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EXHIBIT 2.1
REINCORPORATION AGREEMENT
BETWEEN
F.S. ALABAMA CORP.
AND
FIRST SOUTHERN BANCSHARES, INC.
This Reincorporation Agreement (this "Agreement") is entered into this
10th day of September 2004, by and between F. S. Alabama Corp., an Alabama
corporation (the "Surviving Corporation"), and First Southern Bancshares, Inc.,
a Delaware corporation ("First Southern"). The Surviving Corporation and First
Southern Bancshares, Inc. are sometimes referred to jointly as the "Constituent
Corporations."
RECITALS
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A. Each of the Constituent Corporations is a corporation organized and
existing under the laws of its respective state of incorporation as indicated in
the first paragraph of this Agreement.
B. The directors of each of the Constituent Corporations have deemed it
advisable for the mutual benefit of the Constituent Corporations and their
respective shareholders that First Southern be merged into the Surviving
Corporation pursuant to the provisions of the Alabama Business Corporation Act
and the Delaware General Corporation Law (the "Merger").
AGREEMENT
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NOW, THEREFORE, in accordance with the laws of the states of Alabama and
Delaware, the Constituent Corporations agree that, subject to the following
terms and conditions, (i) First Southern shall be merged into the Surviving
Corporation, (ii) the Surviving Corporation shall continue to be governed by the
laws of the State of Alabama, and (iii) the terms of the Merger, and the mode of
carrying them into effect, shall be as follows:
1. ARTICLES OF SURVIVING CORPORATION; NAME OF SURVIVING CORPORATION
The Articles of Incorporation of the Surviving Corporation as in effect
prior to the Effective Time of the Merger, the form of which are attached hereto
as Exhibit A, shall constitute the "Articles of Incorporation" of the Surviving
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Corporation, except that from and after the Effective Time, Article I of the
Articles of Incorporation of the Surviving Corporation shall be amended to read
as follows:
"The name of the Corporation is First Southern Bancshares, Inc."
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2. APPOINTMENT OF AGENT FOR SERVICE OF PROCESS
Pursuant to Section 252(d) of the Delaware General Corporation Law, the
Surviving Corporation irrevocably appoints the Delaware Secretary of State to
accept service of process in any proceeding to enforce against the Surviving
Corporation any obligation of any Constituent Corporation as well as for
enforcement of any obligation of the Surviving Corporation arising from the
Merger. The Delaware Secretary of State shall mail a copy of such process to
First Southern Bancshares, Inc., 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx
00000.
3. CONVERSION OF SHARES, OPTIONS AND WARRANTS
3.1. FIRST SOUTHERN SHARES. At the Effective Time of the Merger,
each outstanding share of the common stock of First Southern shall automatically
convert to one share of common stock of the Surviving Corporation.
3.2. EXCHANGE OF CERTIFICATES.
(a) After the Effective Time of the Merger, each holder of an
outstanding certificate representing shares of common stock of
First Southern upon receipt of a transmittal letter from the
Surviving Corporation, surrender the same for cancellation to
Registrar and Transfer Company (the "Exchange Agent"), and
each such holder shall be entitled to receive in exchange
therefor a certificate or certificates representing the number
of shares of the Surviving Corporation, into which surrender
shares were converted, as herein provided. Until so
surrendered, each outstanding certificate representing shares
of First Southern shall be deemed for all purposes to
represent the number of shares of the Surviving Corporation's
common stock into which such shares of common stock were
converted in the Merger.
(b) The registered owner on the books and records of the Surviving
Corporation of any outstanding certificate shall, until such
certificate shall have been surrender for transfer or
conversion or otherwise accounted for to the Surviving
Corporation, have and be entitled to exercise any voting or
other rights with respect to an receive dividends and other
distributions, if any, upon the shares of common stock of the
Surviving Corporation represented by such outstanding
certificate.
(c) Each certificate representing common stock of the Surviving
Corporation issued in the Merger shall bear the following
restrictive legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED WITH NOR APPROVED OR DISAPPROVED
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BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION NOR BY
ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE AND SUCH
REGISTRATION IS NOT CONTEMPLATED. THE SHARES REPRESENTED BY
THIS CERTIFICATE MAY NOT BE TRANSFERRED IN WHOLE OR ON PART IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT OR AN
OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT
EXEMPTION FROM REGISTRATION IS AVAILABLE.
3.3. SURVIVING CORPORATION SHARES. At the Effective Time of the
Merger, each outstanding share of the common stock of the Surviving Corporation
shall be automatically canceled and returned to the status of authorized but
unissued shares.
3.4. FIRST SOUTHERN OPTIONS AND WARRANTS. At the Effective
Time of the Merger, each outstanding option and warrant to acquire shares of the
common stock of First Southern shall automatically convert into an option or
warrant to acquire shares of common stock of the Surviving Corporation on a
one-for-one basis and without any change in their respective terms and
conditions.
4. BYLAWS
The Bylaws of the Surviving Corporation, the form of which are attached
hereto as Exhibit B, shall be the governing Bylaws of the Surviving Corporation
from and after the Effective Time of the Merger.
5. EFFECT OF THE MERGER
The effect of the Merger shall be as provided by the applicable provisions
of the laws of Alabama and Delaware. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time of the Merger: the
separate existence of First Southern shall cease; the Surviving Corporation
shall possess all assets and property of every description, and every interest
therein, wherever located, and the rights, privileges, immunities, powers,
franchises and authority, of a public as well as a private nature, of each of
the Constituent Corporations; all obligations belonging to or due either of the
Constituent Corporations shall be vested in, and become the obligations of, the
Surviving Corporation without further act or deed; title to any real estate or
any interest therein shall not revert or in any way be impaired by reason of the
Merger; all rights of creditors and all liens upon any property of either of the
Constituent Corporations shall be preserved unimpaired; and the Surviving
Corporation shall be liable for all the obligations of the Constituent
Corporations and any claim existing, or action or proceeding pending, by or
against either of the Constituent Corporations may be prosecuted to judgment
with right of appeal, as if the Merger had not taken place. If at any time after
the Effective Time of the Merger the Surviving Corporation shall consider it to
be advisable that any further
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conveyances, agreements, documents, instruments and assurances of law or any
other things are necessary or desirable to vest, perfect, confirm or record in
the Surviving Corporation the title to any property, rights, privileges, powers
and franchises of the Constituent Corporations or otherwise to carry out the
provisions of this Agreement, the proper directors and officers of the
Constituent Corporation last in office shall execute and deliver, upon the
Surviving Corporation's request, any and all proper conveyances, agreements,
documents, instruments and assurances of law, and do all things necessary or
proper to vest, perfect or confirm title to such property, rights, privileges,
powers and title to such property, rights, privileges, powers and franchises in
the Surviving Corporation, and otherwise to carry out the provisions of this
Agreement.
6. EFFECTIVE TIME OF THE MERGER
As used in this Agreement, the "Effective Time of the Merger" shall mean
the time at which executed counterparts of this Agreement or conformed copies
thereof, together with duly executed Certificates or Articles of Merger have
been duly filed by the Constituent Corporations in the office of the Alabama
Secretary of State pursuant to Section 16-28-11.05 of the Alabama Business
Corporation Act and the Office of the Delaware Secretary of State pursuant to
Section 252 of the Delaware General Corporation Law or at such time thereafter
as is provided in such Certificates or Articles of Merger.
7. TERMINATION
This Agreement may be terminated and the Merger abandoned by mutual
consent of the directors of the Constituent Corporations at any time before the
Effective Time of the Merger.
8. NO THIRD-PARTY BENEFICIARIES
Except as otherwise specifically provided herein, nothing expressed or
implied in this Agreement is intended, or shall be construed, to confer upon or
give any person, firm or corporation, other than the Constituent Corporations
and their respective shareholders, any rights or remedies under or by reason of
this Agreement.
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[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Reincorporation
Agreement to be executed as of the date first above written.
F.S. ALABAMA CORP.
(In organization)
By: /s/B. Xxxx Xxxxxxx
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B. Xxxx Xxxxxxx
President and Chief Executive Officer
ATTEST: /s/Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
Corporate Secretary
FIRST SOUTHERN BANCSHARES, INC.
By: /s/B. Xxxx Xxxxxxx
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B. Xxxx Xxxxxxx
President and Chief Executive Officer
ATTEST: /s/Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
Corporate Secretary
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