AMENDMENT NUMBER ONE
TO
AMENDED AND RESTATED AGREEMENT AND PLAN OF REORGANIZATION
THIS AMENDMENT NUMBER ONE TO AMENDED AND RESTATED AGREEMENT AND PLAN OF
REORGANIZATION ("Amendment Number One") is made and entered into as of this 20th
day of August, 1990, by and among THE CITIZENS AND SOUTHERN CORPORATION ("C&S"),
CITIZENS AND SOUTHERN GEORGIA CORPORATION ("CSGA"), THE CITIZENS AND SOUTHERN
NATIONAL BANK ("CSNB") and FIRST FEDERAL SAVINGS BANK OF BRUNSWICK, GEORGIA
("Brunswick").
This Amendment Number One is made pursuant to Section 11.4 of the
Amended and Restated Agreement and Plan of Reorganization ("Agreement"), dated
as of April 19, 1988, and amended and restated as of November 20, 1989, by and
among C&S, CSGA, CSNB and Brunswick and supplemented by the Supplement to
Amended and Restated Agreement and Plan of Reorganization executed by C&S/Sovran
Corporation (formerly named Avantor Financial Corporation) ("CSC") and in
accordance with resolutions adopted by the Boards of Directors of C&S, CSGA,
CSNB, Brunswick and CSC authorizing the preparation, execution, and delivery of
this Amendment Number One. Terms with initial capitalization which are not
otherwise defined in this Amendment Number One shall have the meaning set forth
in the Agreement.
PREAMBLE
The respective Boards of Directors of the Parties have determined that
it is the best interests of their respective institutions to restructure the
transactions contemplated by the Agreement such that the acquisition of
Brunswick ("Acquisition") will be effected in a manner that will permit
Brunswick to be operated as a commercial bank subsidiary, the deposits of which
are insured by the SAIF of the FDIC, rather than operated as a thrift subsidiary
and will consist of the following series of transactions: (i) the conversion of
Brunswick from a federally chartered stock savings bank organized under the laws
of the United States to a state chartered stock savings and loan association
organized under the laws of the State of Georgia; (ii) the conversion of
Brunswick from a state chartered stock savings and loan association organized
under the laws of the State of Georgia to a state chartered bank organized under
the laws of the State of Georgia, the deposits of which are insured by the SAIF
maintained by the FDIC; (iii) the organization of Brunswick Interim, Inc.
("Interim"), as a wholly owned subsidiary of C&S (or CSC in the event the CSC
reorganization described herein is consummated); and (iv) the merger of Interim
into and with Brunswick.
In consideration of the above, the mutual warranties, representations,
covenants and agreements set forth in the Agreement and herein, the Parties
agree as follows:
1. All matters provided in the Preamble to the Agreement which are
inconsistent with this Amendment Number One and the Preamble set forth herein
are hereby revised to conform to this Amendment Number One.
2. All references to "Avantor Financial Corporation" which are set
forth in the Agreement shall be revised to reflect the change in name of such
entity to "C&S/Sovran Corporation," and all references to "Avantor" shall be
changed to "CSC."
3. Section 1.1 of the Agreement shall be amended by adding the phrase
"as amended by the Amendment Number One to Amended and Restated Agreement and
Plan of Reorganization dated as of August 20, 1990, by and among C&S, CSGA,
CSNB, and Brunswick and supplemented by the Supplement to Amendment Number One
executed by CSC" to the end of such Section 1.1.
4. Section 1.2 of the Agreement shall be deleted in its entirety and
replaced with the following:
1.2 "Articles of Merger" shall mean the Articles of Merger to be
executed by Brunswick and Brunswick Interim and filed with the Georgia
Commissioner as contemplated by Section 2.1(c) of this Agreement.
5. Section 1.26 of the Agreement shall be revised by substituting the
words "State of Georgia" for the words "United States" where such words appear
in the last line of Section 1.26.
6. Section 1.28 shall be revised by substituting the words "1 through
9," for the words "1 through 7," where such words appear in the first line of
Section 1.28.
7. Section 1.39 shall be revised to include "CSC" immediately before
C&S in the first and second lines of Section 1.39.
8. Article One of the Agreement shall be amended by adding the
following new Sections which shall provide:
1.51 "Amended Brunswick Articles" shall mean the Amended and Restated
Articles of Incorporation of Brunswick set forth in Exhibit 8 and shall
reflect the Bank Conversion.
1.52 "Brunswick Interim" shall refer to Brunswick Interim, Inc., a
corporation to be organized under the laws of the State of Georgia as a
wholly owned subsidiary of C&S (or CSC in the event the CSC Reorganization
is consummated).
1.53 "Bank Conversion" shall refer to the conversion of Brunswick
Interim from a state chartered stock savings and loan association organized
under the laws of the State of Georgia to a state chartered bank organized
under the laws of the State of Georgia as contemplated by Section 2.1(b) of
this Agreement and as reflected in the Amended Brunswick Articles.
1.54 "Plan of Thrift Conversion" shall refer to the Plan of Thrift
Conversion set forth in Exhibit 9 relating to the Thrift Conversion.
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1.55 "Thrift Conversion" shall refer to the conversion of Brunswick
from a federally chartered stock savings bank to a state charted stock
savings and loan association organized under the laws of the State of
Georgia as contemplated by Section 2.1(a) of this Agreement and as set
forth in the Plan of Thrift Conversion.
9. Section 2.1 of the Agreement shall be deleted in its entirety and
replaced with the following:
2.1 Transactions. The Parties agree that the conversion of Brunswick
from a federally chartered stock savings bank to a state chartered savings
and loan association organized and existing under the laws of the State of
Georgia and then to a state chartered bank organized and existing under the
laws of the State of Georgia is necessary for and is a condition precedent
to the consummation of the Merger. The Parties acknowledge that in order to
ensure that the Thrift Conversion and the Bank Conversion are not effected
without Consummation of the Merger, the Parties will, if practicable, cause
the Thrift Conversion and the Bank Conversion to be effected prior to but
on the same day as consummation of the Merger. The Parties further
acknowledge that neither this Agreement, the Plan of Thrift Conversion,
nor the Amended Brunswick Articles will obligate Brunswick to consummate
either conversion other than as a condition precedent to the Merger.
(a) Thrift Conversion. Subject to the terms of this Agreement and the
Plan of Thrift Conversion, on the Effective Date and immediately prior to
the consummation of the Bank Conversion and the Merger, Brunswick shall
convert from a federally chartered stock savings bank to a state chartered
savings and loan association organized and existing under the Laws of the
State of Georgia in accordance with the provisions of and with the effect
provided by 12 U.S.C. SS 1464(i)(3) and Sections 7-1-293(e) and 7-1-550
through 7-1-555 of the Georgia Financial Institutions Code. Upon
consummation of the Thrift Conversion, Brunswick shall be governed by the
laws of the State of Georgia. The Thrift Conversion shall be consummated
pursuant to the terms of this Agreement and the Plan of Thrift Conversion,
both of which have been approved and adopted by the Board of Directors of
Brunswick. The Thrift Conversion shall be effected by filing the Plan of
Thrift Conversion as part of the articles of conversion to be filed with
the Georgia Commissioner pursuant to Section 7-1-551 of the Georgia
Financial Institutions Code.
(b) Bank Conversion. Subject to the terms of this Agreement, on the
Effective Date and immediately subsequent to the Thrift Conversion but
immediately prior to the consummation of the Merger, Brunswick shall
convert from a state chartered savings and loan association organized and
existing under the laws of the State of Georgia to a state chartered bank
organized and existing under the
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laws of the State of Georgia, the deposits of which are insured by SAIF,
in accordance with the provisions of and with the effect provided by 12
U.S.C. ss 1815 (d)(2)(G) and Sections 7-1-293(b) and Section 7-1-510
through 7-1-516 of the Georgia Financial Institutions Code. Upon consum-
mation of the Bank Conversion, Brunswick shall be governed by the laws of
the State of Georgia and shall continue to conduct its business under the
name "First Interim Bank of Brunswick, Georgia." The Bank Conversion
shall be consummated pursuant to the terms of this Agreement and the pro-
visions of the Amended Brunswick Articles, both of which have been
approved and adopted by the Board of Directors of Brunswick. The Bank
Conversion shall be effected by filing the Amended Brunswick Articles as
part of the articles of amendment to be filed with the Georgia Com-
missioner pursuant to Section 7-1-512 of the Georgia Financial
Institutions Code.
(c) Merger. Subject to the terms of this Agreement and the Plan of
Merger, on the Effective Date and after consummation of the Thrift Con-
version and the Bank Conversion, Brunswick Interim shall be merged into
and with Brunswick in accordance with the provisions of and with the
effect provided in 12 U.S.C. ss 1828(c) and Part 14 of Article 2 of
Chapter 1 of the Georgia Financial Institutions Code. Brunswick shall be
the entity resulting from the Merger and shall continue to exist and to be
governed by the laws of the State of Georgia as a commercial bank
operating under the name "The Citizens and Southern Bank of ▇▇▇▇▇ County."
The Merger shall be consummated pursuant to the terms of this Agreement
and the Plan of Merger, both of which have been approved and adopted to
the extent necessary by the Boards of Directors of C&S, CSGA, CSNB and
Brunswick and which shall be approved and adopted by the Board of
Directors of Brunswick Interim upon its organization. The Merger shall be
effected by filing the Articles of Merger with the Georgia Commissioner as
required by Section 7-1-532 of the Georgia Financial Institutions Code.
10. Subsection (c) of Section 2.3 of the Agreement shall be deleted
in its entirety and replaced with the following:
(c) Dissenting Stockholders of Brunswick. Any holder of shares of
Brunswick Common Stock who complies with Article 13 of the Georgia
Business Corporation Code (made applicable by Section 7-1-537 of the
Georgia Financial Institutions Code) shall be entitled to receive the fair
value of such shares pursuant to Section 14-2-1302 of the Georgia Business
Corporation Code from C&S in cash from the escrow account established by
Brunswick prior to the Effective Date pursuant to Section 5.14 of this
Agreement; provided, however, that no such payment shall be made to any
dissenting stockholder unless and until (i) the value thereof shall have
been agreed upon or finally determined as provided in Article 13 of the
Georgia Business Corporation Code and (ii) the dissenting stockholder has
surrendered
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to C&S the certificate or certificates representing the shares for which
such payment is being made.
11. Section 3.2 of the Agreement shall be deleted in its entirety
and replaced with the following:
3.2 Effective Date. The Merger shall become effective on the date
and time specified in the Certificate of Merger issued by the Secretary of
State of the State of Georgia. Unless otherwise mutually agreed upon in
writing by the Parties, the Effective Date shall be as soon as practicable
following the date that all of the conditions precedent specified in this
Agreement have been satisfied or waived by the Party or Parties permitted
to do so.
12. Section 3.4 of the Agreement shall be deleted in its entirety
and replaced with the following:
3.4 Dissenting Stockholders. Any holder of shares of Brunswick
Common Stock who complies with Article 13 of the Georgia Business
Corporation Code (made applicable by Section 7-1-537 of the Georgia
Financial Institutions Code) shall not be entitled to payment for his
shares of Brunswick Common Stock who becomes entitled to payment for his
shares pursuant to Section 14-2-1302 of Georgia Business Corporation Code
shall receive payment for such shares in cash (to be paid from the escrow
account established by Brunswick prior to the Effective Date pursuant to
Section 5.14 of this Agreement); provided, however, that no such payment
shall be made to any dissenting stockholder unless and until (i) the value
thereof shall have been agreed upon or finally determined as provided in
Article 13 of the Georgia Business Corporation Code and (ii) the dis-
senting stockholder shall have surrendered to C&S the certificate or
certificates representing the shares for which such payment is being made.
In the event that after the Effective Date a dissenting stockholder of
Brunswick fails to perfect, or effectively withdraws or loses his right to
appraisal of and payment for his shares, C&S shall issue and deliver the
shares of C&S Common Stock (and cash in lieu of any fractional share) to
which such holder of shares of Brunswick Common Stock is entitled under
Section 2.3 of this Agreement upon surrender by such holder of the cer-
tificate or certificates representing the shares of Brunswick Common Stock
held by him.
13. Section 4.1 of the Agreement shall be deleted in its entirety
and replaced with the following:
4.1 Organization, Standing and Authority. Brunswick is a federally
chartered stock savings bank duly organized, validly existing and in good
standing under the laws of the United States. The accounts of Brunswick
are insured by the SAIF to the extent
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provided in the Federal Deposit Insurance Act and the Home Owners' Loan
Act of 1933, as amended, and the rules and regulations promulgated there-
under. Brunswick has corporate power and authority to carry on its
business as now conducted and to own, lease and operate its assets,
properties and business, and to execute, adopt and deliver, as appropriate,
this Agreement, the Plan of Thrift Conversion, the Amended Brunswick
Articles and the Plan of Merger and perform their respective terms. Copies
of the charter of Brunswick (certified by the secretary of Brunswick)
and the by-laws of Brunswick (certified by the secretary of Brunswick),
which have been delivered to C&S, and copies of the corporate minutes of
Brunswick, which have been or will be made available by Brunswick to C&S
for review, are true and complete as now in effect on the date of this
Agreement.
14. Section 4.4 of the Agreement shall be deleted in its entirety
and replaced with the following:
4.4 Authority.
(a) The execution, adoption and delivery, as appropriate, of this
Agreement, the Plan of Thrift Conversion, the Amended Brunswick Articles
and the Plan of Merger and the consummation of the transactions contem-
plated herein or therein, including the Thrift Conversion, the Bank Con-
version and the Merger, have been duly and validly authorized by all
necessary corporate action in respect thereof on the part of Brunswick,
subject, with respect to this Agreement, the Plan of Thrift Conversion, the
Amended Brunswick Articles and the Plan of Merger, to the approval of the
stockholders of Brunswick. This Agreement, the Plan of Thrift Conversion,
the Amended Brunswick Articles and the Plan of Merger, to the approval of
the stockholders of Brunswick. This Agreement, the Plan of Thrift Con-
version, and the Amended Brunswick Articles and the Plan of Merger,
subject to the requisite approval of the stockholders of the Brunswick,
represent legal, valid and binding obligations of Brunswick, enforceable
against Brunswick in accordance with their terms (except in all cases as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and except that the availability of the
equitable remedy of specific performance or injunctive relief is subject
to the discretion of the court before which any proceeding may be brought).
(b) Neither the execution, adoption and delivery, as appropriate, of
this Agreement, the Plan of Thrift Conversion, the Amended Brunswick
Articles or the Plan of Merger by Brunswick, nor the consummation by
Brunswick of the transactions contemplated herein or therein, nor com-
pliance by Brunswick with any of the provisions hereof or thereof will (i)
conflict with or result in a breach of any provision of the charter or by-
laws of Brunswick, or (ii) constitute or result in the breach of any term,
condition or provision of, or
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constitute a default under, or give rise to any right of termination,
cancellation, or acceleration with respect to, or result in the creation
of any lien, charge or encumbrance upon, any property or assets of
Brunswick, pursuant to any note, bond, mortgage, indenture, license,
agreement, lease or other instrument or obligation to which it is a party
or by which its properties or assets may be subject, and that would, in
any such events, have a material adverse effect on the financial condition
or results of operations of the Brunswick Companies on a consolidated
basis or the transactions contemplated hereby, or (iii) subject to receipt
of the requisite approvals referred to in Section 9.6 of this Agreement,
to the knowledge of Brunswick's management, violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Brunswick or
any of its Subsidiaries or any of their properties or assets.
(c) Other than in connection or compliance with the provisions of the
applicable state corporate law, the 1933 Act, the 1934 Act and the rules
and regulations thereunder, applicable state securities laws and rules of
the National Association of Securities Dealers, Inc., and the New York
Stock Exchange, Inc.; and other than consents, authorizations, approvals,
or exemptions required from the Federal Reserve Board, the FDIC, the OTS
and the Georgia Commissioner; and other than notices to or filings with
the Internal Revenue Service or the Pension Benefit Guaranty Corporation
with respect to any employee benefit plans, no notice to, filing with,
authorization of, or exemption by, or consent or approval of any public
body or authority is necessary for the consummation by Brunswick of the
Thrift contemplated in this Agreement, the Plan of Thrift Conversion, the
Amended Brunswick Articles or the Plan of Merger.
15. Section 4.18 of the Agreement shall be revised by deleting the
last sentence of such Section 4.18 and substituting in its place the following:
All documents that Brunswick is responsible for filing with the OTS or any
other Regulatory Authority in connection with the Thrift Conversion, the
Bank Conversion or the Merger will comply as to form in all material
respects with the provisions of applicable law.
16. Section 5.1 of the Agreement shall be revised by including the
phrase "Except as contemplated by this Agreement, the Plan of Thrift Conversion,
the Amended Brunswick Articles or the Plan of Merger," immediately prior to the
first sentence of Section 5.1.
17. Section 5.12 of the Agreement shall be deleted in its entirety
and replaced with the following:
5.12 Agreement as to Efforts of Consummate. Subject to the terms
and conditions of this Agreement, Brunswick hereby agrees to use all
reasonable efforts to take, or cause to be taken, all
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actions, and to do, or cause to be done, all things necessary, proper, or
advisable under applicable laws and regulations to consummate and make
effective, as soon as practicable after the date of this Agreement, the
transactions contemplated by this Agreement, the Plan of Thrift Conversion,
the Amended Brunswick Articles and the Plan of Merger, including, without
limitation, using reasonable effort to lift or rescind any
injunction or restraining order to other order adversely affecting the
ability of the Parties to consummate the transactions contemplated herein.
Brunswick shall use, and shall cause each of the Brunswick Subsidiaries to
use, its bodies necessary or desirable for the consummation of the trans-
actions contemplated herein. Brunswick shall use, and shall cause each of
the Brunswich Subsidiaries to use, its best efforts to obtain consents of
all third parties and governmental bodies necessary or desirable for the
consummation of the transactions contemplated by this agreement.
18. Section 5.14 of the Agreement shall be revised by substituting
the phrase "Article 13 of the Georgia Business Corporation Code" for the
phrase "12 C.F.R. ss 552.14" where such phrase appears in the fourth line of
Section 5.14.
19. Subsection (c) of the Section 6.5 of the Agreement shall be
revised by adding the words "the FDIC," after the words "required from the
Federal Reserve Board," where such words appear on the sixth line of such
subsection (c).
20. Article Seven of the Agreement is revised by including the
phrase "Subject to the consummation of the transactions contemplated by the
CSC Reorganization," immediately preceding the first sentence of Article Seven.
21. Section 7.6 of the Agreement shall be deleted in its entirety
and replaced with the following:
7.6 Organization of Brunswick Interim. C&S (or CSC in the event the
CSC Reorganization is consummated) shall effect all action necessary to
organize Brunswick Interim as a Georgia business corporation. The
authorized stock of Brunswick Interim shall consist of 1,000 shares of
Brunswick Interim Common Stock, all of which shares shall be held by C&S
(or CSC in the event the CSC Reorganization is consummated). Except as
contemplated by this Agreement or the Plan or Merger, Brunswick Interim
shall engage in no business activities or acquire any assets until
consummation of the Merger.
22. Section 7.7 of the Agreement shall be deleted in its entirety
and replaced with the following:
7.7 Applications. C&S shall diligently prepare and file, or shall
cause to be prepared and filed, and pursue applications with the Federal
Reserve Board, the FDIC, the OTS and the Georgia Commissioner seeking the
requisite approvals necessary to consummate the transactions contemplated
by this Agreement, the Plan of Thrift
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Conversion, the Amended Brunswick Articles and the Plan of Merger and shall
take such other steps and actions in furtherance thereof as it deems
appropriate.
23. Section 7.8 of the Agreement shall be deleted in its entirety
and replaced with the following:
7.8 Agreement as to Efforts to Consummate. Subject to the terms and
conditions of this Agreement, C&S agrees to use all reasonable efforts to
take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations
to consummate and make effective, as soon as practicable after the date of
this Agreement, the transactions contemplated by this Agreement, the Plan
of Thrift Conversion, the Amended Brunswick Articles and the Plan of
Merger, including, without limitation, using reasonable effort to life or
rescind any injunction or restraining order or other order adversely
affecting the ability of the Parties to consummate the transactions
contemplated herein. C&S shall use, and shall cause each of the C&S
Subsidiaries to use its best efforts to obtain consents of all third
parties and governmental bodies necessary or desirable for the consummation
of the transactions contemplated by this Agreement, the Plan of Thrift
Conversion, the Amended Brunswick Articles and the Plan of Merger.
24. Section 8.1 of the Agreement shall be deleted in its entirety and
replaced with the following:
8.1 Registration Statement: Stockholder Approval. At such time as
determined in the sole discretion of C&S, C&S shall prepare and file the
Registration Statement with the SEC and Brunswick shall file the Proxy
Statement with the OTS and C&S and Brunswich shall use their best efforts
to cause the Registration Statement to become effective under the 1933 Act
and shall take any action required to be be taken under the applicable
state Blue Sky or securities laws in connection with the issuance of the
shares of C&S Common Stock upon consummation of the Merger. Each Party
shall furnish all information concerning it and the holders of its capital
stock as the other party may reasonably request in connection with such
action. Brunswick shall call a Stockholders' meeting to be held as soon as
practicable after the date of this Agreement for the purposes of voting
upon the Agreement, the Plan of Thrift Conversion, the Amended Brainsick
Articles and the Plan of Merger, and such other related matters as it
deems appropriate. In connection with the Stockholder's Meeting, (i)
Brunswick shall mail the Proxy Statement included as part of the
Registration Statement and as filed with the OTS to its stockholders, (ii)
the Board of Directors of Brunswick shall recommend (subject to compliance
with its legal obligations as advised by counsel and subject to receipt of
the investment banking letter referred to in Section 9.13 of this Agree-
ment) to its stockholders the approval of
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this Agreement, the Plan of Thrift Conversion, the Amended Brunswick
Articles and the Plan of Merger, and (iii) Brunswick shall use its best
efforts to obtain such stockholders' approval. As soon as practicable after
the Stockholders' Meeting, Brunswick shall deliver to C&S a certificate of
the Secretary of Brunswick containing the names of the stockholders of
Brunswick that have either: (x) not voted for the Merger contemplated by
this Agreement; or (y) given written notice at or prior to the
Stockholders' Meeting that they dissent from the Merger ("Certificate of
Objections"). The Certificate of Objections shall include the number of
shares of Brunswick Common Stock held by each such stockholder and the
mailing address of each such stockholder.
25. Paragraph (iii) of Section 9.1 of the Agreement shall be deleted in
its entirety and replaced with the following:
(iii) changes resulting from effecting the transactions specifically
contemplated by (x) this Agreement, the Plan of Thrift Conversion, the
Amended Brunswick Articles or the Plan of Merger, including the fees and
expenses incurred in connection therewith, and (y) the CSC Reorganization
in the case of C&S, including the fees and expenses incurred in connection
therewith.
26. Sections 9.3, 9.4, 9.5, and 9.6 of the Agreement shall be deleted
in their entirety and replaced with the following:
9.3 CERTIFICATES. Each of the Parties shall have delivered to the other
a certificate, dated as of the Effective Date and signed on its behalf by
its Chairman of the Board or its President and its Treasurer, to the effect
that (i) the conditions of its obligations set forth in Sections 9.1 and
9.2 of this Agreement have been satisfied and (ii) there has been no
material adverse change in the consolidated financial condition or
consolidated results of operations of such Party from that reflected on the
(a) September 30, 1987 and December 31, 1987, financial statements referred
to in Section 4.5 as to Brunswick and (b) December 31, 1987, financial
statements referred to in Section 6.6 as to C&S, other than changes in the
consolidated financial condition or consolidated results of operations of
such Party resulting from effecting the transactions specifically
contemplated by (x) this Agreement, the Plan of Thrift Conversion, the
Amended Brunswick Articles or the Plan of Merger and (y) the CSC
Reorganization in the case of C&S, all in such reasonable detail as the
other Party shall request.
9.4 CORPORATE AUTHORIZATION. All action necessary to authorize the
execution, delivery and performance of this Agreement, the Plan of Thrift
Conversion, the Amended Brunswick Articles and the Plan of Merger and the
consummation of the transactions contemplated hereby and thereby shall have
been duly and validly taken by the Parties. Each Party shall have furnished
to the other certified copies of
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resolutions duly adopted by such Party's Board of Directors evidencing the
same.
9.5 STOCKHOLDER APPROVALS. The stockholders of Brunswick shall have
approved this Agreement, the Plan of Thrift Conversion, the Amended
Brunswick Articles and the Plan of Merger, and the consummation of the
transactions contemplated hereby, including the Thrift Conversion, the
Bank Conversion and the Merger, as and to the extent required by law and
by the provisions of any governing instruments, and Brunswick shall have
furnished to C&S certified copies of resolutions duly adopted by
Brunswick's stockholders evidencing the same. In addition, the holders of
no more than seven percent (7%) of the issued and outstanding shares of
Brunswick Common Stock shall have filed written notice with Brunswick at or
prior to the Stockholders' Meeting that they dissent from the Merger or
have voted against adoption of this Agreement, the Plan of Thrift
Conversion, the Amended Brunswick Articles or the Plan of Merger.
9.6 CONSENTS AND APPROVALS. All approvals and authorizations of ,
filings and registrations with, and notifications to, all federal and state
authorities required for consummation of the Thrift Conversion, the Bank
Conversion and the Merger and for the preventing of any termination of any
right, privilege, license or agreement of either Party or any of its
respective Subsidiaries which, if not obtained or made, would have a
material adverse impact on the financial conditions or results of operation
of such Party and its Subsidiaries on a consolidated basis, shall have been
obtained or made and shall be in full force and effect and all waiting
periods required by law shall have expired. To the extent that any lease,
license, loan or financing agreement or other contract or agreement to
which Brunswick or any of its Subsidiaries, as the case may be, is a party
requires the consent of or waiver from the other party thereto
as a result of the transactions contemplated by this Agreement, the Plan of
Thrift Conversion, the Amended Brunswick Articles or the Plan of Merger,
such consent or waiver shall have been obtained, unless (i) waived by the
appropriate Party in accordance with Section 11.5 of this Agreement, or
(ii) the failure to obtain such consent or waiver would not have a material
adverse impact on the business, operations or financial condition of
Brunswick or any of its Subsidiaries following the Thrift Conversion, the
Bank Conversion, the Merger or the transactions contemplated hereby.
Any approval obtained from any Regulatory Authority which is necessary to
consummate the transactions contemplated hereby shall not be conditioned
or restricted in a manner in which, in the judgment of the Board of
Directors of either Party, materially adversely affects the economic
assumptions of the transactions contemplated hereby or the business
of either Party so as to render inadvisable the consummation of the
Thrift Conversion, the Bank Conversion or the Merger.
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27. Section 9.8 of the Agreement shall be deleted in its entirety and
replaced with the following:
9.8 MATERIAL ADVERSE CHANGE. There shall have been no determination by
the Board of Directors of either Party that the Thrift Conversion, the Bank
Conversion, the Merger or the other transactions contemplated by this
Agreement have become impractical because any state of war, national
emergency or banking moratorium shall have been declared in the United
States or a general suspension of trading on the New York Stock Exchange
occurred. There shall have been no determination by the Board of Directors
of either Party that the consummation of the Thrift Conversion, the Bank
Conversion, the Merger or the other transactions contemplated by this
Agreement is not in the best interests of such Party or its stockholders by
reason of material adverse change in the consolidated financial condition
or consolidated results of operations of the other Party from that
reflected in the (i) September 30, 1987 and December 31, 1987, financial
statements referred to in Section 4.5 as to Brunswick and (ii) the December
31, 1987, financial statements referred to in Section 6.6 as to C&S, other
than changes in the consolidated financial condition or consolidated
results of operations of such Party resulting from effecting the
transactions specifically contemplated by (x) this Agreement, the Plan of
Thrift Conversion, the Amended Brunswick Articles or the Plan of Merger and
(y) the CSC Reorganization in the case of C&S.
28. Sections 10.1 and 10.2 of the Agreement shall be deleted in their
entirety and replaced with the following:
10.1 TERMINATION. Notwithstanding any other provision of this
Agreement, the Plan of Thrift Conversion, the Amended Brunswick Articles or
the Plan of Merger, and notwithstanding the approval of this Agreement, the
Plan of Thrift Conversion, the Amended Brunswick Articles and the Plan of
Merger by the stockholders of Brunswick, this Agreement may be terminated
and the Thrift Conversion, the Bank Conversion and the Merger abandoned at
any time prior to the Effective date:
(a) By a vote of a majority of the Board of Directors of both
C&S and Brunswick; or
(b) By a vote of a majority of the Board of Directors of
either C&S or Brunswick in the event of a material breach by the other
Party of any representation, warranty, covenant or agreement contained
herein which cannot be or has not been cured within thirty (30) days
after the giving of written notice to the breaching Party of such
breach; or
(c) By a vote of a majority of the Board of Directors of
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either C&S or Brunswick in the event that the Thrift Conversion, the
Bank Conversion and the Merger shall not have been consummated by March
31, 1991; or
(d) By a vote of a majority of the Board of Directors of
either C&S or Brunswick in the event (i) any approval of any
governmental or other Regulatory Authority required for consummation of
the Thrift Conversion, the Bank Conversion, the Merger and the other
transactions contemplated hereby shall have been denied by final
non-appealable action of such authority or if any action taken by such
authority is not appealed within the time limit for appeal or (ii) if
the stockholders of Brunswick fail to vote their approval of the Thrift
Conversion, the Bank Conversion, the Merger and the transactions
contemplated hereby as required by the Home Owners' Loan Act of 1933,
as amended, and the Georgia Financial Institutions Code at the
Stockholders' Meeting where the transactions were presented to such
stockholders for approval; or
(e) By a vote of a majority of the Board of Directors of
either C&S or Brunswick in the event (i) of the acquisition, by any
person or group of persons, of beneficial ownership of forty percent
(40%) or more of the outstanding shared of common stock of the other
Party (the terms "group" and "beneficial ownership" having the meanings
assigned thereto in Section 13(d) of the 1934 Act and the regulations
promulgated thereunder), or (ii) the Board of Directors of the other
Party accepts or publicly recommends acceptance of an offer from a
third party to acquire fifty percent (50%) or more of its common stock
or consolidated assets, provided that consummation of the
transactions contemplated by the CSC Reorganization shall not be
deemed to provide Brunswick a right of termination under the
provisions of this Section 10.1 (e); or
(f) By a vote of majority of the Board of Brunswick in the
event the Base Period Trading Price is less than $17.00 (subject to
appropriate adjustment in the event of stock splits or stock dividends
with respect to shares of C&S Common Stock prior to the Effective
Date).
10.2 EFFECT OF TERMINATION. In the event of the termination and
abandonment of this Agreement, the Plan of Thrift Conversion, the Amended
Brunswick Articles and the Plan of Merger pursuant to Section 10.1 of this
Agreement, this Agreement, the Plan of Thrift Conversion, the Amended Brunswick
Articles and the Plan of Merger shall become void and have no effect, except
that the provisions of Sections 5.5, 7.3 and 11.1 of this Agreement shall
survive any such termination and abandonment.
29. Subsection (b) of Section 11.1 of the Agreement shall be deleted in
its entirety and replaced with the following:
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(b) Notwithstanding the provisions of Section 11.1 (a) of this
Agreement, if this Agreement, the Plan of Thrift Conversion, the
Amended Brunswick Articles and the Plan of Merger are terminated (i) by
Brunswick before the Closing is concluded for any of the reasons set
forth in Sections 10.1(b), 10.1(d)(i) or 10.1(f) of this Agreement,
(ii) by C&S before the Closing is concluded for any of the reasons set
forth in Section 10.1(d)(i) of this Agreement or (iii) by mutual
agreement of the Parties before the Closing is concluded pursuant to
Section 10.1(a) of this Agreement but only for the specific reasons
specified in Section 10.1(d)(i) of this Agreement, C&S shall reimburse
Brunswick for any and all of the expenses of Brunswick (including, but
not limited to, fees and expenses of its accountants, counsel and
investment bankers) reasonably incurred in attempting to effect the
transactions contemplated by this Agreement. Notwithstanding the
foregoing, if this Agreement, the Plan of Thrift Conversion, the
Amended Brunswick Articles and the Plan of Merger are terminated by C&S
or Brunswick pursuant to Section 10.1(b) of this Agreement because of
the willful breach by the other of any representation, warranty,
covenant, undertaking or restriction contained herein, if the
terminating Party shall not have been in breach (in any material
respect) of any representation, warranty, covenant, undertaking or
restriction contained in this Agreement, then the breaching Party shall
pay for any and all of the expenses of the terminating Party (including
but not limited to, fees and expenses of its accountants, counsel and
investment bankers) reasonably incurred in attempting to effect the
transactions contemplated by this Agreement. Final settlement with
respect to payment of such fees and expenses by the Parties shall be
made within thirty (30) days of the termination of this Agreement, the
Plan of Thrift Conversion, the Amended Brunswick Articles and the Plan
of Merger.
30. Section 11.3 of the Agreement shall be deleted in its entirety and
replaced with the following:
11.3 ENTIRE AGREEMENT. Except as otherwise expressly provided
herein or in the Amendment Number One, this Agreement and the Plan of
Merger contain the entire agreement between the Parties with respect
to the transactions contemplated hereunder and thereunder, and such
agreements supersede all prior arrangements or understandings with
respect thereto, written or oral. The terms and conditions of this
Agreement and the Plan of Merger shall inure to the benefit of and be
binding upon the Parties and their respective successors. Nothing in
this Agreement, the Plan of Thrift Conversion, and Amended Brunswick
Articles or the Plan of Merger expressed or implied, is intended to
confer upon any Party, other than the Parties or their respective
successors, any rights, remedies, obligations or liabilities under or
by reason of this Agreement, the Plan of Thrift Conversion, the
Amended Brunswick Articles or the Plan of Merger, except as expressly
provided herein or therein.
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31. Section 11.4 shall be deleted in its entirety and replaced with the
following:
11.4 AMENDMENTS. To the extent permitted by law, this Agreement and the
Plan of Merger may be amended by a subsequent writing signed by all of
the Parties upon the approval of the Board of Directors of each of the
Parties; provided, however, that, except as contemplated in Section 8.4
of this Agreement, the provisions of Section 2.3 of this Agreement
relating to the manner or basis in which shares of Brunswick Common
Stock will be exchanged for C&S Common Stock shall not be amended after
the Stockholders' Meeting without the requisite approval of the holders
of the outstanding shares of Brunswick Common Stock, and that no
amendment to this Agreement shall modify the requirements of regulatory
approval set forth in Sections 9.4 and 9.6 of this Agreement.
32. The Exhibit 1 which was originally attached to the Agreement shall
be removed and Exhibit 1 attached to this Amendment Number One shall be
substituted in its place as Exhibit 1.
33. The Agreement shall be amended to incorporate Exhibits 8 and 9
attached to this Amendment Number One as exhibits to the Agreement.
34. No other amendments to the Agreement, except as set forth in this
Amendment Number One, are intended by this Amendment Number One. The Agreement,
as amended hereby, shall continue in full force and effect. The agreements set
forth herein do not constitute the waiver of any right or claim that the Parties
might have under the Agreement.
35. This Amendment Number One may be executed in two counterparts, each
of which shall be deemed an original, but both of which when taken together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have caused this Amendment Number One
to be duly executed and delivered on its behalf and its corporate seal to
be hereunto affixed and attested by officers thereunto duly authorized as of
the date and year first above written.
THE CITIZENS AND SOUTHERN CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman of the Board
Attest: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Secretary
[CORPORATE SEAL]
[Signatures continued on next page]
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CITIZENS AND SOUTHERN GEORGIA
CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chairman of the Board
Attest: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Secretary
[CORPORATE SEAL]
THE CITIZENS AND SOUTHERN NATIONAL
BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
President
Attest: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Secretary
[ASSOCIATION SEAL]
FIRST FEDERAL SAVINGS BANK
OF BRUNSWICK, GEORGIA
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇ III
---------------------------------
▇▇▇ ▇. ▇▇▇▇▇ III
Chairman of the Board
Attest: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
Secretary
[SAVINGS BANK SEAL]
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Supplement to Amendment Number One to
Amended and Restated Agreement
and Plan of Reorganization
This Supplement ("Supplement") to the foregoing Amendment Number One to
Amended and Restated Agreement and Plan of Reorganization ("Agreement") is
executed by C&S/Sovran Corporation (formerly named Avantor Financial
Corporation) ("CSC") pursuant to Section 8.4(a) of the Agreement and in
consideration of the premises of the Agreement, the representations, warranties,
covenants, and agreements of First Federal Savings Bank of Brunswick, Georgia
and The Citizens and Southern Corporation set forth in the Agreement, the
benefits to be derived by CSC under the terms of the Agreement, and
other good and valuable consideration the receipt and sufficiency of which
is hereby acknowledged. By execution of this Supplement, CSC represents
that its Board of Directors has duly and validly authorized and approved the
obligations of CSC under the Agreement and the transactions contemplated
thereby and undertakes and agrees to perform all obligations and covenants to
be performed by CSC under the terms of the Agreement and the related Plan of
Merger and to abide by the Agreement and such Plan of Merger in accordance
with their respective terms.
C&S/SOVRAN CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman of the Executive Chairman of the Board
Committee
ATTEST: /s/ Page ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Page ▇. ▇▇▇▇▇▇▇▇ [CORPORATE SEAL]
Secretary
