AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Plan of Reorganization") is
made and entered into as of the 11th day of February, 2005, by and between
Decatur First Bank Group, Inc. ("Decatur First"), a bank holding company
organized under the laws of the State of Georgia, and Decatur First Interim
Corporation ("Interim"), a Georgia corporation.
WITNESSETH
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WHEREAS, Decatur First and Interim have determined that in order to effect
a recapitalization of Decatur First resulting in the suspension of its duties to
file reports with the Securities and Exchange Commission, Decatur First should
cause Interim to be organized as a Georgia corporation for the sole purpose of
merging with and into Decatur First, with Decatur First being the surviving
corporation;
WHEREAS, the authorized capital stock of Decatur First consists of: (a)
10,000,000 shares of common stock ("Decatur First Common Stock"), $5.00 par
value, of which 945,616 shares are issued and 925,016 shares are outstanding,
and (b) 2,000,000 shares of preferred stock of which no shares are issued and
outstanding;
WHEREAS, the authorized capital stock of Interim consists of 1,000 shares
of common stock ("Interim Common Stock"), $0.01 par value, of which 100 shares
are issued and outstanding;
WHEREAS, the respective Boards of Directors of Decatur First and Interim
deem it advisable and in the best interests of Decatur First and Interim and
their respective shareholders that Interim be merged with and into Decatur
First;
WHEREAS, the respective Boards of Directors of Decatur First and Interim,
by resolutions duly adopted, have approved and adopted this Plan of
Reorganization and directed that it be submitted to the respective shareholders
of Decatur First and Interim for their approval; and
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements herein contained, and for the purpose of stating the method, terms
and conditions of the merger provided for herein, the mode of carrying the same
into effect, the manner and basis of converting and exchanging the shares of
Decatur First Common Stock and Interim Common Stock as hereinafter provided, and
such other provisions relating to the reorganization and merger as the parties
deem necessary or desirable, the parties hereto agree as follows:
SECTION 1
REORGANIZATION
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Pursuant to the applicable provisions of Georgia law, Interim shall be
merged with and into Decatur First (the "Reorganization"). Decatur First shall
be the survivor of the merger (the "Surviving Corporation").
SECTION 2
EFFECTIVE DATE OF THE REORGANIZATION
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The merger of Interim with and into Decatur First shall be effective as of
the date (the "Effective Date") specified in the certificate of merger relating
to the Reorganization that is filed with the Georgia Secretary of State.
SECTION 3
LOCATION, ARTICLES AND BYLAWS, AND MANAGEMENT
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On the Effective Date:
(a) The principal office of the Surviving Corporation shall be located
at 0000 Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000, or such other location where
Decatur First is located on the Effective Date of the Reorganization.
(b) The Articles of Incorporation and Bylaws of the Surviving
Corporation shall be the same Articles of Incorporation and Bylaws of Decatur
First as are in effect on the Effective Date of the Reorganization.
(c) The directors and officers of the Surviving Corporation shall be
the directors and officers of Decatur First on the Effective Date of the
Reorganization. All such directors and officers of the Surviving Corporation
shall serve until their respective successors are elected or appointed pursuant
to the Bylaws of the Surviving Corporation.
SECTION 4
EXISTENCE, RIGHTS, DUTIES, ASSETS, AND LIABILITIES
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(a) As of the Effective Date of the Reorganization, the existence of
Decatur First shall continue in the Surviving Corporation.
(b) As of the Effective Date of the Reorganization, the Surviving
Corporation shall have, without further act or deed, all of the properties,
rights, powers, trusts, duties and obligations of Decatur First and Interim.
(c) As of the Effective Date of the Reorganization, the Surviving
Corporation shall have the authority to engage only in such businesses and to
exercise only such powers as are provided for in the Articles of Incorporation
of the Surviving Corporation, and the Surviving Corporation shall be subject to
the same prohibitions and limitations to which it would be subject upon original
incorporation, except that the Surviving Corporation may engage in any business
and may exercise any right that Decatur First or Interim could lawfully have
exercised or engaged in immediately prior to the Effective Date of the
Reorganization.
(d) No liability of Decatur First or Interim or of any of their
shareholders, directors or officers shall be affected by the Reorganization, nor
shall any lien on any property of Decatur First or Interim be impaired by the
Reorganization. Any claim existing or any action pending by or against Decatur
First or Interim may be prosecuted to judgment as if the Reorganization had not
taken place, or the Surviving Corporation may be substituted in place of Decatur
First or Interim.
SECTION 5
EFFECT OF MERGER ON INTERIM SHAREHOLDERS
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Each share of Interim Common Stock outstanding immediately prior to the
Effective Date of the Reorganization shall be cancelled and shall no longer be
outstanding.
SECTION 6
MANNER AND BASIS OF CONVERTING SHARES OFDECATUR FIRSTCOMMON
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STOCK
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(a) Conversion of Shares. The shares of Decatur First Common Stock
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that are outstanding on the Effective Date of the Reorganization, excluding
those shares of Decatur First Common Stock held by shareholders who have
perfected dissenters' rights of appraisal under the applicable provisions of the
Georgia Business Corporation Code, O.C.G.A. 14-2-1301 et seq. (the
"Dissenters' Rights Provisions"), shall be converted or retained as follows:
(1) Each share of Decatur First Common Stock held by a shareholder who
is the record holder of 500 or fewer shares of Decatur First Common Stock
shall be converted into the right to receive cash, payable by the Surviving
Corporation, in the amount of $17.50 per share of Decatur First Common
Stock.
(2) Each share of Decatur First Common Stock held of record by a
shareholder who is the holder of more than 500 shares of Decatur First
Common Stock shall remain outstanding and held by such shareholder.
(3) All treasury stock held by the Company shall remain treasury stock
and shall be unaffected by this Plan of Reorganization.
(b) Decatur First Stock Options. The Decatur First Bank Group, Inc.
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1998 Stock Incentive Plan (the "Option Plan") and the options issued thereunder
that are outstanding on the
Effective Date of the Reorganization shall continue to be outstanding after the
Effective Date subject to the terms and conditions of the existing written
documents reflecting the Option Plan and such options.
(c) Failure to Surrender Decatur First Common Stock Certificates.
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Until a Decatur First shareholder receiving cash in the Reorganization
surrenders his or her Decatur First Common Stock certificate or certificates to
Decatur First (or suitable arrangements are made to account for any lost, stolen
or destroyed certificates according to Decatur First's usual procedures), the
shareholder shall not be issued the cash (or any interest thereon) that such
Decatur First Common Stock certificate entitles the shareholder to receive.
SECTION 7
ACQUISITION OF DISSENTERS' STOCK
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Decatur First shall pay to any shareholder of Decatur First who complies
fully with the Dissenters' Rights Provisions an amount of cash (as determined
and paid under the terms of such Provisions) for his or her shares of Decatur
First Common Stock. The shares of Decatur First Common Stock so acquired shall
be cancelled.
SECTION 8
FURTHER ACTIONS
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From time to time, as and when requested by the Surviving Corporation, or
by its successors or assigns, Decatur First shall execute and deliver or cause
to be executed and delivered all such deeds and other instruments, and shall
take or cause to be taken all such other actions, as the Surviving Corporation,
or its successors and assigns, may deem necessary or desirable in order to vest
in and confirm to the Surviving Corporation, and its successors and assigns,
title to and possession of all the property, rights, powers, trusts, duties and
obligations referred to in Section 4 hereof and otherwise to carry out the
intent and purposes of this Plan of Reorganization.
SECTION 9
CONDITIONS PRECEDENT TO CONSUMMATION OF THE REORGANIZATION
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This Plan of Reorganization is subject to, and consummation of the
Reorganization herein provided for is conditioned upon, the fulfillment prior to
the Effective Date of the Reorganization of each of the following conditions:
(a) Approval of the Plan of Reorganization by the shareholders of each
of Decatur First and Interim in accordance with the provisions of applicable law
and the provisions of the applicable constituent's articles of incorporation,
bylaws and other governing instruments;
(b) The number of shares held by persons who have perfected dissenters'
rights of appraisal pursuant to the Dissenters' Rights Provisions shall not be
deemed by the Board of Directors to make consummation of this Plan of
Reorganization inadvisable;
(c) Procurement of any action, consent, approval or ruling,
governmental or otherwise, which is, or in the opinion of counsel for Decatur
First and Interim may be, necessary to permit or enable the Surviving
Corporation, upon and after the Reorganization, to conduct all or any part of
the business and activities conducted by the Decatur First prior to the
Reorganization.
SECTION 10
TERMINATION
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In the event that:
(a) The number of shares of Interim Common Stock or Decatur First
Common Stock voted against the Reorganization shall make consummation of the
Reorganization inadvisable in the opinion of the Board of Directors of Decatur
First or Interim;
(b) Any action, consent, approval, opinion, or ruling required to be
provided by Section 9 of this Plan of Reorganization shall not have been
obtained; or
(c) For any other reason consummation of the Reorganization is deemed
inadvisable in the opinion of the Board of Directors of Decatur First or
Interim;
then this Plan of Reorganization may be terminated at any time before
consummation of the Reorganization by written notice, approved or authorized by
the Board of Directors of the party wishing to terminate, to the other party.
Upon termination by written notice as provided by this Section 10, this Plan of
Reorganization shall be void and of no further effect, and there shall be no
liability by reason of this Plan of Reorganization or the termination hereof on
the part of Decatur First, Interim, or their directors, officers, employees,
agents or shareholders.
SECTION 11
AMENDMENT; WAIVER
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(a) At any time before or after approval and adoption hereof by the
respective shareholders of Decatur First and Interim, this Plan of
Reorganization may be amended by written agreement by Decatur First and Interim;
provided, however, that after the approval and adoption of this Plan of
Reorganization by the shareholders of Decatur First and Interim, no amendment
reducing the consideration payable to Decatur First shareholders shall be valid
without having been approved by the Decatur First shareholders in the manner
required for approval of this Plan of Reorganization. In particular, in the
event that the consummation of the Plan of Reorganization would yield more than
300 shareholders of record, the Board may amend the Plan of Reorganization to
increase the [NUMBER]-share threshold described in Section 6(a) to the minimum
threshold necessary to ensure
that the Company will have fewer than 300 shareholders of record as a result of
the transactions contemplated by this Plan of Reorganization.
(b) A waiver by any party hereto of any breach of a term or condition
of this Plan of Reorganization shall not operate as a waiver of any other breach
of such term or condition or of other terms or conditions, nor shall failure to
enforce any term or condition operate as a waiver or release of any other right,
in law or in equity, or claim which any party may have against another party for
anything arising out of, connected with or based upon this Plan of
Reorganization. A waiver shall be effective only if evidenced by a writing
signed by the party who is entitled to the benefit of the term or condition of
this Plan of Reorganization which is to be waived. A waiver of a term or
condition on one occasion shall not be deemed to be a waiver of the same or of
any other term or condition on a future occasion.
SECTION 12
BINDING EFFECT; COUNTERPARTS; HEADINGS; GOVERNING LAW
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This Plan of Reorganization is binding upon the parties hereto and upon
their successors and assigns. This Plan of Reorganization may be executed
simultaneously in any number of counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same instrument. The
title of this Plan of Reorganization and the headings herein set out are for
convenience or reference only and shall not be deemed a part of this Plan of
Reorganization. This Plan of Reorganization shall be governed by and construed
in accordance with the laws of the State of Georgia.
IN WITNESS WHEREOF, the parties hereto have caused this Plan of
Reorganization to be executed by their duly authorized officers and their
corporate seals to be affixed hereto all as of the day and year first above
written.
DECATUR FIRST BANK GROUP, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: President and Chief Executive Officer
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ATTEST:
/s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
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Title: Assistant Corporate Secretary
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DECATUR FIRST INTERIM CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: President
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ATTEST:
/s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
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Title: Assistant Corporate Secretary
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