CHARTER PROVISIONS. Each Premier Company has taken all action
------------------
so that the entering into of this Agreement and the consummation of the Merger
and the other transactions contemplated by this Agreement do not and will not
result in the grant of any rights to any Person under the Articles of
Incorporation, Bylaws or other governing instruments of any Premier Company or
restrict or impair the ability of the Surviving Corporation to vote, or
otherwise to exercise the rights of a shareholder with respect to, shares of any
Premier Company that may be acquired or controlled by it.
ARTICLE 7
CONDUCT OF BUSINESS PENDING CONSUMMATION
----------------------------------------
7.1 AFFIRMATIVE COVENANTS OF CENTRAL AND SOUTHERN. Unless the prior
---------------------------------------------
written consent of Premier shall have been obtained, and except as otherwise
contemplated herein or disclosed in the Central and Southern Disclosure
----------
Memorandum, Central and Southern shall, and shall cause each of its
----------
Subsidiaries, from the date of this Agreement until the Effective Time or
termination of this Agreement: (a) to operate its business in the usual, regular
and ordinary course; (b) to preserve intact its business organization and Assets
and maintain its rights and franchises; (c) to use its reasonable efforts to
cause its representations and warranties to be correct at all times; and (d) to
take no action which would (i) adversely affect the ability of any Party to
obtain any Consents required for the transactions contemplated hereby without
imposition of a condition or restriction of the type referred to in the last
sentence of Section 9.1(b) or 9.1(c) of this Agreement or (ii) adversely affect
in any material respect the ability of either Party to perform its covenants and
agreements under this Agreement.
7.2 NEGATIVE COVENANTS OF CENTRAL AND SOUTHERN. Except as disclosed
------------------------------------------
in the Central and Southern Disclosure Memorandum, from the date of this
---------------------
Agreement until the earlier of the Effective Time or the termination of this
Agreement, Central and Southern covenants and agrees that it will not do or
agree or commit to do, or permit any of its Subsidiaries to do or agree or
commit to do, any of the following without the prior written consent of the
chief executive officer of Premier, which consent shall not be unreasonably
withheld:
(a) amend the Articles of Incorporation, Bylaws or other governing
instruments of any Central and Southern Company, or
A-31
(b) incur any additional debt obligation or other obligation for
borrowed money (other than indebtedness of a Central and Southern Company to
another Central and Southern Company) in excess of an aggregate of $100,000 (for
the Central and Southern Companies on a consolidated basis) except in the
ordinary course of the business of Central and Southern Companies consistent
with past practices (which shall include, for any of its Subsidiaries, creation
of deposit liabilities, purchases of federal funds, advances from the Federal
Reserve Bank or Federal Home Loan Bank, and entry into repurchase agreements
fully secured by U.S. government or agency securities), or impose, or suffer the
imposition, on any Asset of any Central and Southern Company of any Lien or
permit any such Lien to exist (other than in connection with deposits,
repurchase agreements, bankers acceptances, Federal Home Loan Bank advances,
"treasury tax and loan" accounts established in the ordinary course of business,
the satisfaction of legal requirements in the exercise of trust powers, and
Liens in effect as of the date hereof that are disclosed in the Central and
Southern 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 Central and Southern Company, or declare or pay any
dividend or make any other distribution in respect of Central and Southern's
capital stock; provided, however, that Central and Southern may (to the extent
legally and contractually permitted to do so) pay an annual cash dividend of up
to $.27 per share on the shares of Central and Southern Common Stock in
quarterly installments during 1997; or
(d) except for this Agreement, or pursuant to the exercise of stock
options outstanding as of the date hereof and pursuant to the terms thereof in
existence on the date hereof, or as disclosed in Section 7.2(d) of the Central
and Southern Disclosure Memorandum, issue, sell, pledge, encumber, authorize the
---------------------
issuance of or enter into any Contract to issue, sell, pledge, encumber, or
authorize the issuance of or otherwise permit to become outstanding, any
additional shares of Central and Southern Common Stock or any other capital
stock of any Central and Southern Company, or any stock appreciation rights, or
any option, warrant, conversion, or other right to acquire any such stock, or
any security convertible into any such stock; or
(e) except as disclosed in Section 7.2(e) of the Central and Southern
Disclosure Memorandum, adjust, split, combine or reclassify any capital stock of
---------------------
any Central and Southern Company or issue or authorize the issuance of any other
securities in respect of or in substitution for shares of Central and Southern
Common Stock or sell, lease, mortgage or otherwise dispose of or otherwise
encumber (i) any shares of capital stock of any Central and Southern Subsidiary
(unless any such shares of stock are sold or otherwise transferred to another
Central and Southern Company) or (ii) any Asset having a book value in excess of
$50,000 other than in the ordinary course of business for reasonable and
adequate consideration; or
(f) except for purchases of U.S. Treasury securities or U.S.
Government agency securities or securities of like maturity or grade or general
obligations of states and municipalities, purchase any securities or make any
material investment, either by purchase of stock or securities,
A-32
contributions to capital, Asset transfers, or purchase of any Assets, in any
Person other than a wholly-owned Central and Southern Subsidiary; or otherwise
acquire direct or indirect control over any Person, other than in connection
with (i) foreclosures in the ordinary course of business, or (ii) acquisitions
of control by Central and Southern Bank in its fiduciary capacity; or
(g) grant any increase in compensation or benefits to any employees
whose annual salary exceeds $50,000 of any Central and Southern Company
(including such discretionary increases as may be contemplated by existing
employment agreements), except in accordance with past practice or previously
approved by the Board of Directors of Central and Southern, in each case as
disclosed in Section 7.2(g) of the Central and Southern Disclosure Memorandum or
---------------------
as required by Law; pay any severance or termination pay or any bonus other than
pursuant to written policies or written Contracts in effect on the date of this
Agreement and disclosed in Section 7.2(g) of the Central and Southern Disclosure
----------
Memorandum; enter into or amend any severance agreements with officers of any
----------
Central and Southern Company; grant any general increase in compensation to all
employees; grant any increase in fees or other increases in compensation or
other benefits to directors of any Central and Southern Company; or voluntarily
accelerate the vesting of any stock options or other stock-based compensation or
employee benefits; or
(h) enter into or amend any employment Contract between any Central
and Southern Company and any Person (unless such amendment is required by Law)
that the Central and Southern Company does not have the unconditional right to
terminate without Liability (other than Liability for services already
rendered), at any time on or after the Effective Time; or
(i) adopt any new employee benefit plan of any Central and Southern
Company or make any material change in or to any existing employee benefit
plans of any Central and Southern Company other than any such change that is
required by Law or that, in the opinion of counsel, is necessary or advisable to
maintain the tax qualified status of any such plan; or
(j) make any significant change in any Tax or accounting methods or
systems of internal accounting controls, except as may be appropriate to conform
to changes in Tax Laws or regulatory accounting requirements or GAAP; or
(k) commence any Litigation other than in accordance with past
practice, settle any Litigation involving any Liability of any Central and
Southern Company for money damages in excess of $50,000 or which imposes
material restrictions upon the operations of any Central and Southern Company;
or
(l) except in the ordinary course of business, modify, amend or
terminate any material Contract or waive, release, compromise or assign any
material rights or claims.
7.3 AFFIRMATIVE COVENANTS OF PREMIER. Unless the prior written
--------------------------------
consent of Central and Southern shall have been obtained, and except as
otherwise contemplated herein or as disclosed in the Premier Disclosure
----------
Memorandum, Premier shall, and shall cause each of its Subsidiaries, from
----------
A-33
the date of this Agreement until the Effective Time or termination of this
Agreement: (a) to operate its business in the usual, regular and ordinary
course; (b) to preserve intact its business organization and Assets and maintain
its rights and franchises; (c) to use its reasonable efforts to cause its
representations and warranties to be correct at all times; and (d) to take no
action which would (i) adversely affect the ability of any Party to obtain any
Consents required for the transactions contemplated hereby without imposition of
a condition or restriction of the type referred to in the last sentence of
Section 9.1(b) or 9.1(c) of this Agreement or (ii) adversely affect in any
material respect the ability of either Party to perform its covenants and
agreements under this Agreement.
7.4 NEGATIVE COVENANTS OF PREMIER. Except as disclosed in the
-----------------------------
Premier Disclosure Memorandum, from the date of this Agreement until the earlier
---------------------
of the Effective Time or the termination of this Agreement, Premier covenants
and agrees that it will not do or agree or commit to do, or permit any of its
Subsidiaries to do or agree or commit to do, any of the following without the
prior written consent of the chief executive officer of Central and Southern,
which consent shall not be unreasonably withheld:
(a) amend the Articles of Incorporation, Bylaws or other governing
instruments of any Premier Company, or
(b) incur any additional debt obligation or other obligation for
borrowed money (other than indebtedness of a Premier Company to another Premier
Company) in excess of an aggregate of $100,000 (for the Premier Companies on a
consolidated basis) except in the ordinary course of the business of Premier
Companies consistent with past practices (which shall include, for Premier Bank,
creation of deposit liabilities, purchases of federal funds, advances from the
Federal Reserve Bank or Federal Home Loan Bank, and entry into repurchase
agreements fully secured by U.S. government or agency securities), or impose, or
suffer the imposition, on any Asset of any Premier Company of any Lien or
permit any such Lien to exist (other than in connection with deposits,
repurchase agreements, bankers acceptances, Federal Home Loan Bank advances,
"treasury tax and loan" accounts established in the ordinary course of business,
the satisfaction of legal requirements in the exercise of trust powers, and
Liens in effect as of the date hereof that are disclosed in the Premier
Disclosure Memorandum); or
---------------------
(c) 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 Premier Company, or declare or pay any dividend or make any
other distribution in respect of Premier's capital stock; provided, however,
that Premier may (to the extent legally and contractually permitted to do so)
pay a cash dividend of up to $.56 per share on the shares of Premier Common
Stock in January or February of 1997; or
(d) except for this Agreement, or pursuant to the exercise of stock
options outstanding as of the date hereof and pursuant to the terms thereof in
existence on the date hereof, or as disclosed in Section 7.4(d) of the Premier
Disclosure Memorandum, issue, sell, pledge,
---------------------
A-34
encumber, authorize the issuance of or enter into any Contract to issue, sell,
pledge, encumber, or authorize the issuance of or otherwise permit to become
outstanding, any additional shares of Premier Common Stock or any other capital
stock of any Premier Company, or any stock appreciation rights, or any option,
warrant, conversion, or other right to acquire any such stock, or any security
convertible into any such stock; or
(e) adjust, split, combine or reclassify any capital stock of any
Premier Company (other than the stock split contemplated in Section 9.3(e)
hereof) or issue or authorize the issuance of any other securities in respect of
or in substitution for shares of Premier Common Stock or sell, lease, mortgage
or otherwise dispose of or otherwise encumber (i) any shares of capital stock of
any Premier Subsidiary (unless any such shares of stock are sold or otherwise
transferred to another Premier Company) or (ii) any Asset having a book value in
excess of $50,000 other than in the ordinary course of business for reasonable
and adequate consideration; or
(f) except for purchases of U.S. Treasury securities or U.S.
Government agency securities or securities of like maturity or grade or general
obligations of states and municipalities, purchase any securities or make any
material investment, either by purchase of stock or securities, contributions to
capital, Asset transfers, or purchase of any Assets, in any Person other than a
wholly-owned Premier Subsidiary; or otherwise acquire direct or indirect control
over any Person, other than in connection with (i) foreclosures in the ordinary
course of business, or (ii) acquisitions of control by Premier Bank in its
fiduciary capacity; or
(g) grant any increase in compensation or benefits to any employees
whose annual salary exceeds $50,000 of any Premier Company (including such
discretionary increases as may be contemplated by existing employment
agreements), except in accordance with past practice or previously approved by
the Board of Directors of Premier, in each case as disclosed in Section 7.4(g)
of the Premier Disclosure Memorandum or as required by Law; pay any severance
---------------------
or termination pay or any bonus other than pursuant to written policies or
written Contracts in effect on the date of this Agreement and disclosed in
Section 7.4(g) of the Premier Disclosure Memorandum; enter into or amend any
---------------------
severance agreements with officers of any Premier Company; grant any general
increase in compensation to all employees; grant any increase in fees or other
increases in compensation or other benefits to directors of any Premier
Company; or voluntarily accelerate the vesting of any stock options or other
stock-based compensation or employee benefits; or
(h) enter into or amend any employment Contract between any Premier
Company and any Person (unless such amendment is required by Law) that the
Premier Company does not have the unconditional right to terminate without
Liability (other than Liability for services already rendered), at any time on
or after the Effective Time; or
(i) adopt any new employee benefit plan of any Premier Company or make
any material change in or to any existing employee benefit plans of any Premier
Company other than any such change that is required by Law or that, in the
opinion of counsel, is necessary or advisable to maintain the tax qualified
status of any such plan; or
A-35
(j) make any significant change in any Tax or accounting methods or
systems of internal accounting controls, except as may be appropriate to conform
to changes in Tax Laws or regulatory accounting requirements or GAAP; or
(k) commence any Litigation other than in accordance with past
practice, settle any Litigation involving any Liability of any Premier Company
for money damages in excess of $50,000 or which imposes material restrictions
upon the operations of any Premier Company; or
(l) except in the ordinary course of business, modify, amend or
terminate any material Contract or waive, release, compromise or assign any
material rights or claims.
7.5 ADVERSE CHANGES IN CONDITION. Each Party agrees to give written
----------------------------
notice promptly to the other Party upon becoming aware of the occurrence or
impending occurrence of any event or circumstance relating to it or any of its
Subsidiaries which (a) is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on it or (b) is reasonably likely to cause
or constitute a material breach of any of its representations, warranties, or
covenants contained herein, and to use its reasonable efforts to prevent or
promptly to remedy the same.
7.6 REPORTS. Each Party and its Subsidiaries shall file all reports
-------
required to be filed by it with Regulatory Authorities between the date of this
Agreement and the Effective Time and shall deliver to the other Party copies of
all such reports promptly after the same are filed.
ARTICLE 8
ADDITIONAL AGREEMENTS
---------------------
8.1 REGISTRATION STATEMENT; PROXY STATEMENT; SHAREHOLDER APPROVAL.
-------------------------------------------------------------
(a) As soon as practicable after execution of this Agreement, Premier
shall file the Registration Statement with the SEC, and shall use its reasonable
efforts to cause the Registration Statement to become effective under the 1933
Act and take any action required to be taken under the applicable state Blue Sky
or securities Laws in connection with the issuance of the shares of Surviving
Corporation Common Stock upon consummation of the Merger. Central and Southern
shall furnish all information concerning it and the holders of its capital stock
as Premier may reasonably request in connection with such action.
(b) Central and Southern 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 Central and Southern deems
appropriate.
(c) In connection with the Central and Southern Shareholders' Meeting,
(i) Premier shall prepare and file with the SEC on Central and Southern's behalf
a Proxy Statement
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(which shall be included in the Registration Statement) and mail it to Central
and Southern's shareholders, (ii) the Parties shall furnish to each other all
information concerning them that they may reasonably request in connection with
such Proxy Statement, (iii) the Board of Directors of Central and Southern shall
recommend (subject to compliance with the fiduciary duties of the members of the
Board of Directors as advised by counsel) to its shareholders the approval of
this Agreement and (iv) the Board of Directors and officers of Central and
Southern shall use their reasonable efforts to obtain such shareholders'
approval (subject to compliance with their fiduciary duties as advised by
counsel).
8.2 EXCHANGE LISTING. Premier shall use its reasonable efforts to
----------------
list, prior to the Effective Time, on the American Stock Exchange the Premier
Common Stock and the shares of Surviving Corporation Common Stock to be issued
to the holders of Central and Southern Common Stock pursuant to the Merger.
8.3 APPLICATIONS. Premier shall promptly prepare and file, and
------------
Central and Southern shall cooperate in the preparation and, where appropriate,
filing of, applications with the Board of Governors of the Federal Reserve
System and the Georgia Department of Banking and Finance seeking the requisite
Consents necessary to consummate the transactions contemplated by this
Agreement.
8.4 FILINGS WITH STATE OFFICES. Upon the terms and subject to the
--------------------------
conditions of this Agreement, Premier shall execute and file the Certificate of
Merger with the Secretary of State of the State of Georgia in connection with
the Closing.
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, as promptly as practicable so as to permit
consummation of the Merger at the earliest possible date and to otherwise enable
consummation of the transactions contemplated hereby and shall cooperate fully
with the other Party hereto to that end (it being understood that any amendments
to the Registration Statement filed by Premier in connection with the Surviving
Corporation Common Stock to be issued in the Merger shall not violate this
covenant), including, without limitation, using its reasonable efforts to lift
or rescind any Order adversely affecting its ability to consummate the
transactions contemplated herein and to cause to be satisfied the conditions
referred to in Article 9 of this Agreement. Each Party shall use, and shall
cause each of its Subsidiaries to use, its reasonable efforts to obtain all
Consents necessary or desirable for the consummation of the transactions
contemplated by this Agreement.
8.6 INVESTIGATION AND CONFIDENTIALITY.
---------------------------------
(a) Prior to the Effective Time, each Party will keep the other Party
advised of all material developments relevant to its business and to
consummation of the Merger and shall permit the other Party to make or cause to
be made such investigation of the business and properties
A-37
of it and its Subsidiaries and of their respective financial and legal
conditions as the other Party reasonably requests, provided that such
investigation shall be reasonably related to the transactions contemplated
hereby and shall not interfere unnecessarily with normal operations. No
investigation by a Party shall affect the representations and warranties of the
other Party.
(b) Each Party shall, and shall cause its advisers and agents to,
maintain the confidentiality of all confidential information furnished to it by
the other Party concerning its and its Subsidiaries' businesses, operations, and
financial positions and shall not use such information for any purpose except in
furtherance of the transactions contemplated by this Agreement. If this
Agreement is terminated prior to the Effective Time, each Party shall promptly
return all documents and copies thereof and all work papers containing
confidential information received from the other Party, except for one copy of
any materials prepared by that Party or any attorney for or other representative
of that Party based upon such confidential information.
(c) Each Party agrees to give the other Party notice as soon as
practicable after any determination by it of any fact or occurrence relating to
the other Party which it has discovered through the course of its investigation
and which represents, or is reasonably likely to represent, either a material
breach of any representation, warranty, covenant or agreement of the other Party
or which has had or is reasonably likely to have a Material Adverse Effect on
the other Party.
8.7 PRESS RELEASES. Prior to the Effective Time, Premier and Central
--------------
and Southern shall agree with each other as to the form and substance of any
press release or other public disclosure materially related to this Agreement or
any other transaction contemplated hereby; provided, however, that nothing in
this Section 8.7 shall be deemed to prohibit any Party from making any
disclosure which its counsel deems necessary or advisable in order to satisfy
such Party's disclosure obligations imposed by Law.
8.8 ACQUISITION PROPOSALS. Except with respect to this Agreement
---------------------
and the transactions contemplated hereby, no Party nor any Affiliate thereof nor
any investment banker, attorney, accountant or other representative
(collectively, "Representatives") retained by any Party shall directly or
indirectly solicit any Acquisition Proposal by any Person. Except to the extent
necessary to comply with the fiduciary duties of a Party's Board of Directors as
advised by counsel, no Party 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 Contract with respect to, any
Acquisition Proposal, but a Party may communicate information about such an
Acquisition Proposal to its shareholders if and to the extent that it is
required to do so in order to comply with its legal obligations as advised by
counsel. Each Party shall promptly notify the other orally and in writing in
the event that it receives any inquiry or proposal relating to any such
transaction. Unless the prior written consent of the other Party is obtained,
each Party shall (a) immediately cease and cause to be terminated any existing
activities, discussions or negotiations with any Persons conducted heretofore
with respect to any of the foregoing, and (b) direct and use its reasonable
efforts to cause all of its Representatives not to engage in any of the
foregoing.
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8.9 ACCOUNTING AND TAX TREATMENT. Each of the Parties undertakes
----------------------------
and agrees to use its reasonable efforts to cause the Merger to qualify, and to
take no action which would cause the Merger not to qualify, for treatment as a
"reorganization" within the meaning of Section 368(a) of the Internal Revenue
Code for federal income tax purposes. Each of the Parties further undertakes
and agrees to use its reasonable best efforts to cause the Merger to be
eligible, and to take no action which would cause the Merger not to be eligible,
to be accounted for as a "pooling of interests."
8.10 AGREEMENT OF AFFILIATES. Central and Southern has disclosed in
-----------------------
Section 8.10 of the Central and Southern Disclosure Memorandum all Persons whom
---------------------
it reasonably believes is an "affiliate" of Central and Southern for purposes of
Rule 145 under the 1933 Act. Central and Southern shall use its reasonable
efforts to cause each such Person to deliver to Premier and Central and
Southern, not later than thirty (30) days after the date of this Agreement, a
written agreement, substantially in the form of Exhibit 1, providing that such
---------
Person will not sell, pledge, transfer or otherwise dispose of the shares of
Central and Southern Common Stock held by such Person except as contemplated by
such agreement or by this Agreement and will not sell, pledge, transfer or
otherwise dispose of the shares of Surviving Corporation Common Stock to be
received by such Person upon consummation of the Merger except in compliance
with applicable provisions of the 1933 Act and the rules and regulations
thereunder. The Surviving Corporation shall be entitled to place restrictive
legends upon certificates for shares of Surviving Corporation Common Stock
issued to Affiliates of Central and Southern pursuant to this Agreement to
enforce the provisions of this Section 8.10. The Surviving Corporation shall not
be required to maintain the effectiveness of the Registration Statement under
the 1933 Act for the purposes of resale of Surviving Corporation Common Stock by
such Affiliates.
8.11 EMPLOYEE BENEFITS AND CONTRACTS.
-------------------------------
(a) Following the Effective Time, the Surviving Corporation shall
provide generally to officers and employees of the Central and Southern
Companies who continue employment with the Surviving Corporation or its
Subsidiaries following the Effective Time employee benefits under employee
benefit plans, on terms and conditions which when taken as a whole are
substantially similar to those currently provided by the Premier Companies to
their similarly situated officers and employees. For purposes of participation
under such employee benefit plans, the service of the employees of the Central
and Southern Companies prior to the Effective Time shall be treated as service
with a Premier Company participating in such employee benefit plans, provided
that, with respect to any employee benefit plan where the benefits are funded
through insurance, the granting of such service shall be subject to the consent
of the appropriate insurer and may be conditioned upon an employee's
participation in a Central and Southern Benefit Plan of the same type
immediately prior to the Effective Time.
(b) The Surviving Corporation and its Subsidiaries also shall honor in
accordance with their terms all employment, severance, consulting and other
compensation Contracts disclosed in Section 8.11 of the Central and Southern
Disclosure Memorandum to Premier between any Central and Southern Company and
---------------------
any current or former director, officer, or employee thereof and
A-39
all provisions for vested benefits accrued through the Effective Time under the
Central and Southern Benefit Plans. The Surviving Corporation shall enter into
three year employment agreements with each of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ and shall enter into one year employment agreements with each of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and Tren ▇. ▇▇▇▇▇▇ in substantially the forms attached
hereto as Exhibit 5.
---------
(c) At the Effective Time the Surviving Corporation shall enter into a
three year employment agreement with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ in substantially the
form attached hereto as Exhibit 6.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
-------------------------------------------------
9.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The respective
---------------------------------------
obligations of each Party to perform this Agreement and consummate the Merger
and the other transactions contemplated hereby are subject to the satisfaction
of the following conditions, unless waived by both Parties pursuant to Section
11.6 of this Agreement:
(a) Shareholder Approval. The shareholders of Premier and Central and
--------------------
Southern shall have approved this Agreement, and the consummation of the
transactions contemplated hereby, including the Merger, as and to the extent
required by Law, the American Stock Exchange or by the provisions of any
governing instruments.
(b) Regulatory Approvals. All Consents of, filings and registrations
--------------------
with, and notifications to all Regulatory Authorities required for consummation
of the Merger shall have been obtained or made and shall be in full force and
effect and all waiting periods required by Law shall have expired. No Consent
obtained from any Regulatory Authority which is necessary to consummate the
transactions contemplated hereby shall be conditioned or restricted in a manner
(including, without limitation, requirements relating to the raising of
additional capital or the disposition of Assets) which in the reasonable
judgment of the Board of Directors of either Party would so materially adversely
impact the economic or business benefits of the transactions contemplated by
this Agreement as to render inadvisable the consummation of the Merger.
(c) Consents and Approvals. Each Party shall have obtained any and
----------------------
all Consents required for consummation of the Merger (other than those referred
to in Section 9.1(b) of this Agreement) or for the preventing of any Default
under any Contract or Permit of such Party which, if not obtained or made, is
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on such Party. No Consent so obtained which is necessary to consummate
the transactions contemplated hereby shall be conditioned or restricted in a
manner which in the reasonable judgment of the Board of Directors of either
Party would so materially adversely impact the economic or business benefits of
the transactions contemplated by this Agreement as to render inadvisable the
consummation of the Merger.
A-40
(d) Registration Statement. The Registration Statement shall be
----------------------
effective under the 1933 Act, no stop orders suspending the effectiveness of the
Registration Statement shall have been issued, no action, suit, proceeding or
investigation by the SEC to suspend the effectiveness thereof shall have been
initiated and be continuing, and all necessary approvals under state securities
Laws or the 1933 Act or 1934 Act relating to the issuance or trading of the
shares of the Surviving Corporation Common Stock issuable pursuant to the Merger
shall have been received.
(e) Exchange Listing. The shares of Surviving Corporation Common
----------------
Stock issuable pursuant to the Merger shall have been approved for listing on
the American Stock Exchange.
(f) Tax Matters. Premier and Central and Southern shall have received
-----------
a written opinion of counsel from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC, in form
reasonably satisfactory to them (the "Tax Opinion"), to the effect that for
federal income tax purposes (i) the Merger will constitute a reorganization
within the meaning of Section 368(a) of the Internal Revenue Code, (ii) the
exchange in the Merger of Central and Southern Common Stock for Surviving
Corporation Common Stock will not give rise to gain or loss to the shareholders
of Central and Southern with respect to such exchange (except to the extent of
any cash received), and (iii) neither Premier nor Central and Southern will
recognize gain or loss as a consequence of the Merger (except for income and
deferred gain recognized pursuant to Treasury regulations issued under Section
1502 of the Internal Revenue Code). In rendering such Tax Opinion, counsel
shall be entitled to rely upon representations of officers of Premier and
Central and Southern reasonably satisfactory in form and substance to such
counsel.
(g) Affiliate Agreements. The Parties shall have received from each
--------------------
affiliate of Central and Southern the affiliates letter referred to in Section
8.10 hereof.
(h) Pooling Letter. The Parties shall have received a letter from
--------------
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLC, and from ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, LLP dated as of the
Effective Time, to the effect that the Merger will qualify for pooling-of-
interests accounting treatment under Accounting Principles Board Opinion No. 16
if closed and consummated in accordance with this Agreement.
9.2 CONDITIONS TO OBLIGATIONS OF PREMIER. The obligations of Premier
------------------------------------
to perform this Agreement and consummate the Merger and the other transactions
contemplated hereby are subject to the satisfaction of the following conditions,
unless waived by Premier pursuant to Section 11.6(a) of this Agreement:
(a) Representations and Warranties. For purposes of this Section
------------------------------
9.2(a), the accuracy of the representations and warranties of Central and
Southern set forth or referred to in this Agreement shall be assessed as of the
date of this Agreement and as of the Effective Time with the same effect as
though all such representations and warranties had been made on and as of the
Effective Time (provided that representations and warranties which are confined
to a specified date
A-41
shall speak only as of such date). The representations and warranties of Central
and Southern set forth in Section 5.3 of this Agreement shall be true and
correct (except for inaccuracies which are de minimis in amount). The
representations and warranties of Central and Southern set forth in Section 5.19
of this Agreement shall be true and correct in all material respects. There
shall not exist inaccuracies in the representations and warranties of Central
and Southern set forth in this Agreement (excluding the representations and
warranties set forth in Sections 5.3 and 5.19) such that the aggregate effect of
such inaccuracies would have, or is reasonably likely to have, a Material
Adverse Effect on Central and Southern; provided that, for purposes of this
sentence only, those representations and warranties which are qualified by
references to "material" or "Material Adverse Effect" shall be deemed not to
include such qualifications.
(b) Performance of Agreements and Covenants. Each and all of the
---------------------------------------
agreements and covenants of Central and Southern 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. Central and Southern shall have delivered to
------------
Premier (i) a certificate, dated as of the Effective Time and signed on its
behalf by its chief executive officer and its chief financial officer, to the
effect that the conditions of its obligations set forth in Sections 9.2(a) and
9.2(b) of this Agreement have been satisfied, and (ii) certified copies of
resolutions duly adopted by Central and Southern'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 Premier and its counsel shall request.
(d) Opinion of Counsel. Central and Southern shall have delivered to
------------------
Premier an opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLP, counsel to Central and Southern,
dated as of the Effective Time, in form reasonably satisfactory to Premier, as
to the matters set forth in Exhibit 2 hereto.
---------
(e) Claims/Indemnification Letters. Each of the directors and
------------------------------
officers of Central and Southern shall have executed and delivered to Premier
letters in substantially the form of Exhibit 3 hereto.
---------
(f) Premier Fairness Opinion. Premier shall have received from ▇▇▇▇▇,
------------------------
▇▇▇▇▇ Capital Partners, Inc. a letter, dated not more than five (5) business
days prior to the date of the Proxy Statement, to the effect that, in the
opinion of such firm, the consideration to be paid to Central and Southern
shareholders in connection with the Merger is fair, from a financial point of
view, to the shareholders of Premier.
(g) Litigation. No preliminary or permanent injunction or other order
----------
by any federal or state court which prevents the consummation of the Merger
shall have been issued and shall remain in effect, nor any action therefor
initiated which, in the good faith judgment of the Board of Directors of
Premier, it is not in the best interests of the shareholders of Premier to
contest;
A-42
and there shall not have been instituted or be pending any action or proceeding
by any United States federal or state government or governmental agency or
instrumentality (i) challenging or seeking to restrain or prohibit the
consummation of the Merger or seeking material damages in connection with the
Merger; or (ii) seeking to prohibit Premier's or the Surviving Corporation's
ownership or operation of all or a material portion of Premier's or Central and
Southern's business or assets, or compel Premier or the Surviving Corporation to
dispose of or hold separate all or a material portion of Premier's or Central
and Southern's business or assets as a result of the Merger, which, in any case,
in the reasonable judgment of Premier based upon a legal opinion from legal
counsel, could result in the relief sought being obtained.
9.3 CONDITIONS TO OBLIGATIONS OF CENTRAL AND SOUTHERN. The
-------------------------------------------------
obligations of Central and Southern to perform this Agreement and consummate the
Merger and the other transactions contemplated hereby are subject to the
satisfaction of the following conditions, unless waived by Central and Southern
pursuant to Section 11.6(b) of this Agreement:
(a) Representations and Warranties. For purposes of this Section
------------------------------
9.3(a), the accuracy of the representations and warranties of Premier set forth
or referred to in this Agreement shall be assessed as of the date of this
Agreement and as of the Effective Time with the same effect as though all such
representations and warranties had been made on and as of the Effective Time
(provided that representations and warranties which are confined to a specified
date shall speak only as of such date). The representations and warranties of
Premier set forth in Section 6.3 of this Agreement shall be true and correct
(except for inaccuracies which are de minimis in amount). The representations
and warranties of Premier set forth in Section 6.19 of this Agreement shall be
true and correct in all material respects. There shall not exist inaccuracies
in the representations and warranties set forth in this Agreement (excluding the
representations and warranties set forth in Sections 6.3 and 6.19) such that the
aggregate effect of such inaccuracies would have, or is reasonably likely to
have a Material Adverse Effect on Premier; provided that, for purposes of this
sentence only, those representations and warranties which are qualified by
reference to "material" or "Material Adverse Effect" shall be deemed not to
include such qualifications.
(b) Performance of Agreements and Covenants. Each and all of the
---------------------------------------
agreements and covenants of Premier to be performed and complied with pursuant
to this Agreement and the other agreements contemplated hereby prior to the
Effective Time shall have been duly performed and complied with in all material
respects.
(c) Certificates. Premier shall have delivered to Central and
------------
Southern (i) a certificate, dated as of the Effective Time and signed on its
behalf by its chief executive officer and its chief financial officer, to the
effect that the conditions of its obligations set forth in Section 9.3(a) and
9.3(b) of this Agreement have been satisfied, and (ii) certified copies of
resolutions duly adopted by Premier's Board of Directors evidencing the taking
of all corporate action necessary to authorize the execution, delivery and
performance of this Agreement, and the consummation of the transactions
contemplated hereby, all in such reasonable detail as Central and Southern and
its counsel shall request.
A-43
(d) Opinion of Counsel. Premier shall have delivered to Central and
------------------
Southern an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC, counsel to
Premier, dated as of the Effective Time, in form reasonably acceptable to
Central and Southern, as to matters set forth in Exhibit 4 hereto.
---------
(e) Premier Stock Split. Immediately prior to the Effective Time,
-------------------
Premier shall have effected a 1.8055 for one split of the Premier Common Stock,
so that Premier shall have 4,495,747 shares of common stock outstanding and
issuable upon the exercise of outstanding stock options immediately prior to the
Effective Time.
(f) Central and Southern Fairness Opinion. Central and Southern shall
-------------------------------------
have received from ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Co. Investment Banking a letter, dated not
more than five (5) business days prior to the date of the Proxy Statement, to
the effect that, in the opinion of such firm, the consideration to be paid to
Central and Southern shareholders in connection with the Merger is fair, from a
financial point of view, to the shareholders of Central and Southern.
(g) Litigation. No preliminary or permanent injunction or other order
----------
by any federal or state court which prevents the consummation of the Merger
shall have been issued and shall remain in effect, nor any action therefor
initiated which, in the good faith judgment of the Board of Directors of Central
and Southern, it is not in the best interests of the shareholders of Central and
Southern to contest; and there shall not have been instituted or be pending any
action or proceeding by any United States federal or state government or
governmental agency or instrumentality (i) challenging or seeking to restrain or
prohibit the consummation of the Merger or seeking material damages in
connection with the Merger; or (ii) seeking to prohibit Premier's or the
Surviving Corporation's ownership or operation of all or a material portion of
Premier's or Central and Southern's business or assets, or compel Premier or the
Surviving Corporation to dispose of or hold separate all or a material portion
of Premier's or Central and Southern's business or assets as a result of the
Merger, which, in any case, in the reasonable judgment of Central and Southern
based upon a legal opinion from legal counsel, could result in the relief sought
being obtained.
ARTICLE 10
TERMINATION
-----------
10.1 TERMINATION. Notwithstanding any other provision of this
-----------
Agreement, and notwithstanding the approval of this Agreement by the
shareholders of Premier and Central and Southern, this Agreement may be
terminated and the Merger abandoned at any time prior to the Effective Time:
(a) By mutual consent of the Board of Directors of Central and
Southern and the Board of Directors of Premier; or
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(b) By the Board of Directors of either Party (provided that the
terminating Party is not then in breach of any representation or warranty
contained in this Agreement under the applicable standard set forth in Section
9.2(a) of this Agreement in the case of Central and Southern and Section 9.3(a)
in the case of Premier or in the material breach of any covenant or agreement
contained in this Agreement) in the event of a material breach by the other
Party of any representation or warranty contained in this Agreement which cannot
be or has not been cured within thirty (30) days after the giving of written
notice to the breaching Party of such breach and which breach would provide the
non-breaching Party the ability to refuse to consummate the Merger under the
standard set forth in Section 9.2(a) of this Agreement in the case of Premier
and Section 9.3(a) of this Agreement in the case of Central and Southern; or
(c) By the Board of Directors of either Party (provided that the
terminating Party is not then in breach of any representation or warranty
contained in this Agreement under the applicable standard set forth in Section
9.2(a) of this Agreement in the case of Central and Southern and Section 9.3(a)
in the case of Premier or in the material breach of any covenant or other
agreement contained in this Agreement) in the event of a material breach by the
other Party of any covenant or agreement contained in this Agreement which
cannot be or has not been cured within thirty (30) days after the giving of
written notice to the breaching Party of such breach; or
(d) By the Board of Directors of either Party in the event (provided
that the terminating Party is not then in breach of any representation or
warranty contained in this Agreement under the applicable standard set forth in
Section 9.2(a) of this Agreement in the case of Central and Southern and Section
9.3(a) in the case of Premier or in the material breach of any covenant or
agreement contained in this Agreement) (i) any Consent of any Regulatory
Authority required for consummation of the Merger and the other transactions
contemplated hereby shall have been denied by final nonappealable action of such
authority or if any action taken by such authority is not appealed within the
time limit for appeal, or (ii) if the shareholders of Central and Southern fail
to vote their approval of this Agreement and the transactions contemplated
hereby as required by the GBCC at the Shareholders' Meeting where the
transactions were presented to such shareholders for approval and voted upon; or
(iii) if the shareholders of Premier fail to vote their approval of this
Agreement and the transactions contemplated hereby as required by the GBCC at
the Shareholders' Meeting where the transactions were presented to such
shareholders for approval and voted upon; or
(e) By the Board of Directors of either Party in the event that both
parties are in breach of any representation or warranty contained in the
Agreement under the applicable standard set forth in Section 9.2(a) or 9.3(a)
and only in the case of an event described in 10.1(d)(i)-(iii) above;
(f) By the Board of Directors of either Party in the event that the
Merger shall not have been consummated on or before June 30, 1997, but only if
the failure to consummate the transactions contemplated hereby on or before such
date is not caused by any breach of this Agreement by the Party electing to
terminate pursuant to this Section 10.1(f); or
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(g) By the Board of Directors of either Party (provided that the
terminating Party is not then in breach of any representation or warranty
contained in this Agreement under the applicable standard set forth in Section
9.2(a) of this Agreement in the case of Central and Southern and Section 9.3(a)
in the case of Premier or in the material breach of any covenant or other
agreement contained in this Agreement) in the event that any of the conditions
precedent to the obligations of such Party to consummate the Merger (other than
as contemplated by Section 10.1(d) of this Agreement) cannot be satisfied or
fulfilled by the date specified in Section 10.1(f) of this Agreement; or
(h) By the Board of Directors of either Party, at any time prior to
the 15th day after execution of this Agreement without any Liability in the
event that the review of the Assets, business, financial condition, results of
operations, and prospects of the other Party undertaken by it or any of the
disclosures contained in the other Party's Disclosure Memorandum causes its
---------------------
Board of Directors to determine, in its reasonable good faith judgment, that a
fact or circumstance exists or is likely to exist or result which materially and
adversely impacts one or more of the economic benefits to it of the transactions
contemplated by this Agreement so as to render inadvisable the consummation of
the Merger.
10.2 EFFECT OF TERMINATION. In the event of the termination and
---------------------
abandonment of this Agreement pursuant to Section 10.1 of this Agreement, this
Agreement shall become void and have no effect, except that the provisions of
this Section 10.2 and Article 11 and Section 8.6(b) of this Agreement shall
survive any such termination and abandonment.
10.3 NON-SURVIVAL OF REPRESENTATIONS AND COVENANTS. The respective
---------------------------------------------
representations, warranties, obligations, covenants, and agreements of the
Parties shall not survive the Effective Time except for this Section 10.3 and
Articles 2, 3, 4 and 11 and Section 8.10 of this Agreement.
ARTICLE 11
MISCELLANEOUS
-------------
11.1 DEFINITIONS. Except as otherwise provided herein, the
-----------
capitalized terms set forth below (in their singular and plural forms as
applicable) shall have the following meanings:
"1933 ACT" shall mean the Securities Act of 1933, as amended.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended.
"ACQUISITION PROPOSAL" with respect to a Party shall mean any tender
offer or exchange offer or any proposal for a merger (other than the Merger),
acquisition of all of the stock or Assets of, or other business combination
involving such Party or any of its Subsidiaries or the acquisition
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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 officer, director, partner,
employer, or direct or indirect beneficial owner of any 10% or greater equity or
voting interest of such Person; or (iii) any other Person for which a Person
described in clause (ii) acts in such capacity.
"AGREEMENT" shall mean this Agreement and Plan of Merger, including
the Exhibits delivered pursuant hereto and incorporated herein by reference.
"ALLOWANCE" shall have the meaning provided in Section 5.9 of this
Agreement.
"ASSETS" of a Person shall mean all of the assets, properties,
businesses and rights of such Person of every kind, nature, character and
description, whether real, personal or mixed, tangible or intangible, accrued or
contingent, or otherwise relating to or utilized in such Person's business,
directly or indirectly, in whole or in part, whether or not carried on the books
and records of such Person, and whether or not owned in the name of such Person
or any Affiliate of such Person and wherever located.
"BHC ACT" shall mean the federal Bank Holding Company Act of 1956, as
amended.
"CENTRAL AND SOUTHERN BENEFIT PLANS" shall have the meaning set forth
in Section 5.14 of this Agreement.
"CENTRAL AND SOUTHERN COMMON STOCK" shall mean the $1.00 par value
common stock of Central and Southern.
"CENTRAL AND SOUTHERN COMPANIES" shall mean, collectively, Central and
Southern and all Central and Southern Subsidiaries.
"CENTRAL AND SOUTHERN DISCLOSURE MEMORANDUM" shall mean the written
---------------------
information entitled "Central and Southern Disclosure Memorandum" delivered on
---------------------
or prior to the date of this Agreement to Premier describing in reasonable
detail the matters contained therein, specifically referencing each Section of
this Agreement under which such disclosure is being made.
"CENTRAL AND SOUTHERN FINANCIAL STATEMENTS" shall mean (a) the
consolidated balance sheets (including related notes and schedules, if any) of
Central and Southern as of September 30, 1996 and December 31, 1996, and as of
December 31, 1995 and 1994, and the related statements of income, changes in
shareholders' equity, and cash flows (including related notes and schedules, if
any) for the nine months ended September 30, 1996, and for each of the two
fiscal years ended December 31, 1995 and 1994, included in the Central and
Southern Disclosure Memorandum, and
---------------------
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(b) the consolidated balance sheets (including related notes and schedules, if
any) of Central and Southern and related statements of income, changes in
shareholders' equity, and cash flows (including related notes and schedules, if
any) included in any SEC Documents filed with respect to periods ended
subsequent to September 30, 1996.
"CENTRAL AND SOUTHERN OPTIONS" shall have the meaning set forth in
Section 3.4 of this Agreement.
"CENTRAL AND SOUTHERN STOCK PLANS" shall mean the existing stock
option and other stock-based compensation plans of Central and Southern
disclosed in Section 5.14 of the Central and Southern Disclosure Memorandum.
---------------------
"CENTRAL AND SOUTHERN SUBSIDIARIES" shall mean the subsidiaries of
Central and Southern.
"CLOSING" shall mean the closing of the transactions contemplated
hereby, as described in Section 1.2 of this Agreement.
"CLOSING DATE" shall mean the date on which the Closing occurs.
"CONSENT" shall mean any consent, approval, authorization, clearance,
exemption, waiver, or similar affirmation by any Person pursuant to any
Contract, Law, Order, or Permit.
"CONTRACT" shall mean any written or oral agreement, arrangement,
authorization, commitment, contract, indenture, instrument, lease, obligation,
plan, practice, restriction, understanding or undertaking of any kind or
character, or other document to which any Person is a party or that is binding
on any Person or its capital stock, Assets or business.
"DEFAULT" shall mean (a) any breach or violation of or default under
any Contract, Order or Permit, (b) any occurrence of any event that with the
passage of time or the giving of notice or both would constitute a breach or
violation of or default under any Contract, Order or Permit, or (c) any
occurrence of any event that with or without the passage of time or the giving
of notice would give rise to a right to terminate or revoke, change the current
terms of, or renegotiate, or to accelerate, increase, or impose any Liability
under, any Contract, Order or Permit.
"EFFECTIVE TIME" shall mean the date and time at which the Merger
becomes effective as defined in Section 1.3 of this Agreement.
"ENVIRONMENT" shall have the meaning specified in the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. (S) 9601(8).
"ENVIRONMENTAL LAWS" shall mean all Laws pertaining to pollution or
protection of the environment and which are administered, interpreted or
enforced by the United States Environmental Protection Agency and state and
local agencies with primary jurisdiction over pollution or protection
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of the environment, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. (S) 9601
et. seq., the Resource, Conservation and Recovery Act, 42 U.S.C. (S) 6901
-------
et. seq., the Toxic Substance Control Act, 15 U.S.C. (S) 2601, et. seq., and all
------- -------
implementing regulations and state counterparts of such acts.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"ERISA AFFILIATE" shall refer to a relationship between entities such
that the entities would, now or at any time in the past, constitute a "single
employer" within the meaning of Section 414 of the Internal Revenue Code.
"ERISA PLAN" shall have the meaning provided in Section 5.14 of this
Agreement.
"EXCHANGE RATIO" shall have the meaning provided in Section 3.1 of
this Agreement.
"EXHIBITS" 1 through 5, inclusive, shall mean the Exhibits so marked,
copies of which are attached to this Agreement. Such Exhibits are hereby
incorporated by reference herein and made a part hereof and may be referred to
in this Agreement and any other related instrument or document without being
attached hereto.
"GAAP" shall mean generally accepted accounting principles,
consistently applied during the periods involved.
"GBCC" shall mean the Georgia Business Corporation Code.
"GEORGIA CERTIFICATE OF MERGER" shall mean the Certificate of Merger
to be executed by the Surviving Corporation and filed with the Secretary of
State of the State of Georgia relating to the Merger as contemplated by Section
1.1 of this Agreement.
"HAZARDOUS MATERIAL" shall mean any substance which is a "hazardous
substance"or "toxic substance" as defined in the Comprehensive Environment
Response, Compensation, and Liability Act, 42 U.S.C. (S)9601 et seq., or any
------
other substance or material defined, designated, classified or regulated as
hazardous or toxic under any Environmental Law, specifically including asbestos
requiring abatement, removal or encapsulation pursuant to the requirements of
Environmental Laws of polychlorinated biphenyls, and petroleum and petroleum
products).
"HOLA" shall mean the Home Owners Loan Act of 1933, as amended.
"INTERNAL REVENUE CODE" shall mean the Internal Revenue Code of 1986,
as amended, and the rules and regulations promulgated thereunder.
"KNOWLEDGE" as used with respect to a Person shall mean the knowledge
after due inquiry of the Chairman, President, Chief Financial Officer, Chief
Accounting Officer, Chief Credit Officer,
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or any Senior or Executive Vice President of such Person, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, G.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ with regard to Premier and ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ with regard to Central and
Southern.
"LAW" shall mean any code, law, ordinance, regulation, reporting or
licensing requirement, rule, or statute applicable to a Person or its Assets,
Liabilities or business, including, without limitation, those promulgated,
interpreted or enforced by any of the Regulatory Authorities.
"LIABILITY" shall mean any direct or indirect, primary or secondary,
liability, indebtedness, obligation, penalty, cost or expense (including,
without limitation, costs of investigation, collection and defense), claim,
deficiency, guaranty or endorsement of or by any Person (other than endorsements
of notes, bills, checks, and drafts presented for collection or deposit in the
ordinary course of business) of any type, whether accrued, absolute or
contingent, liquidated or unliquidated, matured or unmatured, or otherwise.
"LIEN" shall mean any conditional sale agreement, easement,
encroachment, encumbrance, hypothecation, infringement, lien, mortgage, pledge,
reservation, restriction, security interest, title retention or other security
arrangement, or any adverse right or interest, charge, or claim of any nature
whatsoever on, or with respect to, any property or property interest, other than
(i) Liens for current property Taxes not yet due and payable; (ii) for
depository institution Subsidiaries of a Party, pledges to secure deposits and
(iii) other Liens incurred in the ordinary course of the banking business.
"LITIGATION" shall mean any action, arbitration, cause of action,
claim, complaint, criminal prosecution, demand letter, governmental or other
examination or investigation, hearing, inquiry, administrative or other
proceeding, or notice (written or oral) by any Person alleging potential
Liability or requesting information relating to or affecting a Party, its
business, its Assets (including, without limitation, Contracts related to it),
or the transactions contemplated by this Agreement, but shall not include
regular, periodic examinations of depository institutions and their Affiliates
by Regulatory Authorities other than the violations of law section from such
reports.
"LOAN PROPERTY" shall mean any property owned by the Party in question
or by any of its Subsidiaries or in which such Party or Subsidiary holds a
security interest, and, where required by the context, includes the owner or
operator of such property, but only with respect to such property.
"MATERIAL" for purposes of this Agreement shall be determined in light
of the facts and circumstances of the matter in question; provided that any
specific monetary amount stated in this Agreement shall determine materiality in
that instance.
"MATERIAL ADVERSE EFFECT" on a Party shall mean an event, change or
occurrence which has a material adverse impact on (a) the financial position,
business, or results of operations of such Party and its Subsidiaries, taken as
a whole, or (b) the ability of such Party to perform its obligations under this
Agreement or to consummate the Merger or the other transactions contemplated by
this
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Agreement, provided that "material adverse impact" shall not be deemed to
include the impact of (w) changes in banking and similar Laws of general
applicability or interpretations thereof by courts or governmental authorities,
(x) changes in GAAP or regulatory accounting principles generally applicable to
banks and their holding companies, (y) actions and omissions of a Party (or any
of its Subsidiaries) taken with the prior informed consent of the other Party in
contemplation of the transactions contemplated hereby, or (z) the Merger and
compliance with the provisions of this Agreement on the operating performance of
the Parties.
"MERGER" shall mean the merger of Central and Southern with and into
Premier referred to in Section 1.1 of this Agreement.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"ORDER" shall mean any administrative decision or award, decree,
injunction, judgment, order, quasi-judicial decision or award, ruling, or writ
of any federal, state, local or foreign or other court, arbitrator, mediator,
tribunal, administrative agency or Regulatory Authority.
"PARTICIPATION FACILITY" shall mean any facility or property in which
the Party in question or any of its Subsidiaries participates in the management
(including any property or facility held in a joint venture) and, where required
by the context, said term means the owner or operator of such facility or
property, but only with respect to such facility or property.
"PARTY" shall mean either Premier or Central and Southern, and
"Parties" shall mean both Premier and Central and Southern.
"PERMIT" shall mean any federal, state, local, and foreign
governmental approval, authorization, certificate, easement, filing, franchise,
license, notice, permit, or right to which any Person is a party or that is or
may be binding upon or inure to the benefit of any Person or its securities,
Assets, Liabilities, or business.
"PERSON" shall mean a natural person or any legal, commercial or
governmental entity, such as, but not limited to, a corporation, general
partnership, joint venture, limited partnership, limited liability company,
trust, business association, group acting in concert, or any person acting in a
representative capacity.
"PREMIER BANK" shall mean First Alliance Bank, a Georgia state-
chartered bank and a Premier Subsidiary.
"PREMIER BENEFIT PLANS" shall have the meaning set forth in Section
6.14 of this Agreement.
"PREMIER COMMON STOCK" shall mean the $1.00 par value common stock of
Premier.
"PREMIER COMPANIES" shall mean, collectively, Premier and all Premier
Subsidiaries.
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"PREMIER DISCLOSURE MEMORANDUM" shall mean the written information
---------------------
entitled "Premier Disclosure Memorandum" delivered on or prior to the date of
---------------------
this Agreement to Central and Southern describing in reasonable detail the
matters contained therein and, with respect to each disclosure made therein,
specifically referencing each Section of this Agreement under which such
disclosure is being made.
"PREMIER FINANCIAL STATEMENTS" shall mean (a) the consolidated balance
sheets (including related notes and schedules, if any) of Premier as of
September 30, 1996, and as of December 31, 1995 and 1994, and the related
statements of income, changes in shareholders' equity, and cash flows (including
related notes and schedules, if any) for the nine months ended September 30,
1996, and for each of the two years ended December 31, 1995 and 1994, as filed
by Premier in SEC Documents and (b) the consolidated balance sheets (including
related notes and schedules, if any) of Premier and related statements of
income, changes in shareholders' equity, and cash flows (including related notes
and schedules, if any) included in SEC Documents filed with respect to periods
ended subsequent to September 30, 1996.
"PREMIER STOCK PLANS" shall mean the existing stock option and other
stock-based compensation plans.
"PREMIER SUBSIDIARIES" shall mean the Subsidiaries of Premier at the
Effective Time.
"PROXY STATEMENT" shall mean (a) the proxy statement used by Central
and Southern to solicit the approval of its shareholders of the transactions
contemplated by this Agreement and (b) the proxy statement used by Premier to
solicit the approval of its shareholders of the transactions contemplated by
this Agreement, both of which shall be included in the prospectus of the
Surviving Corporation relating to shares of Surviving Corporation Common Stock
to be issued to the shareholders of Central and Southern.
"REGISTRATION STATEMENT" shall mean the Registration Statement on Form
S-4, or other appropriate form, filed with the SEC by Premier under the 1933 Act
with respect to the shares of Surviving Corporation Common Stock to be issued to
the shareholders of Central and Southern in connection with the transactions
contemplated by this Agreement and which shall include the Proxy Statements.
"REGULATORY AUTHORITIES" shall mean, collectively, the Federal Trade
Commission, the United States Department of Justice, the Board of the Governors
of the Federal Reserve System, the Office of Thrift Supervision (including its
predecessor, the Federal Home Loan Bank Board), the Office of the Comptroller of
the Currency, the Federal Deposit Insurance Corporation, all state regulatory
agencies having jurisdiction over the Parties and their respective Subsidiaries,
the NASD and the SEC.
"RIGHTS" shall mean all arrangements, calls, commitments, Contracts,
options, rights to subscribe to, scrip, understandings, warrants or other
binding obligations of any character
A-52
whatsoever relating to, or securities or rights convertible into or exchangeable
for, shares of the capital stock of a Person or by which a Person is or may be
bound to issue additional shares of its capital stock or other Rights.
"SEC" shall mean the United States Securities and Exchange Commission.
"SEC DOCUMENTS" shall mean all forms, proxy statements, registration
statements, reports, schedules and other documents filed, or required to be
filed, by a Party or any of its Subsidiaries with any Regulatory Authority
pursuant to the Securities Laws.
"SECURITIES LAWS" shall mean the 1933 Act, the 1934 Act, the
Investment Company Act of 1940, as amended, the Investment Advisors Act of 1940,
as amended, the Trust Indenture Act of 1939, as amended, and the rules and
regulations of any Regulatory Authority promulgated thereunder.
"SHAREHOLDERS' MEETING" shall mean the meeting of the shareholders of
Central and Southern or the meeting of the shareholders of Premier to be held
pursuant to Section 8.1 of this Agreement, including any adjournment or
adjournments thereof.
"SUBSIDIARIES" shall mean all those corporations, banks, associations
or other entities of which the entity in question owns or controls 50% or more
of the outstanding equity securities either directly or through an unbroken
chain of entities as to each of which 50% or more of the outstanding equity
securities is owned directly or indirectly by its parent; provided, however,
there shall not be included any such entity acquired through foreclosure or any
such entity the equity securities of which are owned or controlled in a
fiduciary capacity.
"SURVIVING CORPORATION" shall mean Premier as the surviving
corporation resulting from the Merger to be known as Premier Bancshares, Inc.
"SURVIVING CORPORATION COMMON STOCK" shall mean the $1.00 par value
common stock of the Surviving Corporation.
"TAX" OR "TAXES" shall mean any federal, state, county, local or
foreign income, profits, franchise, gross receipts, payroll, sales, employment,
use, property, withholding, excise, occupancy and other taxes, assessments,
charges, fares or impositions, including interest, penalties and additions
imposed thereon or with respect thereto.
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."
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11.2 EXPENSES.
--------
(a) Except as otherwise provided in this Section 11.2, each of the
Parties shall bear and pay all direct costs and expenses incurred by it or on
its behalf in connection with the transactions contemplated hereunder, including
filing, registration and application fees, printing fees, and fees and expenses
of its own financial or other consultants, investment bankers, accountants and
counsel, except that each of the Parties shall bear and pay (i) one-half of the
filing fees payable in connection with the Registration Statement and the
applications filed with other Regulatory Authorities, and (ii) one-half of the
costs incurred in connection with the printing or copying of the Proxy
Statements.
(b) Notwithstanding the provisions of Section 11.2(a) of this
Agreement, if for any reason this Agreement is terminated pursuant to Sections
10.1(b) or 10.1(c) of this Agreement, the breaching Party agrees to pay the non-
breaching Party (i) an amount equal to the reasonable and documented fees and
expenses incurred by such non-breaching Party in connection with the examination
and investigation of the breaching Party, the preparation and negotiation of
this Agreement and related agreements, regulatory filings and other documents
related to the transactions contemplated hereunder, including, without
limitation, fees and expenses of investment banking consultants, accountants,
attorneys and other agents and (ii) (x) $50,000 if the breach is not willful or
(y) $150,000 if the breach is willful or this Agreement is terminated in
contemplation of an Acquisition Proposal, which sums represent compensation for
the non-breaching Party's loss as a result of the transaction contemplated by
this Agreement not being consummated. Final settlement with respect to payment
of such fees and expenses shall be made within thirty (30) days after the
termination of this Agreement. This Section 11.2(b) shall be the non-breaching
Party's sole and exclusive remedy for actionable breach by the breaching Party
under this Agreement.
11.3 BROKERS AND FINDERS. Each of the Parties represents and
-------------------
warrants that neither it nor any of its officers, directors, employees or
Affiliates has employed any broker or finder or incurred any Liability for any
financial advisory fees, investment bankers' fees, brokerage fees, commissions,
or finders' fees in connection with this Agreement or the transactions
contemplated hereby, other than ▇▇▇▇▇, ▇▇▇▇▇ Capital Partners, Inc. employed by
Premier. In the event of a claim by any broker or finder based upon his or its
representing or being retained by or allegedly representing or being retained by
Premier or Central and Southern, each of Premier and Central and Southern, 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.
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. Nothing in this Agreement
expressed or implied, is intended to confer upon any Person, other than the
Parties or their respective successors, any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, other than as provided in
Section 8.10 and Section 8.13 of this Agreement.
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11.5 AMENDMENTS. To the extent permitted by Law, this Agreement may
----------
amended by a subsequent writing signed by each of the Parties upon the approval
of the Boards of Directors of each of the Parties; provided, however, that after
any such approval by the holders of Premier Common Stock or Central and Southern
Common Stock, there shall be made no amendment that pursuant to the GBCC
requires further approval by such shareholders without the further approval of
such shareholders.
11.6 WAIVERS.
-------
(a) Prior to or at the Effective Time, Premier, acting through its
Board of Directors, chief executive officer or other authorized officer, shall
have the right to waive any Default in the performance of any term of this
Agreement by Central and Southern, to waive or extend the time for the
compliance or fulfillment by Central and Southern of any and all of its
obligations under this Agreement, and to waive any or all of the conditions
precedent to the obligations of Premier under this Agreement, except any
condition which, if not satisfied, would result in the violation of any Law. No
such waiver shall be effective unless in writing signed by a duly authorized
officer of Premier.
(b) Prior to or at the Effective Time, Central and Southern, acting
through its Board of Directors, chief executive officer or other authorized
officer, shall have the right to waive any Default in the performance of any
term of this Agreement by Premier, to waive or extend the time for the
compliance or fulfillment by Premier of any and all of its obligations under
this Agreement, and to waive any or all of the conditions precedent to the
obligations of Central and Southern 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 Central and Southern.
(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.
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.
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, or by
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courier or overnight carrier, to the persons at the addresses set forth below
(or at such other address as may be provided hereunder), and shall be deemed to
have been delivered as of the date so delivered:
Premier: First Alliance/Premier Bancshares, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman and CEO
Copy to Counsel: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC
Suite 700
1275 Peachtree Street, N.E.
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Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Central & Southern: Central and Southern Holding Company
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Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and CEO
Copy to Counsel: ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLC
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Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
11.9 GOVERNING LAW. This Agreement shall be governed by and
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construed in accordance with the Laws of the State of Georgia, without regard to
any applicable conflicts of Laws, except to the extent that the federal laws of
the United States may apply to the Merger.
11.10 COUNTERPARTS. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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11.11 CAPTIONS. The captions contained in this Agreement are for
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reference purposes only and are not part of this Agreement.
11.12 ENFORCEMENT OF AGREEMENT. The Parties hereto agree that
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irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the Parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
11.13 SEVERABILITY. Any term or provision of this Agreement which
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is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, each of the Parties has caused this Agreement to
be executed on its behalf and its corporate seal to be hereunto affixed and
attested by officers thereunto as of the day and year first above written.
ATTEST: FIRST ALLIANCE/PREMIER BANCSHARES, INC.
/s/ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Secretary ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman and CEO
[CORPORATE SEAL]
ATTEST: CENTRAL AND SOUTHERN HOLDING COMPANY
/s/ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Secretary ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and CEO
[CORPORATE SEAL]
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EXHIBIT 1
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AFFILIATE AGREEMENT
First Alliance/Premier Bancshares, Inc.
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Central and Southern Holding Company
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Gentlemen:
The undersigned is a shareholder of Central and Southern Holding
Company ("Central and Southern"), a corporation organized and existing under the
laws of the State of Georgia, and will become a shareholder of First
Alliance/Premier Bancshares, Inc. ("Premier" or the "Surviving Corporation")
pursuant to the transactions described in the Agreement and Plan of
Reorganization, dated as of February 3, 1997 (the "Agreement"), by and between
Central and Southern and Premier. Under the terms of the Agreement, Premier and
Central and Southern will be merged (the "Merger") and the shares of common
stock of Central and Southern ("Central and Southern Common Stock") will be
converted into shares of common stock of the Surviving Corporation ("Surviving
Corporation Common Stock"). This Affiliate Agreement represents an agreement
between the undersigned and the Surviving Corporation regarding certain rights
and obligations of the undersigned in connection with the shares of the
Surviving Corporation to be received by the undersigned as a result of the
Merger.
In consideration of the Merger and the mutual covenants contained
herein, the undersigned and the Surviving Corporation hereby agree as follows:
Affiliate Status. The undersigned understands and agrees that as to
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Central and Southern the undersigned is an "affiliate" under Rule 145(c) as
defined in Rule 405 of the Rules and Regulations of the Securities and Exchange
Commission ("SEC") under the Securities Act of 1933, as amended ("1933 Act"),
and the undersigned anticipates that the undersigned will be such an "affiliate"
at the time of the Merger.
Initial Restriction on Disposition. The undersigned agrees that the
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undersigned will not, except by operation of law, by will or under the laws of
descent and distribution, sell, transfer, or otherwise dispose of the
undersigned's interests in, or reduce the undersigned's risk relative to,
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any of the shares of the Surviving Corporation Common Stock into which the
undersigned's shares of Central and Southern Common Stock are converted upon
consummation of the Merger until such time as the Surviving Corporation notifies
the undersigned that the requirements of SEC Accounting Series Release Nos. 130
and 135 ("ASR 130 and 135") have been met. The undersigned understands that ASR
130 and 135 relate to publication of financial results of post-Merger combined
operations of the Surviving Corporation and Central and Southern. The Surviving
Corporation agrees that it will publish such results within 45 days after the
end of the first fiscal quarter of the Surviving Corporation containing the
required period of post-Merger combined operations and that it will notify the
undersigned promptly following such publication.
Covenants and Warranties of Undersigned. The undersigned represents,
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warrants and agrees that:
(a) During the 30 days immediately preceding the effective time of the
Merger, the undersigned will not, except by operation of law, by will, or under
the laws of descent and distribution, sell, transfer, or otherwise dispose of
the undersigned's interests in, or reduce the undersigned's risk relative to,
any of the shares of Central and Southern Common Stock beneficially owned by the
undersigned as of the date of the shareholders' meeting of Central and Southern
held to approve the merger.
(b) The Surviving Corporation Common Stock received by the undersigned
as a result of the Merger will be taken for the undersigned's own account and
not for others, directly or indirectly, in whole or in part.
(c) The undersigned understands that any distribution by the
undersigned of the Surviving Corporation Common Stock has not been registered
under the 1933 Act and that shares of the Surviving Corporation Common Stock
received pursuant to the Merger can only be sold by the undersigned (1)
following registration under the 1933 Act, or (2) in conformity with the volume
and other requirements of Rule 145(d) promulgated by the SEC as the same now
exist or may hereafter be amended, or (3) to the extent some other exemption
from registration under the 1933 Act might be available. The undersigned
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understands that the Surviving Corporation is under no obligation to file a
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registration statement with the SEC covering the disposition of the
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undersigned's shares of the Surviving Corporation Common Stock.
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(d) The undersigned is aware that the Merger is to be treated as a
tax-free reorganization under Section 368 of the Internal Revenue Code ("Code")
for federal income tax purposes. The undersigned agrees to treat the
transaction in the same manner for federal income tax purposes. The undersigned
acknowledges that Section 1.368-1(b) of the Income Tax Regulations requires
"continuity of interest" in order for the Merger to be treated as tax-free under
Section 368 of the Code. This requirement is satisfied if, taking into account
those who dissent from the Merger, there is no plan or intention on the part of
the Central and Southern shareholders to sell or otherwise dispose of the
Surviving Corporation
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Common Stock to be received in the Merger that will reduce such shareholders'
ownership to a number of shares having, in the aggregate, a value at the time of
the Merger of less than 50% of the total fair market value of the Central and
Southern Common Stock outstanding immediately prior to the Merger. The
undersigned has no prearrangement, plan or intention to sell or otherwise
dispose of an amount of the undersigned's Surviving Corporation Common Stock to
be received in the Merger which would cause the foregoing requirement not to be
satisfied.
4. Restrictions on Transfer. The undersigned understands and agrees
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that stop transfer instructions with respect to the shares of the Surviving
Corporation Common Stock received by the undersigned pursuant to the Merger will
be given to the Surviving Corporation's transfer agent and that there will be
placed on the certificates for such shares, or shares issued in substitution
thereof, a legend stating in substance:
"The shares represented by this certificate were issued pursuant to a
business combination which is accounted for as a "pooling of interests" and
may not be sold, nor may the owner thereof reduce his risks relative
thereto in any way, until such time as the Surviving Corporation has
published the financial results covering at least 30 days of combined
operations after the effective date of the merger through which the
business combination was effected. In addition, the shares represented by
this certificate may not be sold, transferred or otherwise disposed of
except or unless (a) covered by an effective registration statement under
the Securities Act of 1933, as amended, (b) in accordance with (i) Rule
145(d) (in the case of shares issued to an individual who is not an
affiliate of the Surviving Corporation) or (ii) Rule 144 (in the case of
shares issued to an individual who is an affiliate of the Surviving
Corporation) of the Rules and Regulations of such Act, or (c) in accordance
with a legal opinion satisfactory to counsel for the Surviving Corporation
that such sale or transfer is otherwise exempt from the registration
requirements of such Act."
Such legend will also be placed on any certificate representing the Surviving
Corporation securities issued subsequent to the original issuance of the
Surviving Corporation Common Stock pursuant to the Merger as a result of any
stock dividend, stock split or other recapitalization as long as the Surviving
Corporation Common Stock issued to the undersigned pursuant to the Merger has
not been transferred in such manner to justify the removal of the legend
therefrom. If the provisions of Rules 144 and 145 are amended to eliminate
restrictions applicable to the Surviving Corporation Common Stock received by
the undersigned pursuant to the Merger, or at the expiration of the restrictive
period set forth in Rule 145(d), the Surviving Corporation, upon the request of
the undersigned, will cause the certificates representing the shares of the
Surviving Corporation Common Stock issued to the undersigned in connection with
the Merger to be reissued free of any legend relating to the restrictions set
forth in Rules 144 and 145(d) upon receipt by the Surviving Corporation of an
opinion of its counsel to the effect that such legend may be removed.
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5. Understanding of Restrictions on Dispositions. The undersigned
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has carefully read the Agreement and this Affiliate Agreement and discussed
their requirements and impact upon his or her ability to sell, transfer or
otherwise dispose of the shares of the Surviving Corporation Common Stock
received by the undersigned, to the extent the undersigned believes necessary,
with the undersigned's counsel or counsel for Central and Southern.
6. Filing of Reports by the Surviving Corporation. The Surviving
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Corporation agrees, for a period of three years after the effective date of the
Merger, to file on a timely basis all reports required to be filed by it
pursuant to Section 13 of the Securities Exchange Act of 1934, as amended, so
that the public information provisions of Rule 145(d) promulgated by the SEC as
the same are presently in effect will be available to the undersigned in the
event the undersigned desires to transfer any shares of the Surviving
Corporation Common Stock issued to the undersigned pursuant to the Merger.
7. Transfer Under Rule 145(d). If the undersigned desires to sell or
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otherwise transfer the shares of the Surviving Corporation Common Stock received
by the undersigned in connection with the Merger at any time during the
restrictive period set forth in Rule 145(d), the undersigned will provide the
necessary representation letter to the transfer agent for the Surviving
Corporation Common Stock together with such additional information as the
transfer agent may reasonably request. If the Surviving Corporation's counsel
concludes that such proposed sale or transfer complies with the requirements of
Rule 145(d), the Surviving Corporation shall cause such counsel to provide such
opinions as may be necessary to the Surviving Corporation's transfer agent so
that the undersigned may complete the proposed sale or transfer.
8. Acknowledgments. The undersigned recognizes and agrees that the
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foregoing provisions also apply to (a) the undersigned's spouse, (b) any
relative of the undersigned or of the undersigned's spouse who has the same home
as the undersigned, (c) any trust or estate in which the undersigned, the
undersigned's spouse, and any such relative collectively own at least a 10%
beneficial interest or of which any of the foregoing serves as trustee, executor
or in any similar capacity and (d) any corporation or other organization in
which the undersigned, the undersigned's spouse and any such relative
collectively own at least 10% of any class of equity securities or of the equity
interest. The undersigned further recognizes that, in the event that the
undersigned is a director or officer of the Surviving Corporation or becomes a
director or officer of the Surviving Corporation upon consummation of the
Merger, among other things, any sale of the Surviving Corporation Common Stock
by the undersigned within a period of less than six months following the
effective time of the Merger may subject the undersigned to liability pursuant
to Section 16(b) of the Securities Exchange Act of 1934, as amended.
9. Miscellaneous. This Affiliate Agreement is the complete agreement
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between the Surviving Corporation and the undersigned concerning the subject
matter hereof. Any notice required to be sent to any party hereunder shall be
sent by registered or certified mail, return receipt requested, using the
addresses set forth herein or such other address as shall be furnished in
writing by the parties. This Affiliate Agreement shall be governed by the laws
of the State of Georgia.
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This Affiliate Agreement is executed as of the _____ day of
_______________, 1997.
Very truly yours,
___________________________________
Signature
___________________________________
Print Name
AGREED TO AND ACCEPTED as of
______________________, 1997
FIRST ALLIANCE/PREMIER BANCSHARES, INC.
By:_____________________________
AGREED TO AND ACCEPTED as of
______________________, 1997
CENTRAL AND SOUTHERN HOLDING COMPANY
By:_____________________________
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EXHIBIT 2
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MATTERS AS TO WHICH
COUNSEL TO CENTRAL AND SOUTHERN WILL OPINE*
1. Central and Southern is a corporation duly organized, existing and
in good standing under the laws of the State of Georgia with corporate power and
authority to conduct its business as now conducted and to own and use its
Assets.
2. Central and Southern's authorized capital stock consists of
____________ shares of Central and Southern Common Stock, of which ____________
shares were outstanding as of the date hereof. The outstanding shares of
Central and Southern Common Stock are duly authorized, validly issued, fully
paid and nonassessable. None of the outstanding shares of Central and Southern
Common Stock has been issued in violation of any statutory preemptive rights.
Except as disclosed in Central and Southern's Disclosure Memorandum dated
____________________, 1997, to our knowledge, there are no options,
subscriptions, warrants, calls, rights or commitments obligating Central and
Southern to issue equity securities or acquire its equity securities.
3. The execution and delivery by Central and Southern of the
Agreement do not, and if Central and Southern were now to perform its
obligations under the Agreement such performance would not, result in any
violation of the Articles of Incorporation or Bylaws of any Central and Southern
Company, or, to our knowledge, result in any breach of, or default or
acceleration under, any material Contract or Order to which a Central and
Southern Company is a party or by which a Central and Southern Company is bound.
4. Central and Southern has duly authorized the execution and
delivery of the Agreement and all performance by Central and Southern thereunder
and has duly executed and delivered the Agreement.
5. The Agreement is enforceable against Central and Southern.
______________________________
*Pursuant to the January 1, 1992 edition of the Interpretive Standards
Applicable to Legal Opinions to Third Parties in Corporate Transactions adopted
by the Legal Opinion Committee of the Corporate and Banking Law Section of the
State Bar of Georgia.
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EXHIBIT 3
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CLAIMS/INDEMNIFICATION LETTER
_______________________, 1997
First Alliance/Premier Bancshares, Inc.
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Ladies and Gentlemen:
This letter is delivered pursuant to Section 9.2(e) of the Agreement
and Plan of Merger (the "Agreement"), dated as of February 3, 1997, by and
between Central and Southern Holding Company ("Central and Southern ") and First
Alliance/Premier Bancshares, Inc. ("Premier") which provides for the merger (the
"Merger") of Central and Southern and Premier.
Concerning claims which I may have against Central and Southern or its
wholly-owned subsidiaries, The Central and Southern Bank of Georgia and The
Central and Southern Bank of North Georgia, F.S.B., in my capacity as an officer
or director:
(a) Premier shall assume all liability (to the extent Central and
Southern was so liable) for claims for indemnification arising under Central and
Southern's Articles of Incorporation or Bylaws or under any indemnification
contract disclosed to Premier, as existing on February 3, 1997, and for claims
for salaries, wages or other compensation, employee benefits, reimbursement of
expenses, or worker's compensation arising out of employment through the
effective time of the Merger;
(b) The Central and Southern Bank of Georgia and The Central and
Southern Bank of North Georgia, F.S.B., shall retain all liability (to the
extent they were so liable) for claims for indemnification arising under their
respective Articles of Incorporation or Bylaws as existing on February 3, 1997,
and for claims for salaries, wages, or other compensation, employee benefits,
reimbursement of expenses, or worker's compensation arising out of employment
through the effective time of the Merger;
(c) In my capacity as an officer or a director, I am not aware that I
have any claims (other than those referred to in paragraphs (a) or (b) above)
against Central and Southern, The Central and Southern Bank of Georgia or The
Central and Southern Bank of North Georgia, F.S.B. (other than routine deposit,
loan and other banking services conducted in the ordinary course of business
with Central and Southern, The Central and Southern Bank of Georgia or The
Central and Southern Bank of North Georgia, F.S.B.; and
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(d) I hereby release Central and Southern, The Central and Southern
Bank of Georgia and The Central and Southern Bank of North Georgia, F.S.B., from
any and all claims which I am aware that I have against any of them in my
capacity as an officer or a director, other than those referred to in paragraphs
(a) or (b) above.
By executing this letter on behalf of Premier, you shall acknowledge
the assumption by Premier of the liabilities described in paragraphs (a) and (b)
above.
Sincerely,
__________________________________
Signature of Officer or Director
__________________________________
Printed Name of Officer or Director
On behalf of Premier, I hereby acknowledge receipt of this letter and
affirm the assumption by Premier of the liabilities described in paragraph (a)
and (b) above, as of this _____ day of _______________, 1997.
FIRST ALLIANCE/PREMIER BANCSHARES, INC.
By: ______________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman and CEO
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EXHIBIT 4
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MATTERS AS TO WHICH
COUNSEL TO PREMIER WILL OPINE*
1. Premier is a corporation duly organized, existing and in good
standing under the laws of the State of Georgia with corporate power and
authority to conduct its business as now conducted and to own and use its
Assets.
2. Premier's authorized capital stock consists of 20,000,000 shares
of Premier Common Stock, of which ______ shares were outstanding as of the date
hereof. The outstanding shares of Premier Common Stock are, and all of the
shares of Surviving Corporation Common Stock to be issued in exchange for
Central and Southern Common Stock upon consummation of the Merger, when issued
in accordance with the terms of the Agreement, will be, duly authorized, validly
issued, fully paid and nonassessable. None of the outstanding shares of Premier
Common Stock has been, and none of the shares of Surviving Corporation Common
Stock to be issued in exchange for shares of Central and Southern Common Stock
upon consummation of the Merger will be, issued in violation of any statutory
preemptive rights. Except as disclosed in Premier's Disclosure Memorandum dated
_______________, 1997, to our knowledge, there are no options, subscriptions,
warrants, calls, rights or commitments obligating Premier to issue equity
securities or acquire its equity securities.
3. The execution and delivery by Premier of the Agreement do not,
and if Premier were now to perform its obligations under the Agreement such
performance would not, result in any violation of the Articles of Incorporation
or Bylaws of any Premier Company, or, to our knowledge, result in any breach of,
or default or acceleration under, any material Contract or Order to which a
Premier Company is a party or by which a Premier Company is bound.
4. Premier has duly authorized the execution and delivery of the
Agreement and all performance by Premier thereunder and has duly executed and
delivered the Agreement.
5. The Agreement is enforceable against Premier.
______________________________
*Pursuant to the January 1, 1992 edition of the Interpretive Standards
Applicable to Legal Opinions to Third Parties in Corporate Transactions adopted
by the Legal Opinion Committee of the Corporate and Banking Law Section of the
State Bar of Georgia.
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