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EXHIBIT 2(A)
AGREEMENT AND PLAN OF MERGER
OF
SECURITYBANK TEXAS
AND
SOUTHTRUST BANK OF TEXAS
JOINED IN BY
SOUTHTRUST CORPORATION
AND
SOUTHTRUST OF ALABAMA, INC.
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TABLE OF CONTENTS
LIST OF DISCLOSURE SCHEDULES............................................................................vi
LIST OF EXHIBITS.......................................................................................vii
ARTICLE I
THE MERGER
Section 1.1 Consummation of Merger; Closing Date...................................................3
Section 1.2 Effect of Merger.......................................................................3
Section 1.3 Further Assurances.....................................................................4
Section 1.4 Directors and Officers.................................................................4
Section 1.5 Voting Agreement and Irrevocable Proxy.................................................4
Section 1.6 Employment Agreement...................................................................4
ARTICLE II
CONVERSION OF CONSTITUENTS' CAPITAL SHARES
Section 2.1 Manner of Conversion of the Bank Shares................................................4
Section 2.2 Fractional Shares......................................................................6
Section 2.3 Effectuating Conversion................................................................6
Section 2.4 Laws of Escheat........................................................................8
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BANK
Section 3.1 Corporate Organization.................................................................8
Section 3.2 Capitalization.........................................................................9
Section 3.3 Financial Statements; Filings..........................................................9
Section 3.4 Loan Portfolio; Reserves..............................................................10
Section 3.5 Certain Loans and Related Matters.....................................................11
Section 3.6 Authority; No Violation...............................................................11
Section 3.7 Consents and Approvals................................................................12
Section 3.8 Broker's Fees.........................................................................12
Section 3.9 Absence of Certain Changes or Events..................................................12
Section 3.10 Legal Proceedings; Etc................................................................12
Section 3.11 Taxes and Tax Returns.................................................................13
Section 3.12 Employee Benefit Plans................................................................14
Section 3.13 Title and Related Matters.............................................................15
Section 3.14 Real Estate...........................................................................15
Section 3.15 Environmental Matters.................................................................16
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Section 3.16 Commitments and Contracts.............................................................17
Section 3.17 Accounting, Tax and Regulatory Matters................................................17
Section 3.18 Registration Obligations..............................................................18
Section 3.19 State Takeover Laws...................................................................18
Section 3.20 Insurance.............................................................................18
Section 3.21 Labor.................................................................................18
Section 3.22 Compliance with Laws..................................................................18
Section 3.23 Transactions with Management..........................................................19
Section 3.24 Derivative Contracts..................................................................19
Section 3.25 Deposits..............................................................................19
Section 3.26 Accounting Controls...................................................................19
Section 3.27 Deposit Insurance.....................................................................19
Section 3.28 Information Statement and Regulatory Filings..........................................19
Section 3.29 Untrue Statements and Omissions.......................................................20
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF SOUTHTRUST AND ST-BANK
Section 4.1 Organization and Related Matters of SouthTrust........................................20
Section 4.2 Organization and Related Matters of ST-Bank...........................................21
Section 4.3 Capitalization........................................................................21
Section 4.4 Authorization.........................................................................21
Section 4.5 Financial Statements..................................................................22
Section 4.6 Absence of Certain Changes or Events..................................................22
Section 4.7 Legal Proceedings, Etc................................................................22
Section 4.8 Insurance.............................................................................23
Section 4.9 Consents and Approvals................................................................23
Section 4.10 Accounting, Tax, Regulatory Matters...................................................23
Section 4.11 Information Statement and Regulatory Filings..........................................23
Section 4.12 No Broker's or Finder's Fees..........................................................23
Section 4.13 SEC Filings...........................................................................23
Section 4.14 Compliance with Laws..................................................................24
Section 4.15 Untrue Statements and Omissions.......................................................24
ARTICLE V
COVENANTS AND AGREEMENTS
Section 5.1 Conduct of the Business of the Bank...................................................24
Section 5.2 Current Information...................................................................26
Section 5.3 Access to Properties; Personnel and Records...........................................27
Section 5.4 Approval of the Bank Shareholders.....................................................28
Section 5.5 No Other Bids.........................................................................28
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Section 5.6 Affiliates............................................................................28
Section 5.7 Maintenance of Properties.............................................................28
Section 5.8 Environmental Audits..................................................................29
Section 5.9 Title Insurance.......................................................................29
Section 5.10 Surveys...............................................................................29
Section 5.11 Consent to Assign and Use Leased Premises.............................................29
Section 5.12 Conforming Accounting and Reserve Policies and Accruals...............................29
Section 5.13 Publicity.............................................................................29
Section 5.14 Compliance Matters....................................................................30
Section 5.15 Exemption Under Anti-Takeover Statutes................................................30
Section 5.16 Bonuses...............................................................................30
ARTICLE VI
ADDITIONAL COVENANTS AND AGREEMENTS
Section 6.1 Best Efforts; Cooperation.............................................................31
Section 6.2 Regulatory Matters....................................................................31
Section 6.3 Other Matters.........................................................................31
Section 6.4 Indemnification.......................................................................32
Section 6.5 Current Information...................................................................34
Section 6.6 Registration Statements...............................................................34
Section 6.7 Reservation of Shares.................................................................34
Section 6.8 Consideration.........................................................................34
ARTICLE VII
MUTUAL CONDITIONS TO CLOSING
Section 7.1 Shareholder Approval..................................................................35
Section 7.2 Regulatory Approvals..................................................................35
Section 7.3 Litigation............................................................................35
Section 7.4 Registration Statement................................................................35
ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS OF
SOUTHTRUST, ST-SUB AND ST-BANK
Section 8.1 Representations and Warranties........................................................35
Section 8.2 Performance of Obligations............................................................36
Section 8.3 Certificate Representing Satisfaction of Conditions...................................36
Section 8.4 Certified Resolutions.................................................................36
Section 8.5 Absence of Adverse Facts..............................................................36
Section 8.6 Opinion of Counsel....................................................................36
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Section 8.7 Consents Under Agreements.............................................................36
Section 8.8 Consents Relating to Leased Real Property.............................................36
Section 8.9 Material Condition....................................................................36
Section 8.10 Dissenters............................................................................37
Section 8.11 Increase in Borrowing.................................................................37
Section 8.12 Pooling...............................................................................37
ARTICLE IX
CONDITIONS TO OBLIGATIONS OF THE BANK
Section 9.1 Representations and Warranties........................................................37
Section 9.2 Performance of Obligations............................................................37
Section 9.3 Certificate Representing Satisfaction of Conditions...................................37
Section 9.5 Absence of Adverse Facts..............................................................38
Section 9.6 Consents Under Agreements.............................................................38
Section 9.7 Opinion of Counsel....................................................................38
Section 9.8 SouthTrust Shares.....................................................................38
Section 9.9 Tax Opinion...........................................................................38
ARTICLE X
TERMINATION, WAIVER AND AMENDMENT
Section 10.1 Termination...........................................................................38
Section 10.2 Effect of Termination.................................................................39
Section 10.3 Amendments............................................................................39
Section 10.4 Waivers...............................................................................39
Section 10.5 Non-Survival of Representations and Warranties........................................40
ARTICLE XI
MISCELLANEOUS
Section 11.1 Entire Agreement......................................................................40
Section 11.2 Definitions...........................................................................40
Section 11.3 Notices...............................................................................41
Section 11.4 Severability..........................................................................42
Section 11.5 Costs and Expenses....................................................................42
Section 11.6 Captions..............................................................................43
Section 11.7 Counterparts..........................................................................43
Section 11.8 Governing Law.........................................................................43
Section 11.9 Persons Bound; No Assignment..........................................................43
Section 11.10 Exhibits and Schedules................................................................43
Section 11.11 Waiver................................................................................43
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Section 11.12 Construction of Terms.................................................................43
Section 11.13 Arbitration...........................................................................44
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AGREEMENT AND PLAN OF MERGER
OF
SECURITYBANK TEXAS
AND
SOUTHTRUST BANK OF TEXAS
LIST OF DISCLOSURE SCHEDULES
Disclosure Schedule 1.5: Shareholders of the Bank
Disclosure Schedule 3.4: Loan Portfolio; Reserves
Disclosure Schedule 3.5: Certain Loans and Related Matters
Disclosure Schedule 3.7: Consents and Approvals
Disclosure Schedule 3.10: Legal Proceedings
Disclosure Schedule 3.11: Taxes and Tax Returns
Disclosure Schedule 3.12(a): Employee Benefit Plans
Disclosure Schedule 3.13(a): Title to Assets and Properties
Disclosure Schedule 3.13(b): Title to Leases
Disclosure Schedule 3.14(a): Real Estate
Disclosure Schedule 3.14(b): Leases and Subleases
Disclosure Schedule 3.14(c): Consents to Assign Leases and Subleases
Disclosure Schedule 3.16(a): Commitments and Contracts
Disclosure Schedule 3.16(b): Events of Default
Disclosure Schedule 3.16(c): Deadlines for Extensions or Terminations of Material
Contracts of the Bank
Disclosure Schedule 3.20: Insurance Policies
Disclosure Schedule 3.22: Compliance with Laws
Disclosure Schedule 3.23: Transactions with Management
Disclosure Schedule 3.24: Derivative Contracts
Disclosure Schedule 3.25: Deposits
Disclosure Schedule 4.4: Authorization
Disclosure Schedule 4.7: Legal Proceedings
Disclosure Schedule 4.9: Consents and Approvals
Disclosure Schedule 4.14: Compliance with Laws
Disclosure Schedule 5.1(b)(iv): Permitted Capital Expenditures
Disclosure Schedule 5.1(b)(v): Permitted Disposals of Property Interests
Disclosure Schedule 5.1(b)(vi): Permitted Bonuses
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AGREEMENT AND PLAN OF MERGER
OF
SECURITYBANK TEXAS
AND
SOUTHTRUST BANK OF TEXAS
LIST OF EXHIBITS
Exhibit 1.5: Voting Agreement and Irrevocable Proxy
Exhibit 5.6: Form of Affiliate Letter
Exhibit 8.6: Matters as to which Jenkens & ▇▇▇▇▇▇▇▇▇, P.C., Counsel to the
Bank, will opine
Exhibit 9.7: Matters as to which ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rose & White LLP, Counsel to
SouthTrust, ST-Sub and ST-Bank, will opine
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AGREEMENT AND PLAN OF MERGER
OF
SECURITYBANK TEXAS
AND
SOUTHTRUST BANK OF TEXAS
JOINED IN BY
SOUTHTRUST CORPORATION
AND
SOUTHTRUST OF ALABAMA, INC.
This AGREEMENT AND PLAN OF MERGER, dated as of the ___________
day of _____________ , 1998 (this "Agreement"), by and between Security Bank
Texas, a Texas banking corporation (the "Bank"), and SouthTrust Bank of Texas,
a Texas banking corporation ("ST-Bank") which itself is a wholly-owned
subsidiary of SouthTrust of Alabama, Inc., an Alabama corporation and
wholly-owned subsidiary of SouthTrust (as defined herein) ("ST-Sub"), and
joined in by SouthTrust Corporation, a Delaware corporation ("SouthTrust") and
ST-Sub.
RECITALS:
WHEREAS, ST-Sub wishes to acquire the assets and business of
the Bank in exchange for shares of common stock of SouthTrust, in a transaction
that qualifies as a reorganization pursuant to Section 368(a)(1)(C) of the
Internal Revenue Code of 1986 (the "Code") (the "Merger");
WHEREAS, ST-Sub desires to effect such acquisition through
its wholly-owned subsidiary, ST-Bank, by causing the Bank to be merged with and
into ST-Bank;
WHEREAS, ST-Sub has directed, adopted and approved the
acquisition of the assets and business of the Bank through the wholly-owned
subsidiary of ST-Sub, ST-Bank;
WHEREAS, the respective Boards of Directors of ST-Bank and
the Bank deem it in the best interests of ST-Bank and the Bank, respectively,
and of their respective shareholders, that the Bank be merged with and into
ST-Bank pursuant to this Agreement (the "Merger");
WHEREAS, the Boards of Directors of ST-Bank and the Bank have
approved this Agreement and have directed that this Agreement be submitted to
their respective shareholders for approval and adoption in accordance with
applicable law;
WHEREAS, SouthTrust owns all the issued and outstanding
capital stock of ST-Sub and ST-Sub owns all the issued and outstanding capital
stock of ST-Bank;
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WHEREAS, SouthTrust, the ultimate parent company of ST-Bank,
will deliver, or cause to be delivered, to the shareholders of the Bank the
consideration to be paid pursuant to the Merger in accordance with the terms of
this Agreement; and
WHEREAS, SouthTrust, on behalf of and as the sole shareholder
of St-Sub, will cause ST-Sub to perform its obligations provided for hereunder
and otherwise take or cause to be taken the various other actions provided for
herein to facilitate the administration of the transactions provided for herein
in accordance with the terms and provisions hereof;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants, representations, warranties and agreements herein contained,
the parties agree that the Bank will be merged with ST-Bank and that the terms
and conditions of the Merger, the mode of carrying the Merger into effect,
including the manner of converting the shares of common stock of the Bank into
shares of common stock of SouthTrust, shall be as hereinafter set forth.
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ARTICLE I
THE MERGER
Section 1.1 Consummation of Merger; Closing Date. Subject to the
provisions hereof, the Bank shall be merged with and into ST-Bank (which has
heretofore and shall hereinafter be referred to as the "Merger") pursuant to
Section 32.301 of the Finance Code of the State of Texas and ST-Bank shall be
the surviving corporation (sometimes hereinafter referred to as "Surviving
Corporation" when reference is made to it after the Effective Time of the
Merger (as defined below)). The Merger shall become effective on the date and
at the time on which the Merger is deemed effective by the Department of
Banking of the State of Texas (the "Department") (such time is hereinafter
referred to as the "Effective Time of the Merger"). Subject to the terms and
conditions hereof, unless otherwise agreed upon by SouthTrust and the Bank, the
Effective Time of the Merger shall occur on the first business day following
the later to occur of (i) the effective date (including expiration of any
applicable waiting period) of the last required Consent (as defined in Section
11.2 of this Agreement) of any Regulatory Authority (as defined in Section 11.2
of this Agreement) having authority over the transactions contemplated under
the Merger Agreement and (ii) the date on which the shareholders of the Bank,
to the extent that their approval is required by applicable law, approve the
transactions contemplated by this Agreement.
(a) The closing of the Merger (the "Closing") shall take
place at the principal offices of the Bank at 10:00 a.m. local time on the day
that the Effective Time of the Merger occurs, or such other date and time and
place as the parties hereto may agree (the "Closing Date"). Subject to the
provisions of this Agreement, at the Closing there shall be delivered to each
of the parties hereto the opinions, certificates and other documents and
instruments required to be so delivered pursuant to this Agreement.
Section 1.2 Effect of Merger. At the Effective Time of the
Merger, the Bank shall be merged with and into ST-Bank and the separate
existence of the Bank shall cease. The Articles of Incorporation and Bylaws of
ST-Bank, as in effect on the date hereof and as otherwise amended prior to the
Effective Time of the Merger, shall be the Articles of Incorporation and the
Bylaws of the Surviving Corporation until further amended as provided therein
and in accordance with applicable law. The Surviving Corporation shall have all
the rights, privileges, immunities and powers and shall be subject to all the
duties and liabilities of a corporation organized under the laws of the State
of Texas and shall thereupon and thereafter possess all other privileges,
immunities and franchises of a private, as well as of a public nature, of each
of the constituent corporations. All property (real, personal and mixed) and
all debts on whatever account, including subscriptions to shares, and all
choses in action, all and every other interest, of or belonging to or due to
each of the constituent corporations so merged shall be taken and deemed to be
transferred to and vested in the Surviving Corporation without further act or
deed. The title to any real estate, or any interest therein, vested in any of
the constituent corporations shall not revert or be in any way impaired by
reason of the Merger. The Surviving Corporation shall thenceforth be
responsible and liable for all the liabilities and obligations of each of the
constituent corporations so merged and any claim existing or action or
proceeding pending by or against either of the constituent corporations may be
prosecuted as if the Merger had not taken place or the Surviving Corporation
may be substituted in
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its place. Neither the rights of creditors nor any liens upon the property of
any constituent corporation shall be impaired by the Merger.
Section 1.3 Further Assurances. From and after the Effective Time
of the Merger, as and when requested by the Surviving Corporation, the officers
and directors of ST-Bank and the Bank last in office shall execute and deliver
or cause to be executed and delivered in the name of ST-Bank or the Bank, as
applicable, such deeds and other instruments and take or cause to be taken such
further or other actions as shall be necessary in order to vest or perfect in
or confirm of record or otherwise to the Surviving Corporation title to and
possession of all of the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of ST-Bank and the Bank.
Section 1.4 Directors and Officers. From and after the Effective
Time of the Merger, the directors of the Surviving Corporation and the officers
of the Surviving Corporation shall be those persons in each case, as
SouthTrust, at or prior to the Effective Time of the Merger, shall designate in
writing.
Section 1.5 Voting Agreement and Irrevocable Proxy. As a
condition to the execution of this Agreement, the shareholders of the Bank
listed on DISCLOSURE SCHEDULE 1.5 are executing and delivering to SouthTrust a
Voting Agreement and Irrevocable Proxy in the form annexed hereto as EXHIBIT
1.5.
Section 1.6 Employment Agreement. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall have
signed, as of the date of this Agreement, an Employment Agreement in a form
satisfactory to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and SouthTrust, which Employment Agreement
shall be effective as of the Effective Time of the Merger.
ARTICLE II
CONVERSION OF CONSTITUENTS' CAPITAL SHARES
Section 2.1 Manner of Conversion of the Bank Shares. Subject to
the provisions hereof, as of the Effective Time of the Merger and by virtue of
the Merger and without any further action on the part of SouthTrust, ST-Sub,
ST-Bank or the Bank or any of their shareholders, the shares of the constituent
corporations shall be converted as set forth below:
(a) Each share of common stock of the Bank (the "Bank Shares") and
each share of common stock of ST-Bank (the "ST-Bank Shares") held by the Bank,
SouthTrust or ST-Sub (or any of their subsidiaries), other than in a fiduciary
capacity or as a result of debts previously contracted, shall be canceled and
retired and no consideration shall be paid or delivered in exchange therefor.
(b) Subject to the terms and conditions of this Agreement,
including, without limitation, Section 2.3 of this Agreement and except with
regard to Dissenting Shares (as defined in Section 2.1(d) of this Agreement)
and the Bank Shares excluded in (a) above, each Bank Share outstanding
immediately prior to the Effective Time of the Merger shall be converted into
the right to receive the quotient of (i) the Merger Consideration (as defined
below) divided by (ii) the number of Bank Shares outstanding immediately prior
to the Effective Time of the Merger (hereinafter referred to as the "Conversion
Ratio").
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For purposes of this Agreement, the term "Merger
Consideration" shall mean the number of shares of common stock of SouthTrust
(and the rights associated therewith pursuant to a Rights Agreement, dated
February 22, 1989 between SouthTrust and Mellon Bank, N.A.) (together, the
"SouthTrust Shares") equal to the quotient of (i) $30,000,000 divided by (ii)
the Average Closing Price; provided that (A) if the quotient is less than
695,675, the Merger Consideration shall be 695,675 SouthTrust Shares, and (B)
if the quotient is more than 785,675, then SouthTrust may, at its written
election, refuse to increase the Merger Consideration to more than 785,675
SouthTrust Shares, provided that the Bank may elect to terminate this Agreement
within three (3) business days after such written election.
For purposes of this Agreement, the term "Average Closing
Price" shall mean the average of the daily last sales prices of SouthTrust
Shares reported on the NasDaq- National Market System ("NASDAQ/NMS") (as
reported by The Wall Street Journal or, if not reported thereby, another
authoritative source as chosen by SouthTrust) for the twenty (20) consecutive
full trading days in which such shares are traded on the NASDAQ/NMS ending at
the close of trading on the tenth (10th) business day prior to the Effective
Time of the Merger.
Further, if the Effective Time of the Merger does not occur
on or before the record date for the payment of the regular quarterly dividend
on the SouthTrust Shares declared during the fourth quarter of fiscal year
1998, then, notwithstanding the foregoing, the number of SouthTrust Shares
included in the Merger Consideration shall be increased by adding thereto the
quotient of (A) the amount of such quarterly dividend divided by (B) the
Average Closing Price.
(c) Subject to the terms and upon the conditions of this
Agreement, including, without limitation, Section 2.2 of this Agreement and the
ST-Bank Shares excluded in (a) above, each ST-Bank Share outstanding
immediately prior to the Effective Time of the Merger shall be converted into
one fully paid and non-assessable share of Common Stock of the Surviving
Corporation and shall constitute all of the issued and outstanding shares of
capital stock of the Surviving Corporation.
(d) Each outstanding Bank Share, the holder of which has demanded
and perfected such holder's demand for payment of the fair value of such share
in accordance with Section 5.12 of the Texas Business Corporation Act (the
"Dissent Provisions"), and has not effectively withdrawn or lost such holder's
right to such appraisal (the "Dissenting Shares"), shall not be converted into
or represent a right to receive the SouthTrust Shares issuable in the Merger
but the holder thereof shall be entitled only to such rights as are granted by
the Dissent Provisions. The Bank shall give SouthTrust prompt notice upon
receipt by the Bank of any written objection to the Merger and any written
demand for payment of the fair value of any Bank Shares and of withdrawals of
such demands, and any other instrument provided to the Bank pursuant to the
Dissent Provisions (any shareholder duly making such demand being hereinafter
called a "Dissenting Shareholder"). Each Dissenting Shareholder who becomes
entitled, pursuant to the Dissent Provisions, to payment of fair value for any
Bank Share held by such Dissenting Shareholder shall receive payment therefor
from the Surviving Corporation, as escrow agent (the "Escrow Agent"), on behalf
of the Bank, as the case may be, out of funds provided to the Escrow Agent by
the Bank, as the case may be, in accordance with the provisions of Section
2.1(e) and the Dissent Provisions and all of the Bank Shares held by such
Dissenting Shareholder shall be canceled. Neither the Bank nor the Surviving
Corporation shall, except with the prior written consent of SouthTrust,
voluntarily make any payment with
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respect to, or settle or offer to settle, any demand for payment by any
Dissenting Shareholder. If any Dissenting Shareholder shall have failed to
perfect or shall have effectively withdrawn or lost such right to demand
payment of fair value, the Bank Shares held by such Dissenting Shareholder
shall thereupon be deemed to have been converted into the right to receive the
consideration to be issued in the Merger as provided by this Agreement.
(e) With respect to each Dissenting Shareholder, on or immediately
prior to the Effective Time of the Merger, the Bank shall deposit with the
Escrow Agent an amount in cash equal to 150% of the consideration (with the
SouthTrust Shares being valued in the manner set forth in Section 2.3) such
Dissenting Shareholder would have received in the Merger, but for the exercise
of the Dissent Provisions (the "Dissent Escrow"). The Escrow Agent shall
disburse the Dissent Escrow to such Dissenting Shareholders in accordance with
the Dissent Provisions. Any and all funds remaining in the Dissent Escrow after
such disbursement shall be remitted to the Surviving Corporation.
Section 2.2 Fractional Shares. Notwithstanding any other
provision of this Agreement, each holder of Bank Shares converted pursuant to
the Merger, and each holder of Bank Options assumed by SouthTrust pursuant to
this Agreement, who would otherwise have been entitled to receive a fraction of
a SouthTrust Share (after taking into account all certificates delivered by
such holder) shall receive, in lieu thereof, cash (without interest) in an
amount equal to such fractional part of such SouthTrust Share, multiplied by
the market value of one SouthTrust Share at the Effective Time of the Merger.
The market value of one SouthTrust Share at the Effective Time of the Merger,
shall be the last sale price of such SouthTrust Shares, as reported by
NASDAQ/NMS on the last business day preceding the Effective Time of the Merger
or, if the SouthTrust Shares hereafter become listed for trading on any
national securities exchange registered under the Exchange Act, the last sale
price of such SouthTrust Shares on the applicable date as reported on the
principal securities exchange on which the SouthTrust Shares are then listed
for trading. No such holder will be entitled to dividends, voting rights or any
other rights as a shareholder in respect of any fractional share.
Section 2.3 Effectuating Conversion. (a) SouthTrust shall
designate such institution as it may select, including SouthTrust or one of its
affiliates, to serve as the exchange agent (the "Exchange Agent") pursuant to
this Agreement. The Exchange Agent may employ sub-agents in connection with
performing its duties. As of the Effective Time of the Merger, SouthTrust will
deliver or cause to be delivered to the Exchange Agent the consideration to be
paid by SouthTrust for the Bank Shares, along with an appropriate cash payment
in lieu of fractional interests in SouthTrust Shares. As promptly as
practicable, but not later than thirty (30) days, after the Effective Time of
the Merger, the Exchange Agent shall send or cause to be sent to each former
holder of record of the Bank Shares transmittal materials (the "Letter of
Transmittal") for use in exchanging their certificates formerly representing
the Bank Shares for the consideration provided for in this Agreement. The
Letter of Transmittal will contain instructions with respect to the surrender
of certificates representing the Bank Shares and the receipt of the
consideration contemplated by this Agreement and will require each holder of
Bank Shares to transfer good and marketable title to such Bank Shares to
SouthTrust, free and clear of all liens, claims and encumbrances. Amounts that
would have been payable to Dissenting Shareholders for Bank Shares but for the
fact of their dissent in accordance with the provisions of Section 2.1(d)
hereof shall be returned by the Exchange Agent to SouthTrust as promptly as
practicable.
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(b) At the Effective Time of the Merger, the stock
transfer books of the Bank shall be closed as to holders of Bank Shares
immediately prior to the Effective Time of the Merger and no transfer of Bank
Shares by any such holder shall thereafter be made or recognized and each
outstanding certificate formerly representing the Bank Shares shall, without
any action on the part of any holder thereof, no longer represent the Bank
Shares. If, after the Effective Time of the Merger, certificates are properly
presented to the Exchange Agent, such certificates shall be exchanged for the
consideration contemplated by this Agreement into which the Bank Shares
represented thereby were converted in the Merger.
(c) In the event that any holder of record as of the
Effective Time of the Merger of Bank Shares is unable to deliver the
certificate which represents such holder's Bank Shares, SouthTrust, in the
absence of actual notice that any Bank Shares theretofore represented by any
such certificate have been acquired by a bona fide purchaser, may, in its
discretion, deliver to such holder the consideration contemplated by this
Agreement and the amount of cash representing fractional SouthTrust Shares to
which such holder is entitled in accordance with the provisions of this
Agreement upon the presentation of all of the following:
(i) an affidavit or other evidence to the reasonable
satisfaction of SouthTrust that any such certificate
has been lost, wrongfully taken or destroyed;
(ii) such security or indemnity, including a bond, as may
be requested by SouthTrust or SouthTrust's transfer
agent, to indemnify and hold SouthTrust (and/or such
transfer agent) harmless; and
(iii) evidence to the satisfaction of SouthTrust that such
holder is the owner of the Bank Shares theretofore
represented by each certificate claimed by such
holder to be lost, wrongfully taken or destroyed and
that such holder is the person who would be entitled
to present each such certificate for exchange
pursuant to this Agreement.
(d) In the event that the delivery of the consideration
contemplated by this Agreement and the amount of cash representing fractional
SouthTrust Shares are to be made to a person other than the person in whose
name any certificate representing the Bank Shares surrendered is registered,
such certificate so surrendered shall be properly endorsed (or accompanied by
an appropriate instrument of transfer), with the signature(s) appropriately
guaranteed, and otherwise in proper form for transfer, and the person
requesting such delivery shall pay any transfer or other taxes required by
reason of the delivery to a person other than the registered holder of such
certificate surrendered or establish to the satisfaction of SouthTrust that
such tax has been paid or is not applicable.
(e) No holder of Bank Shares shall be entitled to receive
any dividends or distributions declared or made with respect to the SouthTrust
Shares with a record date before the Effective Time of the Merger. After the
Effective Time of the Merger, and until properly surrendered and exchanged
pursuant to this Agreement, each outstanding certificate representing
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Bank Shares, subject to this Section 2.4(e) shall be deemed to represent and
evidence for all corporate purposes only the right to receive the consideration
into which such Bank Shares were converted as of the Effective Time of the
Merger. Accordingly, among other matters, neither the consideration
contemplated by this Agreement, any amount of cash representing fractional
SouthTrust Shares nor any dividend or other distribution with respect to
SouthTrust Shares where the record date thereof is on or after the Effective
Time of the Merger shall be paid, and SouthTrust shall not be obligated to pay,
to the holder of any unsurrendered certificate or certificates representing the
Bank Shares until such holder shall surrender the certificate or certificates
representing the Bank Shares as provided for by this Agreement, and until such
holder becomes the record holder of the SouthTrust Shares issuable in the
Merger, such holder shall not be entitled to vote such SouthTrust Shares in
respect of any matter coming before the stockholders of SouthTrust. Subject to
applicable laws, following surrender of any such certificate or certificates,
there shall be paid to the holder of the certificate or certificates then
representing SouthTrust Shares issued in the Merger, without interest at the
time of such surrender, the consideration contemplated by this Agreement, the
amount of any cash representing fractional SouthTrust Shares and the amount of
any dividends or other distributions with respect to SouthTrust Shares to which
such holder is entitled as a holder of SouthTrust Shares in accordance with the
foregoing.
Section 2.4 Laws of Escheat. If any of the consideration due or
other payments to be paid or delivered to the holders of Bank Shares is not
paid or delivered within the time period specified by any applicable laws
concerning abandoned property, escheat or similar laws, and if such failure to
pay or deliver such consideration occurs or arises out of the fact that such
property is not claimed by the proper owner thereof, SouthTrust or the Exchange
Agent shall be entitled to dispose of any such consideration or other payments
in accordance with applicable laws concerning abandoned property, escheat or
similar laws. Any other provision of this Agreement notwithstanding, none of
the Bank, SouthTrust, ST-Sub, ST-Bank, the Exchange Agent, nor any other person
acting on their behalf shall be liable to a holder of Bank Shares for any
amount paid or property delivered in good faith to a public official pursuant
to and in accordance with any applicable abandoned property, escheat or similar
law.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BANK
The Bank hereby represents and warrants to SouthTrust as follows as of
the date hereof and as of all times up to and including the Effective Time of
the Merger (except as otherwise provided):
Section 3.1 Corporate Organization. (a) The Bank is a banking
corporation duly organized, validly existing and in good standing under the
laws of the State of Texas. The Bank has the corporate power and authority to
own or lease all of its properties and assets and to carry on its business as
such business is now being conducted, and the Bank is duly licensed or
qualified to do business in each state or other jurisdiction in which the
nature of the business conducted by it or the character or location of the
properties and assets owned or leased by it makes such licensing or
qualification necessary, except where the failure to be so licensed or
qualified would not have a Material Adverse Effect (as defined in Section 11.2
of this Agreement) on the Bank. True and
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correct copies of the Articles of Incorporation and the Bylaws of the Bank, as
amended to the date hereof, have been delivered to SouthTrust.
(b) The Bank has in effect all federal, state, local and
foreign governmental, regulatory and other authorizations, permits and licenses
necessary for it to own or lease its properties and assets and to carry on its
business as now conducted, except for authorizations, permits and licenses, the
absence of which, either individually or in the aggregate, would not have a
Material Adverse Effect on the Bank.
(c) The Bank does not own any capital stock of any
subsidiary, or have any interest in any partnership or joint venture; for
purposes of this Agreement, a "subsidiary" means any corporation or other
entity of which the party referred to beneficially owns, controls, or has the
power to vote, directly or indirectly, more than 5% of the outstanding equity
securities.
(d) The minute books of the Bank contain complete and
accurate records in all material respects of all meetings and other corporate
actions held or taken by its respective shareholders and Board of Directors
(including all committees thereof).
Section 3.2 Capitalization. (a) The authorized capital stock of
the Bank consists of 330,000 shares of common stock, par value $4.00
(hereinbefore and hereinafter referred to as the "Bank Shares"), 305,000 shares
of which as of the date hereof are issued and outstanding. All of the issued
and outstanding Bank Shares have been duly authorized and validly issued and
all such shares are fully paid and nonassessable. As of the date hereof, there
are no outstanding options, warrants, commitments, or other rights or
instruments to purchase or acquire any shares of capital stock of the Bank, or
any securities or rights convertible into or exchangeable for shares of capital
stock of the Bank.
Section 3.3 Financial Statements; Filings. (a) The Bank has
previously delivered to SouthTrust copies of the financial statements of the
Bank as of and for each of the three (3) fiscal years of the Bank ended
immediately prior to the date of this Agreement and the financial statements of
the Bank as of and for each of the fiscal periods of the Bank ended after the
close of the most recently completed fiscal year of the Bank and prior to the
date of this Agreement, and the Bank shall deliver to SouthTrust, as soon as
practicable following the preparation of additional financial statements for
each subsequent fiscal period or year of the Bank, the financial statements of
the Bank as of and for such subsequent fiscal period or year (such financial
statements, unless otherwise indicated, being hereinafter referred to
collectively as the "Financial Statements of the Bank").
(b) The Bank has previously delivered to SouthTrust
copies of the Call Reports of the Bank as of and for each of the three (3)
fiscal years of the Bank ended immediately prior to the date of this Agreement
and the Call Reports of the Bank as of and for each of the fiscal periods of
the Bank ended after the close of the most recently completed fiscal year of
the Bank and prior to the date of this Agreement, and the Bank shall deliver to
SouthTrust, as soon as practicable following the preparation of additional Call
Reports for each subsequent fiscal period or year of the Bank, the Call Reports
of the Bank as of and for each such subsequent period or year (such Call
Reports, unless otherwise indicated, being hereinafter referred to collectively
as the "Call Reports of the Bank").
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(c) Each of the Financial Statements of the Bank, and
each of the Call Reports of the Bank (including the related notes, where
applicable) have been or will be prepared in all material respects in
accordance with generally accepted accounting principles or regulatory
accounting principles, whichever is applicable, which principles have been or
will be consistently applied during the periods involved, except as otherwise
noted therein, and the books and records of the Bank have been, are being, and
will be maintained in all material respects in accordance with applicable legal
and accounting requirements and reflect only actual transactions. Each of the
Financial Statements of the Bank and each of the Call Reports of the Bank
(including the related notes, where applicable) fairly present or will fairly
present the financial position of the Bank as of the respective dates thereof
and fairly present or will fairly present the results of operations of the Bank
for the respective periods therein set forth.
(d) To the extent not prohibited by law, the Bank has
heretofore delivered or made available, or caused to be delivered or made
available, to SouthTrust all reports and filings made or required to be made by
the Bank with the Regulatory Authorities, and will from time to time hereafter
furnish to SouthTrust, upon filing or furnishing the same to the Regulatory
Authorities, all such reports and filings made after the date hereof with the
Regulatory Authorities. At the respective dates of such reports and filings,
all such reports and filings did not and shall not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) Since December 31, 1997, the Bank has not incurred
any obligation or liability (contingent or otherwise) that has or might
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on the Bank, except obligations and liabilities (i) which are
accrued or reserved against in the Financial Statements of the Bank as of and
for the aforementioned date or reflected in the notes thereto, or (ii) which
were incurred after such date in the ordinary course of business, consistent
with past practices. Since December 31, 1997, the Bank has not incurred or paid
any obligation or liability which would have a Material Adverse Effect on the
Bank, except as may have been incurred or paid in the ordinary course of
business, consistent with past practices.
Section 3.4 Loan Portfolio; Reserves. Except as set forth in
DISCLOSURE SCHEDULE 3.4, (i) all evidences of indebtedness in original
principal amount in excess of $10,000 reflected as assets in the Financial
Statements of the Bank and the Call Reports of the Bank as of and for the year
ended December 31, 1997 and each of the fiscal periods of the Bank ended after
December 31, 1997 were as of such dates in all respects the binding obligations
of the respective obligors named therein in accordance with their respective
terms and were not subject to any defenses, setoffs, or counterclaims, except
as may be provided by bankruptcy, insolvency or similar laws or by general
principles of equity; (ii) the allowances for possible loan losses shown on the
Financial Statements of the Bank and the Call Reports of the Bank as of and for
the year ended December 31, 1997 and each of the fiscal periods of the Bank
ended after December 31, 1997 were, and the allowance for possible loan losses
to be shown on the Financial Statements of the Bank, the Financial Statements
of the Bank and the Call Reports of the Bank as of any date subsequent to the
execution of this Agreement will be, as of such dates, adequate to provide for
possible losses, net of recoveries relating to loans previously charged off, in
respect of loans outstanding (including accrued interest
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receivable) of the Bank and other extensions of credit (including letters of
credit or commitments to make loans or extend credit); (iii) the reserve for
losses with respect to other real estate owned ("OREO Reserve") shown on the
Financial Statements of the Bank and the Call Reports of the Bank as of and for
the year ended December 31, 1997 and each of the periods of the Bank ended
after December 31, 1997 were, and the OREO Reserve to be shown on the Financial
Statements of the Bank and the Call Reports of the Bank as of any date
subsequent to the execution of this Agreement will be, as of such dates,
adequate to provide for losses relating to the other real estate owned
portfolio of the Bank as of the dates thereof; (iv) the reserve for losses in
respect of litigation ("Litigation Reserve") shown on the Financial Statements
of the Bank and the Call Reports of the Bank as of and for the year ended
December 31, 1997 and each of the fiscal periods of the Bank ended after
December 31, 1997 were, and the Litigation Reserve to be shown on the Financial
Statements of the Bank and the Call Reports of the Bank as of any date
subsequent to the execution of this Agreement will be, as of such dates,
adequate to provide for losses relating to or arising out of all pending or
threatened litigation applicable to the Bank as of the dates thereof; and (v)
each such allowance or reserve described above has been established in
accordance with the accounting principles described in Section 3.3(c) and
applicable regulatory requirements and guidelines.
Section 3.5 Certain Loans and Related Matters. Except as set
forth in DISCLOSURE SCHEDULE 3.5, the Bank is not a party to any written or
oral: (i) loan agreement, note or borrowing arrangement, other than credit card
loans and other loans the unpaid balance of which does not exceed $10,000 for
each such instrument, under the terms of which the obligor is sixty (60) days
delinquent in payment of principal or interest or in default of any other
provision as of the date hereof; (ii) loan agreement, note or borrowing
arrangement which has been classified or, to the knowledge of the Bank, in the
exercise of reasonable diligence by the Bank or any Regulatory Authority,
should have been classified as "substandard", "doubtful", "loss", "other loans
especially mentioned", "other assets especially mentioned" or any comparable
classifications by such persons; or (iii) loan agreement, note or borrowing
arrangement, including any loan guaranty, with any director or executive
officer of the Bank or any ten percent (10%) shareholder of the Bank, or any
person, corporation or enterprise controlling, controlled by or under common
control with any of the foregoing.
Section 3.6 Authority; No Violation. (a) The Bank has full
corporate power and authority to execute and deliver this Agreement and,
subject to the approval of the shareholders of the Bank and to the receipt of
the Consents of the Regulatory Authorities and other Consents referred to in
Section 3.7 of this Agreement, to consummate the transactions contemplated
hereby. The Board of Directors of the Bank has duly and validly approved this
Agreement and the transactions contemplated hereby, has authorized the
execution and delivery of this Agreement, has directed that this Agreement and
the transactions contemplated hereby be submitted to the Bank's shareholders
for approval including, if required, at a meeting of such shareholders and,
except for the adoption of such Agreement by its shareholders, no other
proceedings, corporate or otherwise, nor any other actions on the part of the
Bank are necessary to consummate the transactions contemplated by this
Agreement. This Agreement, when duly and validly executed by the Bank and
delivered by the Bank, will constitute a valid and binding obligation of the
Bank, and will be enforceable against the Bank in accordance with its terms,
except 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
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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 the Bank nor the consummation by the Bank of the transactions contemplated
hereby, nor compliance by the Bank with any of the terms or provisions hereof,
will (i) violate any provision of the Articles of Incorporation or Bylaws of
the Bank, (ii) assuming that all necessary Consents, including, but not limited
to, those of the Regulatory Authorities and all other approvals referred to
herein are duly obtained, (A) violate any statute, code, ordinance, rule,
regulation, judgment, order, writ, decree or injunction applicable to the Bank
or any of its properties or assets, or (B) violate, conflict with, result in a
breach of any provisions of, constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, result in
the termination of, accelerate the performance required by or result in the
creation of any lien, security interest, charge or other encumbrance upon any
of the material properties or assets of the Bank or under, any of the terms,
conditions or provisions of any material note, bond, mortgage, indenture, deed
of trust, license, permit, lease, agreement or other material instrument or
obligation to which the Bank is a party, or by which the Bank or any of its
material properties or assets may be bound or affected.
Section 3.7 Consents and Approvals. Except for (i) the approval
of this Agreement and the transactions contemplated hereby by the shareholders
of the Bank; (ii) the Consents of the Regulatory Authorities; (iii) the
approval of this Agreement by sole shareholder of ST-Bank; (iv) the filing of
Articles of Merger with the Department; and (v) as set forth in DISCLOSURE
SCHEDULE 3.7, no Consents of any person are necessary in connection with the
execution and delivery by the Bank of this Agreement and the consummation by
the Bank of the Merger and the other transactions contemplated hereby.
Section 3.8 Broker's Fees. Neither the Bank nor any of its
respective officers or directors, has employed any broker or finder or incurred
any liability for any broker's fees, commissions or finder's fees in connection
with any of the transactions contemplated by this Agreement.
Section 3.9 Absence of Certain Changes or Events. Since December
31, 1997, (i) there has not been, and except as otherwise provided in Section
5.1(b) of this Agreement during the period from the date of this Agreement to
the Closing Date, there will not be, any declaration, payment or setting aside
of any dividend or distribution (whether in cash, stock or property) in respect
of Bank Shares or (ii) there has not been any Material Adverse Effect on the
Bank and, to the knowledge of the Bank, no fact or condition exists as of the
date hereof which might reasonably be expected to cause such a Material Adverse
Effect on the Bank in the future.
Section 3.10 Legal Proceedings; Etc. Except as set forth in
DISCLOSURE SCHEDULE 3.10, the Bank is not a party to any, and there are no
pending or, to the knowledge of the Bank, threatened, judicial, administrative,
arbitral or other proceedings, claims, actions, causes of action or
governmental investigations against the Bank challenging the validity of the
transactions contemplated by this Agreement and, to the knowledge of the Bank
as of the date hereof, (i) there is no proceeding, claim, action or
governmental investigation against the Bank; and (ii) no judgment, decree,
injunction, rule or order of any court governmental department, commission,
agency, instrumentality or arbitrator is outstanding against the Bank which has
or might reasonably be expected to have a Material Adverse Effect on the Bank.
The Bank is not a party to any agreement,
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order or memorandum in writing by or with any Regulatory Authority restricting
the operations of the Bank and the Bank has not been advised by any Regulatory
Authority that any such Regulatory Authority is contemplating issuing or
requesting the issuance of any such order or memorandum in the future.
Section 3.11 Taxes and Tax Returns. (a) The Bank has previously
delivered or made available to SouthTrust copies of the federal, state and
local income tax returns of the Bank for the years 1994, 1995 and 1996 and all
schedules and exhibits thereto, and will provide SouthTrust with a copy of all
federal, state and local income tax returns for the year 1997 and all schedules
and exhibits thereto, when such returns are filed, and, such returns have not
been examined or subjected to an audit by the Internal Revenue Service or any
other taxing authorities. Except as in set forth in DISCLOSURE SCHEDULE
3.11(A), the Bank has duly filed in correct form all federal, state and local
information returns and tax returns required to be filed by the Bank on or
prior to the date hereof, and the Bank has duly paid or made adequate
provisions for the payment of all taxes and other governmental charges which
are owed by the Bank to any federal, state or local taxing authorities, whether
or not reflected in such returns (including, without limitation, those owed in
respect of the properties, income, business, capital stock, deposits,
franchises, licenses, sales and payrolls of the Bank), other than taxes and
other governmental charges which (i) are not yet delinquent or are being
contested in good faith or (ii) have not been finally determined. The amounts
set forth as liabilities for taxes on the Financial Statements of the Bank and
the Call Reports of the Bank are sufficient, in the aggregate, for the payment
of all unpaid federal, state and local taxes (including any interest or
penalties thereon), whether or not disputed, accrued or applicable, for the
periods then ended, and have been computed in accordance with generally
accepted accounting principles consistent with past practices. The Bank is not
responsible for the taxes or other governmental charges of any other person
other than the Bank under Treasury Regulation 1.1502-6 or any similar provision
of federal, state or foreign law.
(b) Except as disclosed in DISCLOSURE SCHEDULE 3.11(B),
the Bank has not executed an extension or waiver of any statute of limitations
on the assessment or collection of any federal, state or local tax due that is
currently in effect, and deferred taxes of the Bank have been adequately
provided for in the Financial Statements of the Bank.
(c) Except as disclosed in DISCLOSURE SCHEDULE 3.11(C),
the Bank has not made any payment, is not obligated to make any payment and is
not a party to any contract, agreement or other arrangement that could obligate
it to make any payment that would be disallowed as a deduction under Section
280(G) or 162(m) of the Code.
(d) Except as disclosed in DISCLOSURE SCHEDULE 3.11(D),
there has not been an ownership change, as defined in Section 382(G) of the
Code, of the Bank that occurred during or after any taxable period in which the
Bank incurred an operating loss that carries over to any taxable period ending
after the fiscal year of the Bank immediately preceding the date of this
Agreement.
(e) (i) To the knowledge of the Bank, proper and accurate
amounts have been withheld by the Bank from its employees and others for all
prior periods in compliance in all material respects with the tax withholding
provisions of all applicable federal, state and local laws and regulations, and
proper due diligence steps have been taken in connection with back-up
withholding, (ii) federal, state and local returns have been filed by the Bank
for all periods for which
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returns were due with respect to withholding, Social Security and unemployment
taxes or other governmental charges due to any federal, state or local tax
authority and (iii) the amounts shown on such returns to be due and payable
have been paid in full or adequate provision therefor has been included by the
Bank in the Financial Statements of the Bank.
Section 3.12 Employee Benefit Plans. (a) The Bank does not have or
maintain any "employee benefit plan," as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any
other benefit plan or arrangement except as described in DISCLOSURE SCHEDULE
3.12(A).
(b) The Bank (or any pension plan maintained by it) has
not incurred any liability to the Pension Benefit Guaranty Corporation ("PBGC")
or the Internal Revenue Service with respect to any pension plan qualified
under Section 401 of the Code, except liabilities to the PBGC pursuant to
Section 4007 of ERISA, all which have been fully paid. No reportable event
under Section 4043(b) of ERISA (including events waived by PBGC regulation) has
occurred with respect to any such pension plan.
(c) The Bank has not incurred any material liability
under Section 4201 of ERISA for a complete or partial withdrawal from, and has
not agreed to participate in, any multi-employer plan as such term is defined
in Section 3(37) of ERISA.
(d) All "employee benefit plans," as defined in Section
3(3) of ERISA, that are maintained by the Bank comply, in all material respects
with ERISA and the Code that are applicable, or intended to be applicable, to
such "employee benefit plans". All documents summaries, forms or other
information required to be provided to participants in such employee benefit
plans or to be filed with or provided to any governmental agency in connection
with such plans have been so provided or filed on a timely basis. The Bank does
not have any material liability under any such plan.
(e) No prohibited transaction (which shall mean any
transaction prohibited by Section 406 of ERISA and not exempt under Section 408
of ERISA) has occurred with respect to any employee benefit plan maintained by
the Bank (i) which would result in the imposition, directly or indirectly, of a
material excise tax under Section 4975 of the Code or a material civil penalty
under Section 502(i) of ERISA, or (ii) the correction of which would have a
material adverse effect on the Condition of the Bank; and no actions have
occurred which could result in the imposition of a penalty under any section or
provision of ERISA.
(f) No employee benefit plan which is a defined benefit
pension plan has any "unfunded current liability," as that term is defined in
Section 302(d)(8)(A) of ERISA, and the present fair market value of the assets
of any such plan exceeds the plan's "benefit liabilities," as that term is
defined in Section 4001(a)(16) of ERISA, when determined under actuarial
factors that would apply if the plan terminated in accordance with all
applicable legal requirements.
(g) Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby will (i) result in
any material payment (including, without limitation, severance, unemployment
compensation, golden parachute or otherwise) becoming due from the Bank to any
director or any officer or employee of the Bank under any benefit plan or
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otherwise, (ii) materially increase any benefits otherwise payable under any
benefit plan or (iii) result in any acceleration of the time of payment or
vesting of any such benefits to any material extent.
(h) The Bank does not maintain any employee benefit plan
providing medical or life insurance benefits to released or terminated
employees, or dependents thereof, except as may be required by Part 6 of
Subtitle B of Title I of ERISA or Section 4980B of the Code.
Section 3.13 Title and Related Matters. (a) Except as set forth in
DISCLOSURE SCHEDULE 3.13(A), the Bank has good title, and as to owned real
property, has good and marketable title in fee simple absolute, to all assets
and properties, real or personal, tangible or intangible, reflected as owned by
it or carried under its name on the Financial Statements of the Bank or the
Call Reports of the Bank or acquired subsequent thereto (except to the extent
that such assets and properties have been disposed of for fair value in the
ordinary course of business since December 31, 1997), free and clear of all
liens, encumbrances, mortgages, security interests, restrictions, pledges or
claims, except for (i) those liens, encumbrances, mortgages, security
interests, restrictions, pledges or claims reflected in the Financial
Statements of the Bank, and the Call Reports of the Bank or incurred in the
ordinary course of business after December 31, 1997, (ii) statutory liens for
amounts not yet delinquent or which are being contested in good faith, and
(iii) liens, encumbrances, mortgages, security interests, pledges, claims and
title imperfections that would not in the aggregate have a Material Adverse
Effect on the Bank.
(b) All agreements pursuant to which the Bank leases,
subleases or licenses material real or material personal properties from others
are valid, binding and 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
remedies of specific performance or injunctive relief is subject to the
discretion of the court before which any proceedings may be brought). Except as
set forth in DISCLOSURE SCHEDULE 3.13(B), the Bank has all right, title and
interest as a lessee under the terms of each lease or sublease, free and clear
of all liens, claims or encumbrances (other than the rights of the lessor), as
of the Effective Time of the Merger, and shall have the right to transfer each
lease or sublease pursuant to this Agreement.
(c) Other than real estate owned, acquired by foreclosure
or voluntary deed in lieu of foreclosure (i) all of the buildings, structures
and fixtures owned, leased or subleased by the Bank are in good operating
condition and repair, subject only to ordinary wear and tear and/or minor
defects which do not interfere with the continued use thereof in the conduct of
normal operations, and (ii) all of the material personal properties owned,
leased or subleased by the Bank are in good operating condition and repair,
subject only to ordinary wear and tear and/or minor defects which do not
interfere with the continued use thereof in the conduct of normal operations.
Section 3.14 Real Estate. (a) DISCLOSURE SCHEDULE 3.14(A)
identifies and sets forth a complete legal description for each parcel of real
estate or interest therein owned, leased or subleased by the Bank or in which
the Bank has any ownership or leasehold interest.
(b) DISCLOSURE SCHEDULE 3.14(B) lists or otherwise
describes and sets forth each and every written or oral lease or sublease,
together with the current name, address and telephone number of the landlord or
sublandlord and the landlord's property manager, if any, under which the Bank
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is the lessee or sublessee of any real property and which relates in any manner
to the operation of the businesses of the Bank.
(c) DISCLOSURE SCHEDULE 3.14(C) lists or otherwise
describes with respect to each parcel of leased real property listed on
DISCLOSURE SCHEDULE 3.14(B), each and every Consent required to facilitate the
full and complete assignment of all right, title and interest of the lessee in
such lease or sublease to the Surviving Corporation and the use and operation
of such real property by the Surviving Corporation.
(d) As to each parcel of real property owned or used by
the Bank, the Bank has not received notice of any pending or, to the knowledge
of the Bank, threatened condemnation proceedings, litigation proceedings or
mechanics or materialmen's liens.
Section 3.15 Environmental Matters.
(a) Each of the Bank, the Participation Facilities (as
defined in Section 11.2 of this Agreement), and the Loan Properties (as defined
in Section 11.2 of this Agreement) are, and have been, in compliance with all
applicable laws, rules, regulations, standards and requirements of the United
States Environmental Protection Agency and all state and local agencies with
jurisdiction over pollution or protection of the environment, except for
violations which, individually or in the aggregate, will not have a Material
Adverse Effect on the Bank.
(b) There is no litigation pending or, to the knowledge
of the Bank, threatened before any court, governmental agency or board or other
forum in which the Bank or any Participation Facility has been or, with respect
to threatened litigation, may be, named as defendant (i) for alleged
noncompliance (including by any predecessor), with any Environmental Law (as
defined in Section 11.2 of this Agreement) or (ii) relating to the release into
the environment of any Hazardous Material (as defined in Section 11.2 of this
Agreement) or oil, whether or not occurring or on a site owned, leased or
operated by the Bank or any Participation Facility, except for such litigation
pending or threatened that will not, individually or in the aggregate, have a
Material Adverse Effect on the Bank.
(c) There is no litigation pending or, to the knowledge
of the Bank, threatened before any court, governmental agency or board or other
forum in which any Loan Property (or the Bank in respect of such Loan Property)
has been or, with respect to threatened litigation, may be, named as a
defendant or potentially responsible party (i) for alleged noncompliance
(including by any predecessor) with any Environmental Law or (ii) relating to
the release into the environment of any Hazardous Material or oil, whether or
not occurring at, on or involving a Loan Property, except for such litigation
pending or threatened that will not individually or in the aggregate, have a
Material Adverse Effect on the Bank.
(d) To the knowledge of the Bank, there is no reasonable
basis for any litigation of a type described in Sections 3.15(b) of this
Agreement, except as will not have, individually or in the aggregate, a
Material Adverse Effect on the Bank.
(e) To the knowledge of the Bank, during the period of
(i) ownership or operation by the Bank of any of its current properties, (ii)
connection by the Bank to any Participation Facility, or (iii) holding by the
Bank of a security interest in any Loan Property, there have been no releases
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of Hazardous Material or oil in, on, under or affecting such properties, except
where such releases have not and will not, individually or in the aggregate,
have a Material Adverse Effect on the Bank.
(f) Prior to the period of (i) ownership or operation by
the Bank of any of its respective current properties, (ii) connection by the
Bank to a Participation Facility, or (iii) holding by the Bank of a security
interest in a Loan Property, to the knowledge of the Bank, there were no
releases of Hazardous Material or oil in, on, under or affecting any such
property, Participation Facility or Loan Property, except where such releases
have not and will not, individually or in the aggregate, have a Material
Adverse Effect on the Bank.
Section 3.16 Commitments and Contracts.
(a) Except as set forth in DISCLOSURE SCHEDULE 3.16(A),
the Bank is not a party or subject to any of the following (whether written or
oral, express or implied):
(i) any employment contract or understanding
(including any agreements, plans, understandings or obligations with respect to
severance or termination pay liabilities or fringe benefits) with any present
or former officer, director, employee, including in any such person's capacity
as a consultant (other than those which either are terminable at will without
any further amount being payable thereunder or as a result of such termination
by the Bank);
(ii) any labor contract or agreement with any
labor union;
(iii) any contract covenants which limit the
ability of the Bank to compete in any line of business or which involve any
restriction of the geographical area in which the Bank may carry on its
business (other than as may be required by law or applicable regulatory
authorities);
(iv) any lease (other than real estate leases
described on DISCLOSURE SCHEDULE 3.14(B)) or other agreements or contracts with
annual payments aggregating $5,000 or more; or
(v) any other contract or agreement which would
be required to be disclosed in reports filed by the Bank with the FRB, the FDIC
or the Department and which has not been so disclosed.
(b) Except as set forth in DISCLOSURE SCHEDULE 3.16(B),
there is not, under any agreement, lease or contract to which the Bank is a
party, any existing default or event of default, or any event which with notice
or lapse of time or both, would constitute a default or force majeure, or
provide the basis for any other claim of excusable delay or non-performance.
(c) DISCLOSURE SCHEDULE 3.16(C) lists the deadlines for
extensions or terminations of any material leases, agreements or licenses
(including specifically real property leases and data processing agreements) to
which the Bank is a party.
Section 3.17 Accounting, Tax and Regulatory Matters. To the
knowledge of the Bank, the Bank has not taken or agreed to take any action, has
no knowledge of any fact and has not agreed to any circumstance that would (i)
materially impede or delay receipt of any Consents of any Regulatory
Authorities referred to in this Agreement, (ii) prevent the transactions
contemplated by this Agreement from qualifying as a reorganization within the
meaning of Section 368(a) of the
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Code, or (iii) materially impede the ability of SouthTrust to account for the
transactions contemplated by this Agreement as a pooling of interests.
Section 3.18 Registration Obligations. The Bank is not under any
obligation, contingent or otherwise, which will survive the Merger to register
any of its securities under the Securities Act or any state securities laws.
Section 3.19 State Takeover Laws. This Agreement and the
transactions contemplated hereby are not subject to or restricted by any
applicable state anti-takeover statute.
Section 3.20 Insurance. The Bank is presently insured, and during
each of the past three (3) calendar years has been insured, against such risks
as banks and financial institutions of similar size and are (or would have
been) insured in accordance with customary and reasonable business practices.
Such policies of insurance are listed and described in DISCLOSURE SCHEDULE
3.20.
Section 3.21 Labor. No work stoppage involving the Bank is pending
as of the date hereof or, to the knowledge of the Bank, threatened. The Bank is
not involved in, or, to the knowledge of the Bank, threatened with or affected
by, any proceeding asserting that the Bank has committed an unfair labor
practice or any labor dispute, arbitration, lawsuit or administrative
proceeding which might reasonably be expected to have a Material Adverse Effect
on the Bank. No union represents or claims to represent any employees of the
Bank, and, to the knowledge of the Bank, no labor union is attempting to
organize employees of the Bank.
Section 3.22 Compliance with Laws. The Bank has conducted its
business and owned its assets in accordance with all applicable federal,
foreign, state and local laws, regulations and orders, and is in compliance
with such laws, regulations and orders, except for such violations or
non-compliance, which when taken together as a whole, will not have a Material
Adverse Effect on the Bank. Except as disclosed in DISCLOSURE SCHEDULE 3.22,
the Bank:
(a) is not in violation of any laws, regulations, rules,
orders or permits applicable to its business or the
employees or agents or representatives conducting
its business, except for violations which
individually or in the aggregate do not have and
will not have a Material Adverse Effect on the Bank;
and
(b) has not received a notification or communication from
any agency or department of federal, state or local
government or the Regulatory Authorities or the
staff thereof (i) asserting that the Bank is not in
compliance with any laws, regulations, rules, orders
or permits which such governmental authority or
Regulatory Authority enforces, unless such
non-compliance is not reasonably likely to have a
Material Adverse Effect on the Bank, (ii)
threatening to revoke any permit, the revocation of
which is reasonably likely to have a Material
Adverse Effect on the Bank, (iii) requiring the Bank
to enter into any cease and desist order, formal
agreement, commitment or memorandum of
understanding, or to adopt any resolutions or
similar undertakings, or (iv) directing, restricting
or limiting,
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or purporting to direct, restrict or limit in any
manner, the operations of the Bank, including,
without limitation, any restrictions on the payment
of dividends.
Section 3.23 Transactions with Management. Except for (a)
deposits, all of which are on terms and conditions comparable to those made
available to other customers of the Bank at the time such deposits were entered
into, (b) the agreements listed in DISCLOSURE SCHEDULE 3.16(A) with respect to
Section 3.16(a)(i) of this Agreement, (c) the loans disclosed in DISCLOSURE
SCHEDULE 3.5 with respect to Section 3.5(iii) of this Agreement, (d)
obligations under employee benefit plans of the Bank as set forth in DISCLOSURE
SCHEDULE 3.12, and (e) the items described on DISCLOSURE SCHEDULE 3.23, there
are no contracts with or commitments to present or former stockholders,
directors, officers or employees involving the expenditure of more than $1,000
as to any one individual, including, any business directly or indirectly
controlled by any such person, or $5,000 for all such contracts for commitments
in the aggregate for all such individuals.
Section 3.24 Derivative Contracts. The Bank is not a party to and
has not agreed to enter into an exchange-traded or over-the-counter swap,
forward, future, option, cap, floor or collar financial contract or agreement,
or any other contract or agreement not included in the Financial Statements of
the Bank which is a financial derivative contract (including various
combinations thereof) ("Derivative Contracts"), except for those Derivatives
Contracts set forth in DISCLOSURE SCHEDULE 3.24.
Section 3.25 Deposits. To the best of the Bank's knowledge, none
of the deposits of the Bank is a "brokered" deposit or is subject to any
encumbrance, legal restraint or other legal process, and no portion of such
deposits represents a deposit of any affiliate of the Bank, except as set forth
in DISCLOSURE SCHEDULE 3.25.
Section 3.26 Accounting Controls. The Bank has devised and
maintained systems of internal accounting control designed to provide
reasonable assurances that: (i) all material transactions are executed in
accordance with general or specific authorization of the Board of Directors and
the duly authorized executive officers of the Bank; (ii) all material
transactions are recorded as necessary to permit the preparation of financial
statements in conformity with generally accepted accounting principles
consistently applied with respect to institutions such as the Bank or any other
criteria applicable to such financial statements, and to maintain proper
accountability for items therein; (iii) access to the material properties and
assets of the Bank is permitted only in accordance with general or specific
authorization of the Board of Directors and the duly authorized executive
officers of the Bank; and (iv) the recorded accountability for items is
compared with the actual levels at reasonable intervals and appropriate actions
taken with respect to any differences.
Section 3.27 Deposit Insurance. The deposit accounts of the Bank
are insured by the Bank Insurance Fund in accordance with the provisions of the
Federal Deposit Insurance Act (the "FDIA"); the Bank has paid all regular
premiums and special assessments and filed all reports required under the FDIA.
Section 3.28 Information Statement and Regulatory Filings. None of
the information relating to the Bank to be included or incorporated by
reference in (i) the proxy statement included in the private placement
memorandum to be mailed to the shareholders of the Bank (the "Proxy
Statement/PPM"), (ii) the registration statement on Form S-3 covering
SouthTrust Shares issuable
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to the holders of Bank Shares in the Merger (the "Post-Effective Registration
Statement") or (iii) any other documents or registration statements to be filed
with the any Regulatory Authority in connection with the transactions
contemplated by this Agreement will, at the respective times such documents are
filed with any Regulatory Authority and, in the case of the Post-Effective
Registration Statement, if applicable, when it becomes effective and, with
respect to the Proxy Statement/PPM, when mailed, be false or misleading with
respect to any material fact, or omit to state any material fact necessary in
order to make the statements therein not misleading or, in the case of the
Proxy Statement/PPM or any amendment thereof or supplement thereto, be false or
misleading with respect to any material fact, or omit to state any material
fact necessary to correct any statement in any early communication with respect
to the solicitation of any proxy, if required. The legal responsibility for the
contents of the information supplied by the Bank and relating to the Bank which
is either included or incorporated by reference in the Proxy Statement/ PPM,
the Post Effective Registration Statement or any other document or registration
statement filed with any Regulatory Authority shall be and remain with the
Bank.
Section 3.29 Untrue Statements and Omissions. No representation or
warranty contained in Article III of this Agreement or in the Disclosure
Schedules of the Bank contains any untrue statement of a material fact or omits
to state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF SOUTHTRUST AND ST-BANK
SouthTrust, ST-Sub (with respect to Section 4.4 only) and ST-Bank
(with respect to Sections 4.2 and 4.4 and at the Effective Time of the Merger
only) hereby represent and warrant to the Bank as follows as of the date hereof
and as of all times up to and including the Effective Time of the Merger
(except as otherwise provided):
Section 4.1 Organization and Related Matters of SouthTrust. (a)
SouthTrust is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. SouthTrust has the corporate
power and authority to own or lease all of its properties and assets and to
carry on its business as now conducted, or as proposed to be conducted pursuant
to this Agreement, and SouthTrust is licensed or qualified to do business in
each jurisdiction in which the nature of the business conducted by SouthTrust,
or the character or location of the properties and assets owned or leased by
SouthTrust makes such licensing or qualification necessary, except where the
failure to be so licensed or qualified (or steps necessary to cure such
failure) would not have a Material Adverse Effect on SouthTrust. SouthTrust is
duly registered as a bank holding company under the Bank Holding Bank Act of
1956, as amended. True and correct copies of the Restated Certificate of
Incorporation of SouthTrust and the Bylaws of SouthTrust, each as amended to
the date hereof, have been delivered to the Bank.
(b) SouthTrust has in effect all federal, state, local
and foreign governmental, regulatory and other authorizations, permits and
licenses necessary for it to own or lease its
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properties and assets and to carry on its business as now conducted, the
absence of which, either individually or in the aggregate, would have a
Material Adverse Effect on SouthTrust.
(c) The minute books of SouthTrust contain complete and
accurate records in all material respects of all meetings and other corporate
actions held or taken by the shareholders and Boards of Directors of
SouthTrust.
Section 4.2 Organization and Related Matters of ST-Bank. ST-Bank
is, or as of the Effective Time of the Merger will be, a Texas banking
corporation duly organized, validly existing and in good standing under the
laws of the State of Texas.
Section 4.3 Capitalization. As of March 31, 1998, the authorized
capital stock of SouthTrust consisted of 500,000,000 shares of common stock,
par value $2.50 per share, 160,437,557 shares (which includes the rights
associated with such shares pursuant to that certain Rights Agreement dated as
of February 22, 1989 between SouthTrust and Mellon Bank, N.A.) of which are
issued and outstanding (exclusive of any such shares held in the treasury of
SouthTrust as of the date hereof), and 5,000,000 shares of preferred stock, par
value $1.00 per share, none of which is issued and outstanding as of the date
hereof. All issued and outstanding SouthTrust Shares have been duly authorized
and validly issued, and all such shares are fully paid and nonassessable.
Section 4.4 Authorization. The execution, delivery, and
performance of this Agreement, and the consummation of the transactions
contemplated hereby and in any related agreements, have been, or as of the
Effective Time of the Merger will have been, duly authorized by the Boards of
Directors of SouthTrust, ST-Sub and ST-Bank, and no other corporate proceedings
on the part of SouthTrust, ST-Sub or ST-Bank are or will be necessary to
authorize this Agreement and the transactions contemplated hereby. This
Agreement, when duly authorized, will be the valid and binding obligation of
SouthTrust, ST-Sub and ST-Bank enforceable against each in accordance with its
terms, except 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 and to
principles of public policy. Neither the execution, delivery or performance of
this Agreement nor the consummation of the transactions contemplated hereby
will (i) violate any provision of the Restated Certificate of Incorporation or
Bylaws of SouthTrust, the Certificate of Incorporation or the Bylaws of ST-Sub
or the Articles of Incorporation or Bylaws of ST-Bank or, (ii) to SouthTrust's
knowledge and assuming that any necessary Consents including, but not limited
to, those of the Regulatory Authorities referred to herein are duly obtained,
(A) violate, conflict with, result in a breach of any provisions of, constitute
a default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, result in the termination of, accelerate the
performance required by or result in the creation of any lien, security
interest, charge or other encumbrance upon any of the properties or assets of
SouthTrust or ST-Bank under, any of the terms, conditions or provisions of any
material note, bond, mortgage, indenture, deed of trust, license, permit,
lease, agreement or other instrument or obligation to which SouthTrust, ST-Sub
or ST-Bank is a party, or by which SouthTrust, ST-Sub or ST-Bank or any of
their respective properties or assets may be bound or affected, (B) violate any
statute, code, ordinance, rule, regulation, judgment, order, writ, decree or
injunction applicable to SouthTrust, ST-Sub or ST-Bank or any of their
respective material properties or assets, except for (X) such conflicts,
breaches or defaults as are set forth in DISCLOSURE
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SCHEDULE 4.4; and (Y) with respect to (B) and (C) above, such as individually
or in the aggregate will not have a Material Adverse Effect on SouthTrust.
Section 4.5 Financial Statements. (a) SouthTrust has made
available to the Bank copies of the consolidated financial statements of
SouthTrust as of and for the two (2) fiscal years ended immediately prior to
the date of this Agreement, and as of and for the periods ended after the most
recent fiscal year and prior to the date of this Agreement. SouthTrust will
make available to the Bank, as soon as practicable following the preparation of
additional consolidated financial statements for each subsequent fiscal period
or year of SouthTrust ended after the date of this Agreement and prior to the
Effective Time of the Merger, the consolidated financial statements of
SouthTrust as of and for such subsequent fiscal period or year (such
consolidated financial statements, unless otherwise indicated, being
hereinafter referred to collectively as the "Financial Statements of
SouthTrust").
(b) Each of the Financial Statements of SouthTrust
(including the related notes) have been or will be prepared in all material
respects in accordance with generally accepted accounting principles, which
principles have been or will be consistently applied during the periods
involved, except as otherwise noted therein, and the books and records of
SouthTrust have been, are being, and will be maintained in all material
respects in accordance with applicable legal and accounting requirements and
reflect only the actual transactions. Each of the Financial Statements of
SouthTrust (including the related notes) fairly presents or will fairly present
the consolidated financial position of SouthTrust as of the respective dates
thereof and fairly presents or will fairly present the results of operations of
SouthTrust for the respective periods therein set forth.
(c) Since December 31, 1997, SouthTrust has not incurred
any obligation or liability (contingent or otherwise) that has or might
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on SouthTrust, except obligations and liabilities (i) which are
accrued or reserved against in the Financial Statements of SouthTrust or
reflected in the notes thereto, and (ii) which were incurred after December 31,
1997 in the ordinary course of business consistent with past practices. Since
December 31, 1997, and except for the matters described in (i) and (ii) above,
SouthTrust has not incurred or paid any obligation or liability which would
have a Material Adverse Effect on SouthTrust.
Section 4.6 Absence of Certain Changes or Events. Since December
31, 1997, there has not been any Material Adverse Effect on SouthTrust, and, to
the knowledge of SouthTrust, no fact or condition exists which might reasonably
be expected to cause such a Material Adverse Effect on SouthTrust in the
future.
Section 4.7 Legal Proceedings, Etc. Except as set forth on
DISCLOSURE SCHEDULE 4.7 hereto, or as disclosed in any registration statement
filed by SouthTrust with the SEC and made available to the Bank hereunder,
SouthTrust is not a party to any, and there are no pending, or, to the
knowledge of SouthTrust, threatened, legal, administrative, arbitral or other
proceedings, claims, actions, causes of action or governmental investigations
of any nature against SouthTrust challenging the validity or propriety of the
transactions contemplated by this Agreement or which would be required to be
reported by SouthTrust pursuant to Item 103 of Regulation S-K promulgated by
the SEC.
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Section 4.8 Insurance. SouthTrust has in effect insurance
coverage with insurers which, in respect of amounts, premiums, types and risks
insured, constitutes reasonably adequate coverage against all risks customarily
insured against by institutions comparable in size and operation to SouthTrust.
Section 4.9 Consents and Approvals. Except for (i) the Consents
of the Regulatory Authorities; (ii) the approval of this Agreement by the
respective shareholders of ST-Bank and the Bank; (iii) the filing of Articles
of Merger with the Department; and (iv) as set forth on DISCLOSURE SCHEDULE
4.9, no Consents of any person are necessary in connection with the execution
and delivery by SouthTrust and ST-Bank and the consummation of the Merger and
the other transactions contemplated hereby.
Section 4.10 Accounting, Tax, Regulatory Matters. SouthTrust has
not taken or agreed to take any action, has no knowledge of any fact and has
not agreed to any circumstance that would (i) prevent the transactions
contemplated hereby from qualifying as a reorganization within the meaning of
Section 368 of the Code, (ii) materially impede or delay receipt of any Consent
from any Regulatory Authority referred to in this Agreement, or (iii)
materially impede the ability of SouthTrust to account for the transactions
contemplated by this Agreement as a pooling of interests.
Section 4.11 Information Statement and Regulatory Filings. None of
the information relating to SouthTrust or any of its subsidiaries to be
included or incorporated by reference in (i) the proxy statement included in
the Proxy Statement/PPM, (ii) the Post-Effective Registration Statement, or
(iii) any other documents or registration statements to be filed with any
Regulatory Authority in connection with the transactions contemplated by this
Agreement will, at the respective times such documents or other registration
statements are filed with any Regulatory Authority and, in the case of the
Post-Effective Registration Statement, if applicable, when it becomes effective
and, with respect to the Proxy Statement/PPM, when mailed, be false or
misleading with respect to any material fact, or admits to state any material
fact necessary in order to make statements therein not misleading or, in the
case of the Proxy Statement/PPM or any amendment thereof or supplement thereto,
be false or misleading with respect to any material fact or admit to state any
material fact necessary to correct any statement in any early communication
with respect to the solicitation of any proxy, if required. The legal
responsibility for the contents of the information supplied by SouthTrust and
its subsidiaries relating to SouthTrust and its subsidiaries which is either
included or incorporated by reference in the Proxy Statement/PPM, the
Post-Effective Registration Statement, or any other document or registration
statement filed with any Regulatory Authority shall be and remain with
SouthTrust.
Section 4.12 No Broker's or Finder's Fees. Neither SouthTrust nor
any of its subsidiaries, affiliates or employers has employed any broker or
finder or incurred any liability for any broker's fees, commissions or finder's
fees in connection with this Agreement or the consummation of any of the
transactions contemplated herein.
Section 4.13 SEC Filings. SouthTrust has filed all forms, reports
and documents required to be filed by SouthTrust with the SEC since December
31, 1994, other than registration statements on Form S-3 and S-8 (collectively,
the "SouthTrust SEC Reports"). The SouthTrust SEC Reports (i) at the time they
were filed, complied in all material respects with the applicable requirements
of the Securities Act and the Exchange Act, as the case may be, (ii) did not at
the time they were filed
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(or if amended or superseded by a prior to the date of this Agreement, then on
the date of such filing) contain any untrue statement of a material fact or
omit to state a material fact required to be stated in such SouthTrust SEC
Reports or necessary in order to make the statements in such SouthTrust SEC
Reports, in the light of the circumstances under which they were made, not
misleading.
Section 4.14 Compliance with Laws. SouthTrust has conducted its
business and owned its assets in accordance with all applicable federal,
foreign, state and local laws, regulations and orders and is in compliance with
such laws, regulations and orders, except for such violations or
non-compliance, which when taken together as a whole, will not have a Material
Adverse Effect on SouthTrust. Except as disclosed in DISCLOSURE SCHEDULE 4.14,
SouthTrust:
(a) is not in violation of any laws, regulations, rules,
orders or permits applicable to its business or the employees or agents or
representatives conducting its business, except for violations which
individually or in the aggregate do not have and will not have a Material
Adverse Effect on SouthTrust; and
(b) has not received a notification or communication from
any agency or department or federal, state or local government or the
Regulatory Authorities or the staff thereof, (i) asserting that SouthTrust is
not in compliance with any laws, regulations, rules, orders or permits which
such governmental authority or Regulatory Authority enforces, where such
non-compliance is reasonably likely to have a Material Adverse Effect on
SouthTrust, (ii) threatening to revoke any permit, the revocation of which is
reasonably likely to have a Material Adverse Effect on SouthTrust, (iii)
requiring SouthTrust to enter into any cease and desist order, formal
agreement, commitment or memorandum of understanding, or to adopt any
resolutions or similar undertakings, or (iv) directing, restricting or
limiting, or purporting to direct, restrict or limit in any manner, the
operations of SouthTrust, including, without limitation, any restrictions on
the payment of dividends.
Section 4.15 Untrue Statements and Omissions. No representation or
warranty contained in Article IV of this Agreement or in the Disclosure
Schedules of SouthTrust or ST-Bank contains any untrue statement of a material
fact or omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
ARTICLE V
COVENANTS AND AGREEMENTS
Section 5.1 Conduct of the Business of the Bank. (a) During the
period from the date of this Agreement to the Effective Time of the Merger, the
Bank shall (i) conduct its business in the usual, regular and ordinary course
consistent with past practice and prudent banking and business principles, (ii)
use its best efforts to maintain and preserve intact its business organization,
employees, goodwill with customers and advantageous business relationships and
retain the services of its officers and key employees, and (iii) except as
required by law or regulation, take no action which would adversely affect or
delay the ability of the Bank or SouthTrust to obtain any Consent from any
Regulatory Authorities or other approvals required for the consummation of the
transactions contemplated hereby or to perform its covenants and agreements
under this Agreement.
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(b) During the period from the date of this Agreement to
the Effective Time of the Merger, except as required by law or regulation, the
Bank shall not, without the prior written consent of SouthTrust:
(i) change, delete or add any provision of or to the Articles of
Incorporation or Bylaws of the Bank;
(ii) change the number of shares of the authorized, issued or
outstanding capital stock of the Bank, including any
issuance, purchase, redemption, split, combination or
reclassification thereof, or issue or grant any option,
warrant, call, commitment, subscription, right or agreement
to purchase relating to the authorized or issued capital
stock of the Bank, declare, set aside or pay any dividend or
other distribution with respect to the outstanding capital
stock of the Bank;
(iii) incur any material liabilities or material obligations (other
than deposit liabilities and short-term borrowings in the
ordinary course of business), whether directly or by way of
guaranty, including any obligation for borrowed money, or
whether evidenced by any note, bond, debenture, or similar
instrument, except in the ordinary course of business
consistent with past practice;
(iv) make any capital expenditures individually in excess of
$25,000, or in the aggregate in excess of $50,000 other than
pursuant to binding commitments existing on June 30, 1998 and
disclosed in a Disclosure Schedule delivered pursuant to
Article III of this Agreement or in the annexed DISCLOSURE
SCHEDULE 5.1(B)(IV) and other than expenditures necessary to
maintain existing assets in good repair, provided, that the
Bank will notify SouthTrust of such expenditures;
(v) except as disclosed on DISCLOSURE SCHEDULE 5.1(B)(V) sell,
transfer, convey or otherwise dispose of any parcel of real
property (including "other real estate owned") or interest
therein or any tangible or intangible personal property
having a book value in excess of or in exchange for
consideration in excess of $50,000 for each such parcel or
interest;
(vi) except as provided for elsewhere in this Agreement, pay any
bonuses to any executive officer except pursuant to the terms
of an enforceable written agreement described in DISCLOSURE
SCHEDULE 5.1(B)(VI); enter into any new, or amend in any
respect any existing, employment, consulting, non-competition
or independent contractor agreement with any person, except
as may be required by law and except as contemplated by this
Agreement; alter the terms of any existing incentive bonus or
commission plan; adopt any new or amend in any material
respect any existing employee benefit plan, except as may be
required by law or to maintain the tax qualified status of
any such plan; grant any general increase in compensation to
its employees as a class or to its officers except for
non-executive
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officers in the ordinary course of business and consistent
with past practices and policies or except in accordance with
the terms of an enforceable written agreement; grant any
material increases in fees or other increases in compensation
or in other benefits to any of its directors; or effect any
change in any material respect in retirement benefits to any
class of employees or officers, except as required by law;
(vii) enter into or extend any agreement, lease or license relating
to real property, tangible or intangible personal property or
any service or other function (including, without
limitation), data processing or bankcard functions) relating
to the Bank that involves an aggregate of $25,000;
(viii) increase or decrease the rate of interest paid on time
deposits or on certificates of deposit, except in a manner
and pursuant to policies consistent with the Bank's past
practices;
(ix) purchase or otherwise acquire any investment securities for
its own account having an average remaining life to maturity
greater than five years, or any asset-backed security, other
than those issued or guaranteed by the Government National
Mortgage Association, the Federal National Mortgage
Association or Home Loan Mortgage Corporation, or any
Derivative Contract;
(x) acquire twenty percent (20%) or more of the assets or equity
securities of any person or acquire direct or indirect
control of any person, other than in connection with (A) any
internal reorganization or consolidation involving the Bank
which has been approved in advance in writing by SouthTrust,
(B) foreclosures in the ordinary course of business, (C)
acquisitions of control by a banking subsidiary in a
fiduciary capacity or (D) the creation of new subsidiaries
organized to conduct and continue activities otherwise
permitted by this Agreement; or
(xi) commence any cause of action or proceeding other than in
accordance with past practice or settle any action, claim,
arbitration, complaint, criminal prosecution, demand letter,
governmental or other examination or investigation, hearing,
inquiry or other proceeding against the Bank for material
money damages or restrictions upon any of its operations.
Section 5.2 Current Information. During the period from the date
of this Agreement to the Effective Time of the Merger or the time of
termination or abandonment of this Agreement, the Bank will cause one or more
of its designated representatives to confer on a regular and frequent basis
with representatives of SouthTrust and to report the general status of the
ongoing operations of the Bank. The Bank will promptly notify SouthTrust of any
material change in the normal course of business or the operations or the
properties of the Bank, any governmental complaints,
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investigations or hearings (or communications indicating that the same may be
contemplated) affecting the Bank, the institution or the threat of material
litigation, claims, threats or causes of action involving the Bank, and will
keep SouthTrust fully informed of such events. The Bank will furnish to
SouthTrust, promptly after the preparation and/or receipt by the Bank thereof,
copies of its unaudited periodic financial statements and call reports for all
applicable fiscal periods of the Bank ended after the date of this Agreement
and prior to the Closing Date and such financial statements and call reports
shall, upon delivery to SouthTrust, be treated, for purposes of Section 3.3
hereof, as among the Financial Statements of the Bank and the Call Reports of
the Bank.
Section 5.3 Access to Properties; Personnel and Records. (a) So
long as this Agreement shall remain in effect, the Bank, shall permit
SouthTrust or its agents reasonable access, during normal business hours, to
the properties of the Bank, and shall disclose and make available (together
with the right to copy) to SouthTrust and to its internal auditors, loan review
officers, attorneys, accountants and other representatives, all books, papers
and records relating to the assets, stock, properties, operations, obligations
and liabilities of the Bank, including all books of account (including the
general ledger), tax records, minute books of directors' and shareholders'
meetings, organizational documents, bylaws, contracts and agreements, filings
with any regulatory agency, examination reports, correspondence with regulatory
or taxing authorities, documents relating to assets, titles, abstracts,
appraisals, consultant's reports, plans affecting employees, securities
transfer records and stockholder lists, and any other assets, business
activities or prospects in which SouthTrust may have a reasonable interest, and
the Bank, shall use their reasonable best efforts to provide SouthTrust and its
representatives access to the work papers of the Bank's accountants. The Bank
shall not be required to provide access to or to disclose information where
such access or disclosure would violate or prejudice the rights of any
customer, would contravene any law, rule, regulation, order or judgment or
would violate any confidentiality agreement; provided that the Bank, shall
cooperate with SouthTrust in seeking to obtain Consents from appropriate
parties under whose rights or authority access is otherwise restricted. The
foregoing rights granted to SouthTrust shall not, whether or not and regardless
of the extent to which the same are exercised, affect the representations and
warranties made in this Agreement by the Bank.
(b) All information furnished by the parties hereto
pursuant to this Agreement shall be treated as the sole property of the party
providing such information until the consummation of the Merger contemplated
hereby and, if such transaction shall not occur, the party receiving the
information shall return to the party which furnished such information, all
documents or other materials containing, reflecting or referring to such
information, shall use its best efforts to keep confidential all such
information, and shall not directly or indirectly use such information for any
competitive or other commercial purposes. The obligation to keep such
information confidential shall continue for two (2) years from the date the
proposed transactions are abandoned but shall not apply to (i) any information
which (A) the party receiving the information was already in possession of
prior to disclosure thereof by the party furnishing the information, (B) was
then available to the public, or (C) became available to the public through no
fault of the party receiving the information; or (ii) disclosures pursuant to a
legal requirement or in accordance with an order of a court of competent
jurisdiction or regulatory agency; provided that the party which is the subject
of any such legal requirement or order shall use its best efforts to give the
other party at least ten (10) business days prior notice thereof. Each party
hereto acknowledges and agrees that a breach of any of their respective
obligations under this Section 5.3 would cause the other irreparable harm for
which there
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is no adequate remedy at law, and that, accordingly, each is entitled to
injunctive and other equitable relief for the enforcement thereof in addition
to damages or any other relief available at law.
Section 5.4 Approval of the Bank Shareholders. The Bank will take
all steps necessary under applicable laws to obtain the approval of its
shareholders of this Agreement and the transactions contemplated herein,
including, if necessary, giving notice of, convening and holding a meeting of
its shareholders at such time as may be mutually agreed to by the parties for
the purpose of approving this Agreement and the transactions contemplated
hereby and for such other purposes consistent with the complete performance of
this Agreement as may be necessary or desirable. The Board of Directors of the
Bank will recommend to its shareholders the approval of this Agreement and the
transactions contemplated hereby and the Bank will use its best efforts to
obtain the necessary approvals by its shareholders of this Agreement and the
transactions contemplated hereby.
Section 5.5 No Other Bids. The Bank, acting through any director
or officer or other agent shall not now, nor shall it authorize or knowingly
permit any officer, director or employee of, or any investment banker,
attorney, accountant or other representative retained by the Bank, to solicit
or encourage, including by way of furnishing information, any inquiries or the
making of any proposal which may reasonably be expected to lead to any takeover
proposal with respect to the Bank. As used in this Section 5.5, "takeover
proposal" shall mean any proposal for a merger or other business combination
involving the Bank or for the acquisition of a significant equity interest in
the Bank, or for the acquisition of a significant portion of the assets of the
Bank.
Section 5.6 Affiliates. Concurrently with the execution of this
Agreement, the Bank shall deliver to SouthTrust a letter identifying all
persons who are anticipated to be, at the time this Agreement is submitted for
approval to the shareholders of the Bank, "affiliates" of the Bank for purposes
of Rule 144 under the Securities Act. The Bank shall use its reasonable efforts
to cause each person who is identified as an "affiliate" in the letter referred
to above to deliver to SouthTrust not later than thirty (30) days prior to the
Effective Time of the Merger, a written agreement, substantially in the form of
EXHIBIT 5.6, providing that such person will not sell, pledge, transfer, or
otherwise dispose of the Bank Shares 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 SouthTrust shares to be received by such
person upon consummation of the Merger except in compliance with the Securities
Act, and the rules and regulations promulgated thereunder and until such time
as the financial results covering at least thirty (30) days of combined
operations of SouthTrust and the Bank have been published within the meaning of
Section 201.01 of the SEC's Codification of Financial Reporting Policies. If
the Merger will qualify for pooling-of-interests accounting treatment, the
SouthTrust Shares issued to such affiliates of the Bank in exchange for the
Bank Shares shall not be transferable until such time as the financial results
covering at least thirty (30) days of combined operations of SouthTrust and the
Bank have been published within the meaning of Section 201.01 of the SEC's
Codification of Financial Reporting Policies regardless of whether each such
person has provided the written agreement referred to in this Section 5.6.
Section 5.7 Maintenance of Properties. The Bank, will maintain
its properties and assets in satisfactory condition and repair for the purposes
for which they are intended, ordinary wear and tear excepted.
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Section 5.8 Environmental Audits. At the written request and
expense of SouthTrust, which request will be timely made, the Bank will, with
respect to each parcel of real property that the Bank owns, leases or
subleases, procure and deliver to SouthTrust, at least thirty (30) days prior
to the Effective Time of the Merger, an environmental audit, which audit shall
be reasonably acceptable to and shall be conducted by a firm reasonably
acceptable to SouthTrust.
Section 5.9 Title Insurance. At the written request and expense
of SouthTrust, which request will be timely made, the Bank will, with respect
to each parcel of real property that the Bank, owns, leases or subleases,
procure and deliver to SouthTrust, at least thirty (30) days prior to the
Effective Time of the Merger, owner's title insurance issued in such amounts
and by such insurance company reasonably acceptable to SouthTrust, which policy
shall be free of all material exceptions to SouthTrust's reasonable
satisfaction.
Section 5.10 Surveys. At the written request and expense of
SouthTrust, which request will be timely made, with respect to each parcel of
real property as to which a title insurance policy is to be procured pursuant
to Section 5.9, the Bank, will procure and deliver to SouthTrust at least
thirty (30) days prior to the Effective Time of the Merger, a survey of such
real property, which survey shall be reasonably acceptable to and shall be
prepared by a licensed surveyor reasonably acceptable to SouthTrust, disclosing
the locations of all improvements, easements, sidewalks, roadways, utility
lines and other matters customarily shown on such surveys and showing access
affirmatively to public streets and roads and providing the legal description
of the property in a form suitable for recording and insuring the title thereof
(the "Survey"). The Survey shall not disclose any survey defect or encroachment
from or onto such real property that has not been cured or insured over prior
to the Effective Time of the Merger.
Section 5.11 Consent to Assign and Use Leased Premises. With
respect to the leases disclosed or DISCLOSURE SCHEDULE 3.14(B), the Bank will
use its best efforts to obtain all Consents necessary or appropriate to
transfer and assign all right, title and interest of the Bank to the Surviving
Corporation to permit the use and operation of the leased premises by the
Surviving Corporation.
Section 5.12 Conforming Accounting and Reserve Policies and
Accruals. At the written request of SouthTrust, the Bank shall immediately
prior to the Closing establish and take such reserves and accruals as
SouthTrust reasonably shall request to conform the Bank's loan, accrual,
reserve and other accounting policies to the policies of SouthTrust and its
affiliates, provided however, such requested conforming adjustment shall not be
taken into account as having a Material Adverse Effect on the Bank. The Bank
agrees that, as of the Closing Date, it will have fully accrued, on a prorata
basis, all amounts required to be accrued by it pursuant to the profit sharing
plan in place at the date of this Agreement.
Section 5.13 Publicity. Except as otherwise required by law or the
rules of the NASDAQ/ NMS, so long as this Agreement is in effect, neither the
Bank nor SouthTrust shall, nor shall SouthTrust permit any of its respective
subsidiaries or affiliates to, issue or cause the publication of any press
release or other public announcement with respect to, or otherwise make any
other public statement concerning, the transactions contemplated by this
Agreement without the consent of the other party, which consent shall not be
unreasonably withheld. In the event such press release, public statement or
public announcement is required by law, the announcing party will give the
other
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party advance notice of such and provide a copy of the proposed release,
statement or announcement to the other party.
Section 5.14 Compliance Matters. Prior to the Effective Time of
the Merger, the Bank shall take, or cause to be taken, all steps reasonably
requested by SouthTrust to cure any deficiencies in regulatory compliance by
the Bank, including compliance with Regulations Z and CC of the FRB); provided
that SouthTrust shall not be responsible for discovering or have any obligation
to disclose the existence of such defects to the Bank nor shall SouthTrust have
any liability resulting from such deficiencies or attempts to cure them.
Section 5.15 Exemption Under Anti-Takeover Statutes. Prior to the
Effective Time of the Merger, the Bank will use its best efforts to take all
steps required to exempt the transactions contemplated by this Agreement from
any applicable state anti-takeover law.
Section 5.16 Bonuses. As of the Effective Time of the Merger, the
bonus plan described in DISCLOSURE SCHEDULE 5.1(B)(IV) (the "Bonus Plan")
shall, to the extent of any bonus payments required to be made thereunder for
the year ending December 31, 1998, be assumed by SouthTrust, except that if the
transactions contemplated by this Agreement are consummated, bonuses under the
Bonus Plan for the year ending December 31, 1998 shall be paid to employees of
the Bank, who are otherwise entitled to receive a bonus thereunder (the
"Eligible Employees"), at such time as bonuses in respect of such year are paid
to employees of SouthTrust pursuant to similar plans maintained by SouthTrust.
Notwithstanding the foregoing, if, after the Effective Time of the Merger but
prior to the date (as modified above) that a bonus under the Bonus Plan is due
to be paid, an Eligible Employee ceases to be an employee of the Bank, such
Eligible Employee shall be entitled to receive, within 30 days of the date of
such cessation of employment, such Eligible Employee's pro rata portion of the
bonus payment required to be paid under the Bonus Plan for the year ending
December 31, 1998, provided that in no event shall a bonus be paid to an
Eligible Employee under the Bonus Plan if such Eligible Employee is terminated
by the Bank, ST-Bank or SouthTrust for "cause." For purposes of this Section
5.16(b), the term "cause" shall mean (i) material dishonesty or similar conduct
by an Eligible Employee, including embezzlement or theft of money or property
by the Eligible Employee, (ii) an Eligible Employee's continued or repeated
failure to perform the Eligible Employee's duties as an employee of the Bank,
including negligence or recklessness in the performance of such duties, and
(iii) an Eligible Employee's failure to follow the reasonable instructions of
(or to discharge or perform satisfactorily the duties assigned to the Eligible
Employee by) the Board of Directors of the Bank or any authorized executive
officer of the Bank.
ARTICLE VI
ADDITIONAL COVENANTS AND AGREEMENTS
Section 6.1 Best Efforts; Cooperation. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use its best
efforts promptly to take, or cause to be taken, all actions and to do, or cause
to be done, all things necessary, proper or advisable under applicable laws and
regulations, or otherwise, including, but not limited to, attempting to obtain
all necessary Consents, and the completion, execution and filing of applicable
Articles of Merger with
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the Department to consummate and make effective, as soon as practicable, the
transactions contemplated by this Agreement.
Section 6.2 Regulatory Matters. (a) Promptly following the
execution and delivery of this Agreement, SouthTrust and the Bank shall cause
to be prepared and filed all required applications and filings with the
Regulatory Authorities which are necessary or contemplated for the obtaining of
the Consents of the Regulatory Authorities or consummation of the Merger. Such
applications and filings shall be in such form as may be prescribed by the
respective government agencies and shall contain such information as they may
require. The parties hereto will cooperate with each other and use their best
efforts to prepare and execute all necessary documentation, to effect all
necessary or contemplated filings and to obtain all necessary or contemplated
permits, consents, approvals, rulings and authorizations of government agencies
and third parties which are necessary or contemplated to consummate the
transactions contemplated by this Agreement, including, without limitation,
those required or contemplated from the Regulatory Authorities, and the
shareholders of the Bank. Each of the parties shall have the right to review
and approve in advance, which approval shall not be unreasonably withheld, any
filing made with, or written material submitted to, any government agencies in
connection with the transactions contemplated by this Agreement.
(b) Each party hereto will furnish the other party with
all information concerning itself, its subsidiaries, directors, trustees,
officers, shareholders and depositors, as applicable, and such other matters as
may be necessary or advisable in connection with any statement or application
made by or on behalf of any such party to any governmental body in connection
with the transactions, applications or filings contemplated by this Agreement.
Upon request, the parties hereto will promptly furnish each other with copies
of written communications received by them or their respective subsidiaries
from, or delivered by any of the foregoing to, any governmental body in respect
of the transactions contemplated hereby.
Section 6.3 Other Matters. (a) The parties acknowledge that
nothing in this Agreement shall be construed as constituting an employment
agreement between SouthTrust or any of its affiliates and any officer or
employee of the Bank, or an obligation on the part of SouthTrust or any of its
affiliates to employ any such officers or employees.
(b) The parties agree that, except as otherwise provided
in paragraph (c) below, appropriate steps shall be taken to terminate all
employee benefit plans of the Bank, as of the Effective Time of the Merger or
as promptly as practicable thereafter, provided, however, that SouthTrust may,
at its option, continue to maintain and operate any or all of the employee
benefit plans of the Bank after, and for any period of time after, the
Effective Time of the Merger. Following the termination of all such plans, and
except as otherwise provided in Section 6.3(c) hereof, SouthTrust agrees that
the officers and employees of the Bank who the Surviving Corporation employs
shall be eligible to participate in SouthTrust's employee benefit plans,
including welfare and fringe benefit plans on the same basis as and subject to
the same conditions as are applicable to any newly-hired employee of
SouthTrust; provided, however, that:
(i) with respect to SouthTrust's group medical
insurance plan, SouthTrust shall credit each such employee
for eligible expenses incurred by such employee and his or
her dependents (if applicable) under the Bank's group medical
insurance plan
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during the current calendar year for purposes of satisfying
the deductible provisions under SouthTrust's plan for such
current year; and
(ii) credit for each such employee's past service
with the Bank, prior to the Effective Time of the Merger
("Past Service Credit") shall be given by SouthTrust to
employees for purposes of:
(A) determining vacation and sick leave
benefits and accruals, in accordance with the
established policies of SouthTrust;
(B) except as otherwise provided in
paragraph (c) below, establishing eligibility for
participation in and vesting under SouthTrust's
employee benefit plans (including welfare and fringe
benefit plans), and for purposes of determining the
scheduling of vacations and other determinations
which are made based on length of service; provided,
however, notwithstanding anything contained in this
Agreement to the contrary, Past Service Credit shall
not be given to any such employee for purposes of
establishing eligibility for participation in the
1990 Discounted Stock Plan of SouthTrust; and
(C) determining satisfaction of
applicable waiting periods under said plans for
pre-existing conditions.
(c) The parties further agree that any existing 401(k)
plan of the Bank will either be merged into the SouthTrust Corporation
Employee's Profit Sharing Plan (the "ST PS Plan") effective as of January 1 of
the year following the Effective Time of the Merger or, if so elected by
SouthTrust, terminated as of 12:00 p.m. of the day immediately preceding the
Effective Time of the Merger. The determination as to whether the 401(k) plan
shall be terminated or merged into the ST PS Plan shall be made by SouthTrust.
From and after January 1 following the Effective Time of the Merger for
purposes of determining eligibility to participate in, and vesting in accrued
benefits under, the ST PS Plan and the SouthTrust Corporation Revised
Retirement Income Plan (the "ST Retirement Plan") employment by the Bank shall
be credited as if it were employment by SouthTrust, but such service shall not
be credited for purposes of determining benefit accrual under the ST Retirement
Plan.
Section 6.4 Indemnification. (a) The Bank agrees to indemnify,
defend and hold harmless SouthTrust and its subsidiaries, and each of their
respective present and former officers, directors, employees and agents, from
and against all losses, expenses, claims, damages or liabilities to which any
of them may become subject under applicable laws (including, but not limited
to, the Securities Act or the Exchange Act), and will reimburse each of them
for any legal, accounting or other expenses reasonably incurred in connection
with investigating or defending any such actions, whether or not resulting in
liability, insofar as such losses, expenses, claims, damages or liabilities
arise out of or are based upon any untrue statement or alleged untrue statement
of material fact contained in the Registration Statement, the Proxy Statement
or any application for the approval of the transactions contemplated by this
Agreement filed with any Regulatory Authority or arise out of or are based upon
the omission or alleged omission to state therein a material fact necessary to
make the statements therein, in light of the circumstances under which they
were made not misleading.
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(b) For a period of three (3) years after the Effective
Time of the Merger, SouthTrust shall indemnify, defend and hold harmless each
person entitled to indemnification from the Bank (each, an "Indemnified Party")
against all liabilities arising out of actions or omissions occurring at or
prior to the Effective Time of the Merger (including, without limitation, the
transactions contemplated by this Agreement (to the same extent and subject to
the conditions set forth in the Bank's and the Bank's Articles of Incorporation
and Bylaws, in each case as in effect on the date hereof.
(c) After the Effective Time of the Merger, directors,
officers and employees of the Bank, the Bank, except for the indemnification
rights provided for in this Section 6.4 above, shall have indemnification
rights having prospective application only. These prospective indemnification
rights shall consist of such rights to which directors, officers and employees
of SouthTrust and its subsidiaries would be entitled under the Restated
Certificate or Certificate or Articles of Incorporation and Bylaws of
SouthTrust or the particular subsidiary for which they are serving as officers,
directors or employees and under such directors' and officers' liability
insurance policy as SouthTrust may then make available to officers, directors
and employees of SouthTrust and its subsidiaries.
(d) SouthTrust shall use its best efforts (and the Bank shall
cooperate prior to the Effective Time of the Merger in these efforts) to
maintain in effect for a period of three (3) years after the Effective Time of
the Merger the Bank's existing directors' and officers' liability insurance
policy (provided that SouthTrust may substitute therefor (i) policies of at
least the same coverage and amounts containing terms and conditions which are
substantially no less advantageous or (ii) with the consent of the Bank (given
prior to the Effective Time of the Merger) any other policy with respect to
claims arising from facts or events which occurred prior to the Effective Time
of the Merger and covering persons who are currently covered by such insurance;
provided, that SouthTrust shall not be obligated to make premium payments for
such three (3)-year period in respect of such policy (or coverage replacing
such policy) which exceed, for the portion related to the Bank's and the Bank's
directors and officers, 150% of the annual premium payments on the Bank's
current policy, as in effect as of the date of this Agreement (the "Maximum
Amount"). If the amount of premium that is necessary to maintain or procure
such insurance coverage exceeds the Maximum Amount, SouthTrust shall use its
reasonable efforts to maintain the most advantageous policies of directors' and
officers' liability insurance obtainable for a premium equal to the Maximum
Amount.
(e) If SouthTrust or any of its successors or assigns
shall consolidate with or merge into any other person and shall not be the
continuing and surviving person of such consolidation or merger, or shall
transfer all or substantially all of its assets to any person, then, and in
each case, proper provisions shall be made so that the successors and assigns
of SouthTrust shall assume the obligations set forth in this Section 6.4.
Section 6.5 Current Information. During the period from the date
of this Agreement to the Effective Time of the Merger or the time of
termination or abandonment hereunder, SouthTrust will cause one or more of its
designated representatives to confer on a regular and frequent basis with the
Bank and to report with respect to the general status and the ongoing
operations of SouthTrust.
Section 6.6 Registration Statements. Within ten (10) business
days after the Effective Time of the Merger, SouthTrust shall prepare and cause
the Post-Effective Registration Statement
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to be filed with the SEC, provided, however, that if information relating to
the Bank, its agents or representatives, including its shareholders, has not
been supplied or has not been supplied sufficiently in advance to permit
SouthTrust to file the Post-Effective Registration Statement within the
required period of time, the ten business day period will not commence until
the last date such required information was provided to SouthTrust by, for or
on behalf of the Bank. SouthTrust shall provide a copy of the Post-Effective
Registration Statement, in its then current form, to the Bank within the five
(5) business day period prior to the Closing Date. SouthTrust shall use its
best efforts to cause the Post-Effective Registration Statement to be declared
effective under the Securities Act within forty five (45) days of the Effective
Time of the Merger and will use its best efforts to maintain the effectiveness
of the Post-Effective Registration Statement for a period of two (2) years
following the Effective Time of the Merger to permit the shareholders of the
Bank who receive SouthTrust Shares in the Merger to sell such SouthTrust Shares
through the NASDAQ/NMS. The Post-Effective Registration Statement will, at the
time it becomes effective, shall in all material respects conform to the
requirements of the Securities Act and the general rules and regulations of the
SEC under the Securities Act. The Bank will promptly furnish to SouthTrust the
information required to be included in the Post-Effective Registration
Statement with respect to its business and affairs before it is filed with the
SEC and again before any amendments are filed. SouthTrust shall take all
actions required to qualify or obtain exemptions from such qualifications for
the SouthTrust Shares to be issued in connection with the transactions
contemplated by this Agreement under applicable state blue sky securities laws,
as appropriate.
Section 6.7 Reservation of Shares. SouthTrust shall reserve for
issuance such number of SouthTrust Shares as shall be necessary (i) to pay the
consideration contemplated in this Agreement and (ii) to comply with the
provisions of Section 2.2(b). If at any time the aggregate number of SouthTrust
Shares remaining unissued (or in treasury) shall not be sufficient to meet such
obligation, SouthTrust shall take all appropriate actions to increase the
amount of its authorized common stock.
Section 6.8 Consideration. SouthTrust shall issue the SouthTrust
Shares and shall pay or cause to be paid all cash payments as and when the same
shall be required to be issued and paid pursuant to this Agreement.
ARTICLE VII
MUTUAL CONDITIONS TO CLOSING
The obligations of SouthTrust, ST-Sub and ST-Bank, on the one hand,
and the Bank, on the other hand, to consummate the transactions provided for
herein shall be subject to the satisfaction of the following conditions, unless
waived as hereinafter provided for:
Section 7.1 Shareholder Approval. The Merger shall have been
approved by the requisite vote of the shareholders of the Bank and the sole
shareholder of ST-Sub and ST-Bank.
Section 7.2 Regulatory Approvals. All necessary Consents of the
Regulatory Authorities shall have been obtained and all notice and waiting
periods required by law to pass after receipt of such Consents shall have
passed, and all conditions to consummation of the Merger set forth in such
Consents shall have been satisfied.
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Section 7.3 Litigation. There shall be no actual or threatened
causes of action, investigations or proceedings (i) challenging the validity or
legality of this Agreement or the consummation of the transactions contemplated
by this Agreement, or (ii) seeking damages in connection with the transactions
contemplated by this Agreement, or (iii) seeking to restrain or invalidate the
transactions contemplated by this Agreement, which, in the case of (i) through
(iii), and in the reasonable judgment of either SouthTrust or the Bank, based
upon advice of counsel, would have a Material Adverse Effect with respect to
the interests of SouthTrust or the Bank, as the case may be.
Section 7.4 Registration Statement. The registration statement on
Form S-4, if applicable, shall have been declared effective by the SEC, no stop
order suspending the effectiveness of such registration statement shall have
been issued, no action, suit, proceeding or investigation by the SEC to suspend
the effectiveness of such registration statement shall have been initiated, and
SouthTrust shall have received all state securities laws, or "Blue Sky" permits
or other authorizations, or confirmations as to the availability of exemptions
from registration requirements, as may be necessary to issue the SouthTrust
Shares pursuant to the terms of this Agreement.
ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS OF
SOUTHTRUST, ST-SUB AND ST-BANK
The obligations of SouthTrust, ST-Sub and ST-Bank to consummate the
Merger are subject to the fulfillment of each of the following conditions,
unless waived as hereinafter provided for:
Section 8.1 Representations and Warranties. The representations
and warranties of the Bank set forth in this Agreement and in any certificate
or document delivered pursuant hereto shall be true and correct as of the date
of this Agreement and shall be true and correct as of all times up to and
including the Effective Time of the Merger (as though made on and as of the
Effective Time of the Merger except to the extent such representations and
warranties are by their express provisions made as of a specified date and
except for changes therein contemplated by this Agreement).
Section 8.2 Performance of Obligations. The Bank shall have
performed all covenants, obligations and agreements required to be performed by
it under this Agreement prior to the Effective Time of the Merger.
Section 8.3 Certificate Representing Satisfaction of Conditions.
The Bank shall have delivered to SouthTrust a certificate dated as of the
Closing Date as to the satisfaction of the matters described in Sections 8.1
and 8.2 hereof, and such certificate shall be deemed to constitute additional
representations, warranties, covenants, and agreements of the Bank under
Article III of this Agreement.
Section 8.4 Certified Resolutions. The Bank shall have delivered
to SouthTrust certified copies of resolutions duly adopted by the Board of
Directors of the Bank in reasonable detail as SouthTrust's counsel shall
request, and certified copies of all applicable documents evidencing the
approval by the shareholders of the Bank as is necessary to authorize the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby.
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Section 8.5 Absence of Adverse Facts. No Material Adverse Effect
or any fact, event or condition which could reasonably be expected to result in
a Material Adverse Effect on the Bank and no fact, event or condition which
could render the Merger or the other transactions contemplated by this
Agreement impractical because of any state of war, national emergency, banking
moratorium or general suspension of trading on NASDAQ/NMS, the New York Stock
Exchange or any other national securities exchange, shall have occurred between
the date of this Agreement and the Effective Time of the Merger.
Section 8.6 Opinion of Counsel. SouthTrust shall have received
an opinion of counsel from Jenkens & ▇▇▇▇▇▇▇▇▇, P.C. or other counsel to the
Bank acceptable to SouthTrust in substantially the form set forth in EXHIBIT
8.6 hereof.
Section 8.7 Consents Under Agreements. The Bank shall have
obtained the consent or approval of each person (other than the Consents of the
Regulatory Authorities) whose consent or approval shall be required in order to
permit the succession by the Surviving Corporation to any obligation, right or
interest of the Bank (other than all Consents listed on DISCLOSURE SCHEDULE
3.14(C)) under any loan or credit agreement, note, mortgage, indenture, lease,
license, or other agreement or instrument, except those for which failure to
obtain such consents and approvals would not in the opinion of SouthTrust,
individually or in the aggregate, have a Material Adverse Effect on the
Surviving Corporation or upon the consummation of the transactions contemplated
by this Agreement.
Section 8.8 Consents Relating to Leased Real Property. The Bank
shall have delivered evidence that each Consent set forth in DISCLOSURE
SCHEDULE 3.14(C) shall have been obtained by the Bank.
Section 8.9 Material Condition. There shall not be any action
taken, or any statute, rule, regulation or order enacted, entered, enforced or
deemed applicable to the Merger by any Regulatory Authority which, in
connection with the grant of any Consent by any Regulatory Authority, imposes,
in the judgment of SouthTrust, any material adverse requirement upon SouthTrust
or its subsidiaries, including, without limitation, any requirement that
SouthTrust sell or dispose of any significant amount of the assets of the Bank
or any other banking or other subsidiary of SouthTrust, provided that, except
for any such requirement relating to the above-described sale or disposition of
any significant assets of the Bank or any banking or other subsidiary of
SouthTrust, no such term or condition imposed by any Regulatory Authority in
connection with the grant of any Consent by any Regulatory Authority shall be
deemed to be a material adverse requirement unless it materially differs from
terms and conditions customarily imposed by any such entity in connection with
the acquisition of banks under similar circumstances.
Section 8.10 Dissenters. The holders of not more than five percent
(5%) of the outstanding the Bank Shares shall have elected to exercise their
right to dissent from the Merger and demand payment in cash for the fair or
appraised value of their shares.
Section 8.11 Increase in Borrowing. As of the date of any
Financial Statement of the Bank and any Call Report of the Bank subsequent to
the execution of this Agreement, including the date of the Financial Statements
of the Bank, and the Call Reports of the Bank that immediately precede the
Effective Time of the Merger, there shall not have been any material increase
in the loan
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agreements, notes or borrowing arrangements described in (i) through (iii) of
Section 3.5 and as set forth on DISCLOSURE SCHEDULE 3.5.
Section 8.12 Pooling. SouthTrust shall not have received an
opinion from its independent accountants determining that, after taking into
account the holders of the outstanding Bank Shares who shall have elected to
exercise their right to dissent from the Merger and demand payment in cash for
the fair value of their shares, the transactions contemplated by this Agreement
fail to qualify for pooling of interests accounting treatment.
ARTICLE IX
CONDITIONS TO OBLIGATIONS OF THE BANK
The obligation of the Bank to consummate the Merger as contemplated
herein is subject to each of the following conditions, unless waived as
hereinafter provided for:
Section 9.1 Representations and Warranties. The representations
and warranties of SouthTrust, ST-Sub and ST-Bank contained in this Agreement or
in any certificate or document delivered pursuant to the provisions hereof
shall be true and correct as of the date of this Agreement and as of all times
up to and including the Effective Time of the Merger (as though made on and as
of the Effective Time of the Merger except to the extent such representations
and warranties are by their express provisions made as of a specified date and
except for changes therein contemplated by this Agreement).
Section 9.2 Performance of Obligations. SouthTrust shall have
performed all covenants, obligations and agreements required to be performed by
them and under this Agreement prior to the Effective Time of the Merger.
Section 9.3 Certificate Representing Satisfaction of Conditions.
SouthTrust shall have delivered to the Bank a certificate dated as of the
Effective Time of the Merger as to the satisfaction of the matters described in
Sections 9.1 and 9.2 hereof, and such certificate shall be deemed to constitute
additional representations, warranties, covenants, and agreements of
SouthTrust, ST-Sub and ST-Bank, as appropriate, under Article IV of this
Agreement.
Section 9.4 Certified Resolutions. SouthTrust, ST-Sub and ST-Bank
shall have delivered to the Bank certified copies of resolutions duly adopted
by the Board of Directors of SouthTrust, ST-Sub and ST-Bank and certified of
resolutions duly adopted by the sole shareholders of ST-Bank and ST-Sub
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, in each case, in such reasonable detail
as the Bank's counsel shall request.
Section 9.5 Absence of Adverse Facts. No Material Adverse Effect
or any fact, event or condition which could reasonably be expected to result in
a Material Adverse Effect on SouthTrust on a consolidated basis shall have
occurred between the date of this Agreement and the Effective Time of the
Merger.
Section 9.6 Consents Under Agreements. SouthTrust and ST-Bank
shall have obtained the consent or approval of each person (other than the
Consents of Regulatory Authorities) whose
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consent or approval shall be required in connection with the transactions
contemplated hereby under any loan or credit agreement, note, mortgage,
indenture, lease, license or other agreement or instrument, except those for
which failure to obtain such consents and approvals would not, in the judgment
of the Bank, individually or in the aggregate, have a Material Adverse Effect
upon the consummation of the transactions contemplated hereby.
Section 9.7 Opinion of Counsel. The Bank shall have received the
opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ & White LLP, counsel to SouthTrust substantially
the form set forth in EXHIBIT 9.7.
Section 9.8 SouthTrust Shares. The SouthTrust Shares to be issued
in connection herewith shall be duly authorized and validly issued and, fully
paid and nonassessable, issued free of preemptive rights and free and clear of
all liens and encumbrances created by or through SouthTrust.
Section 9.9 Tax Opinion. The Bank shall have received an opinion
of Jenkens & ▇▇▇▇▇▇▇▇▇, P.C. or the Bank's independent public accountants, on
or before the date on which the Proxy Statement/PPM of the Bank is to be mailed
to holders of the Bank Shares, to the effect, among others, that the Merger
will constitute a reorganization within the meaning of Section 368 of the Code
and that no gain or loss will be recognized by the shareholders of the Bank to
the extent that they receive SouthTrust Shares in exchange for their the Bank
Shares in the Merger.
ARTICLE X
TERMINATION, WAIVER AND AMENDMENT
Section 10.1 Termination. This Agreement may be terminated and
the Merger abandoned at any time prior to the Effective Time of the Merger:
(a) by the mutual consent in writing of the Board of
Directors of SouthTrust and the Bank; or
(b) by the Board of Directors of SouthTrust or the Bank
if the Merger shall not have occurred on or prior to November 30, 1998, or on
such other date as may be mutually agreed to by SouthTrust and the Bank,
provided that the failure to consummate the Merger on or before such date is
not as a result of any breach of any of the representations, warranties,
covenants or other agreements contained herein by the party electing to
terminate pursuant to this Section 10.1(b);
(c) by the Board of Directors of SouthTrust or the Bank
(provided that the terminating party is not then in breach of any
representation, warranty, covenant or other agreement contained in this
Agreement) in the event of an inaccuracy of any representation or warranty, or
a material breach of any covenant or agreement of the other party 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 inaccuracy or
breach;
(d) by the Board of Directors of SouthTrust or the Bank
(provided that the terminating party is not done in breach in any
representation, warranty, covenant or other agreement contained in this
Agreement) in the event that any of the conditions precedent to the obligations
of
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such party to consummate the Merger (other than as contemplated by Section
10.1(e) of this Agreement) cannot be satisfied or fulfilled by the date
specified in Section 10.1(b) of this Agreement; or
(e) by the Board of Directors of SouthTrust or the Bank in
the event (i) any Consent of any Regulatory Authority required for consummation
of the Merger and the other transactions contemplated in this Agreement shall
have been denied by final non-appealable action of such Regulatory Authority or
if any action taken by such Regulatory Authority is not appealed within the
time limit for appeal, or (ii) the shareholders of the Bank fail to vote their
approval of this Agreement and the Merger and the transactions contemplated in
this Agreement as required by applicable law including, but not limited to, at
any shareholders' meeting where the transactions were presented to such
shareholders for approval and voted upon; or
(f) by the Bank pursuant to Section 1.2(b) of this Agreement.
Section 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 terminate and become void, without liability on behalf of
any party, and have no effect except that the breaching party shall not be
relieved of any liability for an incurred willful breach of any representation,
warranty, covenant or agreement giving rise to such termination and except that
the provisions described in Section 10.5 below shall survive any such
termination; provided, however, that in the event of a breach of any
representation or warranty where such breach does not involve a knowing
misrepresentation, the sole remedy for such breach shall be termination of this
Agreement.
Section 10.3 Amendments. To the extent permitted by law, this
Agreement may be amended by a subsequent writing signed by each of SouthTrust,
ST-Sub, ST-Bank and the Bank.
Section 10.4 Waivers. Subject to Section 11.11 hereof, prior to or at
the Effective Time of the Merger, SouthTrust and ST-Bank, on the one hand, and
the Bank, on the other hand, shall have the right to waive any default in the
performance of any term of this Agreement by the other, to waive or extend the
time for the compliance or fulfillment by the other of any and all of the
other's obligations under this Agreement and to waive any or all of the
conditions to its obligations under this Agreement, except any condition,
which, if not satisfied, would result in the violation of any law or any
applicable governmental regulation.
Section 10.5 Non-Survival of Representations and Warranties. The
representations, warranties, covenants or agreements in this Agreement or in
any instrument delivered by SouthTrust, ST-Bank or the Bank shall not survive
the Effective Time of Merger, provided, however, that (a) Sections 5.3(b),
6.3(b), 6.4 and 6.6 of this Agreement shall survive the Effective Time of the
Merger, and (b) any representation, warranty or agreement in any agreement,
contract, report, opinion, undertaking or other document or instrument
delivered hereunder in whole or in part by any person other than SouthTrust,
ST-Bank, or the Bank (or directors and officers thereof in their capacities as
such) shall survive the Effective Time of the Merger; provided that no
representation, warranty or agreement of SouthTrust, ST-Bank, or the Bank
contained herein shall be deemed to be terminated or extinguished so as to
deprive SouthTrust or ST-Bank, on the one hand, and the Bank, on the other
hand, of any defense at law or in equity which any of them otherwise would have
to any claim
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against them by any person, including, without limitation, any shareholder or
former shareholder of either party. No representation or warranty in this
Agreement shall be affected or deemed waived by reason of the fact that
SouthTrust, ST-Bank, or the Bank and/or its representatives knew or should have
known that any such representation or warranty was, is, might be or might have
been inaccurate in any respect.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Entire Agreement. This Agreement and the documents
referred to herein contain the entire agreement among SouthTrust, ST-Sub,
ST-Bank and the Bank with respect to the transactions contemplated hereunder
and this Agreement supersedes all prior arrangements or understandings with
respect thereto, whether written or oral. Nothing in this Agreement, expressed
or implied, is intended to confer upon any person, firm, corporation or entity,
other than the parties hereto and their respective successors, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
Section 11.2 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:
"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 of 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 persons
for which a person described in clause (ii) acts in any such capacity.
"Consent" shall mean a consent, approval or authorization,
waiver, clearance, exemption or similar affirmation by any person pursuant to
any agreement, contract, lease, permit, law, regulation or order.
"Environmental Law" means any federal, state, local or
foreign law, statute, ordinance, rule, regulation, code, license, permit,
authorization, approval, consent, order, judgment, decree, injunction or
agreement with any regulatory agency relating to (i) the protection,
preservation or restoration of the environment (including, without limitation,
air, water vapor, surface water, groundwater, drinking water supply, surface
soil, subsurface soil, plant and animal life or any other natural resource),
and/or (ii) the use, storage, recycling, treatment, generation, transportation,
processing, handling, labeling, production, release or disposal of any
substance presently listed, defined, designated or classified as hazardous,
toxic, radioactive or dangerous, or otherwise regulated, whether by type or by
substance as a component; "Loan Property" means any property owned by the Bank
or in which the Bank 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; "Hazardous Material" means any pollutant, contaminant, or
hazardous substance within the meaning of the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. ss. 9601 et seq., or any
similar federal, state or local law; and "Participation Facility" means any
facility in which the Bank has engaged in Participation in the Management of
such facility, and, where required
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by the context, includes the owner or operator of such facility, but only with
respect to such facility; "Participation in the Management" of a facility has
the meaning set forth in 40 C.F.R. ss. 300.1100(c).
"Regulatory Authorities" shall mean, collectively, the
Federal Trade Commission (the "FTC"), the United States Department of Justice
(the "Justice Department"), the Board of Governors of the Federal Reserve
System (the "FRB"), the Office of Thrift Supervision (including its
predecessor, the Federal Home Loan Bank Board) (the "OTS"), the Office of the
Comptroller of the Currency (the "OCC"), the Federal Deposit Insurance
Corporation (the "FDIC"), and all state regulatory agencies having jurisdiction
over the parties and their respective bank subsidiaries, the National
Association of Securities Dealers, Inc., all national securities exchanges and
the Securities and Exchange Commission (the "SEC").
"Material Adverse Effect," with respect to any party, shall
mean any event, change or occurrence which, together with any other event,
change or occurrence, has a material adverse impact on (i) the financial
position, business or results of operations of such party and its subsidiaries,
taken as a whole, or (ii) the ability of such party to perform its obligations
under this Agreement or to consummate the Merger and the other transactions
contemplated by this Agreement, but shall exclude any change with respect to,
or effect on, such party resulting from changes in general economic conditions
and changes in prevailing interest and deposit rates.
Section 11.3 Notices. All notices or other communications which are
required or permitted hereunder shall be in writing and sufficient if delivered
personally or sent by first class or registered or certified mail, postage
prepaid, telegram or telex or other facsimile transmission addressed as
follows:
If to the Bank:
SecurityBank Texas
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Jenkens & ▇▇▇▇▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax (▇▇▇) ▇▇▇-▇▇▇▇
If to ST-Bank or SouthTrust, then to:
SouthTrust Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ & White LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Fax (▇▇▇) ▇▇▇-▇▇▇▇
All such notices or other communications shall be deemed to
have been delivered (i) upon receipt when delivery is made by hand, (ii) on the
third (3rd) business day after deposit in the United States mail when delivery
is made by first class, registered or certified mail, and (iii) upon
transmission when made by telegram, telex or other facsimile transmission if
evidenced by a sender transmission completed confirmation.
Section 11.4 Severability. If any term, provision, covenant or
restriction contained in this Agreement is held by a court of competent
jurisdiction or other competent authority to be invalid, void or unenforceable
or against public or regulatory policy, the remainder of the terms, provisions,
covenants and restrictions contained in this Agreement shall remain in full
force and effect and in no way shall be affected, impaired or invalidated, if,
but only if, pursuant to such remaining terms, provisions, covenants and
restrictions the Merger may be consummated in substantially the same manner as
set forth in this Agreement as of the later of the date this Agreement was
executed or last amended.
Section 11.5 Costs and Expenses. Expenses incurred by the Bank on the
one hand and SouthTrust on the other hand, in connection with or related to the
authorization, preparation and execution of this Agreement, the solicitation of
shareholder approval and all other matters related to the closing of the
transactions contemplated hereby, including all fees and expenses of agents,
representatives, counsel and accountants employed by either such party or its
affiliates, shall be borne solely and entirely by the party which has incurred
same.
Section 11.6 Captions. The captions as to contents of particular
articles, sections or paragraphs contained in this Agreement and the table of
contents hereto are inserted only for convenience and are in no way to be
construed as part of this Agreement or as a limitation on the scope of the
particular articles, sections or paragraphs to which they refer.
Section 11.7 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same document with the same force
and effect as though all parties had executed the same document.
Section 11.8 Governing Law. This Agreement is made and shall be
governed by and construed in accordance with the laws of the State of Texas
without respect to its conflicts of laws principles.
Section 11.9 Persons Bound; No Assignment. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors, distributees, and assigns, but notwithstanding the
foregoing, this Agreement may not be assigned by any party hereto
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unless the prior written consent of the other parties is first obtained (other
than by ST-Bank to another affiliate of SouthTrust).
Section 11.10 Exhibits and Schedules. Each of the exhibits and
schedules attached hereto is an integral part of this Agreement and shall be
applicable as if set forth in full at the point in this Agreement where
reference to it is made. Any matter disclosed in any of the Schedules to this
Agreement shall be deemed incorporated by reference into each other schedule
thereto and disclosure in each such schedule.
Section 11.11 Waiver. The waiver by any party of the performance of
any agreement, covenant, condition or warranty contained herein shall not
invalidate this Agreement, nor shall it be considered a waiver of any other
agreement, covenant, condition or warranty contained in this Agreement. A
waiver by any party of the time for performing any act shall not be deemed a
waiver of the time for performing any other act or an act required to be
performed at a later time. The exercise of any remedy provided by law, equity
or otherwise and the provisions in this Agreement for any remedy shall not
exclude any other remedy unless it is expressly excluded. The waiver of any
provision of this Agreement must be signed by the party or parties against whom
enforcement of the waiver is sought. This Agreement and any exhibit, memorandum
or schedule hereto or delivered in connection herewith may be amended only by a
writing signed on behalf of each party hereto.
Section 11.12 Construction of Terms. Whenever used in this Agreement,
the singular number shall include the plural and the plural the singular.
Pronouns of one gender shall include all genders. Accounting terms used and not
otherwise defined in this Agreement have the meanings determined by, and all
calculations with respect to accounting or financial matters unless otherwise
provided for herein, shall be computed in accordance with generally accepted
accounting principles, consistently applied. References herein to articles,
sections, paragraphs, subparagraphs or the like shall refer to the
corresponding articles, sections, paragraphs, subparagraphs or the like of this
Agreement. The words "hereof," "herein," and terms of similar import shall
refer to this entire Agreement. Unless the context clearly requires otherwise,
the use of the terms "including," "included," "such as," or terms of similar
meaning, shall not be construed to imply the exclusion of any other particular
elements. Unless expressly provided otherwise in this Agreement, references to
a party's "judgment" mean that party's reasonable judgment, and references to
the "approval" or "consent" of a party mean that party's approval or consent
which shall not be unreasonably withheld.
Section 11.13 Arbitration. Any controversy or claim arising out of or
relating to this Agreement or the breach thereof shall be settled by
arbitration in Dallas, Texas, by one (1) arbitrator (unless the parties
mutually agree to accept multiple arbitrators) in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, and
judgment upon the award rendered by the Arbitrator(s) may be entered in any
court having jurisdiction thereof. The cost of any such arbitration shall be
borne equally by the parties involved unless the arbitrator(s) deem such
division of costs to be inequitable, in which event the arbitrator(s) may
allocate the costs of arbitration among the parties thereto as they deem just
and equitable under the circumstances. The determination of the arbitrators
shall be conclusive upon the parties to the arbitration.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered, and their respective seals hereunto affixed, by
their officers thereunto duly authorized, and have caused this Agreement to be
dated as of the date and year first above written.
[CORPORATE SEAL] SECURITYBANK TEXAS
By:
---------------------------------
ATTEST: Name:
-------------------------------
By:
----------------------------
Name:
--------------------------
Its:
--------------------------
[CORPORATE SEAL] SOUTHTRUST BANK OF TEXAS
By:
---------------------------------
ATTEST: Name:
-------------------------------
Its:
--------------------------------
By:
---------------------------
Name:
--------------------------
Its:
--------------------------
[CORPORATE SEAL] SOUTHTRUST CORPORATION
By:
---------------------------------
ATTEST: Name:
-------------------------------
Its:
By: --------------------------------
---------------------------
Name:
-------------------------
Its:
--------------------------
[CORPORATE SEAL] SOUTHTRUST OF ALABAMA, INC.
By:
---------------------------------
ATTEST: Name:
-------------------------------
Its:
By: --------------------------------
---------------------------
Name:
-------------------------
Its:
--------------------------
44
