EXHIBIT 2.1
PLAN OF REORGANIZATION AND AGREEMENT TO MERGE
FARMERS & MERCHANTS BANK
AND
FMB INTERIM CORP.
UNDER THE CHARTER OF
FARMERS & MERCHANTS BANK
AND WITH THE TITLE OF
"FARMERS & MERCHANTS BANK"
THIS AGREEMENT (this "Agreement") made as of this 26th day of April,
2000 by and between FARMERS & MERCHANTS BANK, a state bank organized under the
laws of the State of Georgia, being located in Statesboro, County of Xxxxxxx, in
the State of Georgia (the "Bank") and FMB Interim Corp., a Georgia business
corporation ("Interim"), pursuant to the authority given by and in accordance
with the applicable provisions of Part 14 of the Financial Institutions Code of
the State of Georgia, as amended (the "Georgia Code") and joined in by FMB
Equibanc, a Georgia business corporation (the "Company"); and
WHEREAS, a majority of the entire Board of Directors of the Bank and a
majority of the entire Board of Directors of Interim have, respectively,
approved and made this Plan of Reorganization and Agreement to Merge (this
"Plan") and authorized its execution, and a majority of the entire Board of
Directors of the Company has approved this Plan, undertaken that the Company
shall join in and be bound by it, and authorized the undertakings hereinafter
made by the Company; and
WHEREAS, from and after the time the Merger provided for herein (the
"Merger") becomes effective, and as and when required by the provisions of this
Plan, the Company will issue the shares of its Common Stock which the
shareholders of the Bank will be entitled to receive as herein provided;
NOW, THEREFORE, for and in consideration of the premises and of the
mutual agreements hereinafter contained, the parties hereto agree as follows:
I.
The Bank, under its Charter and Title, shall merge with Interim
pursuant to the provisions of, and with the effect provided in, the Georgia
Code, and the Bank shall be the surviving entity.
II.
Upon the Merger becoming effective, (i) the name of the Bank as the
surviving entity (the "Continuing Bank" whenever reference is made to it as of
the time of the Merger or thereafter) shall be continued under the name "Farmers
& Merchants Bank," (ii) the Articles of Incorporation of the Continuing Bank
shall be as set forth in Exhibit A, annexed hereto and made a part hereof, (iii)
the Bylaws of the Continuing Bank shall be set forth in Exhibit B, annexed
hereto and made a part hereof, and (iv) the principal office of the Bank,
located at 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, shall become the
main office of the Continuing Bank.
III.
Upon the Merger becoming effective, the separate existence of the Bank
and Interim shall cease and all rights, franchises and interests of the Bank and
Interim, respectively, in and to every type of property (real, personal and
mixed), and choses in action, shall be transferred to and vested in the
Continuing Bank by virtue of the Merger without any deed or other transfer, and
the Continuing Bank, without any order or other action on the part of any court
or otherwise, shall hold and enjoy all rights of property, franchises and
interests, including appointments, designations and nomination, and all other
rights and interests as trustee, executor, administrator, registrar of stocks
and bonds, guardian of estates, assignee, receiver and committee of estates of
lunatics or other incompetents, and in every other fiduciary capacity, in the
same manner and to the same extent as such rights, franchises and interests were
held or enjoyed by the Bank and Interim, respectively, at the time the Merger
becomes effective.
Upon the Merger becoming effective, the Continuing Bank shall be liable
for all liabilities of the Bank; and all deposits, debts, liabilities and
obligations and contracts of the Bank and Interim, respectively, matured or
unmatured, whether accrued, absolute, contingent or otherwise, and whether or
not reflected or reserved against on balance sheets, books of account or records
of the Bank or Interim, as the case may be, shall be those of the Continuing
Bank, and shall not be released or impaired by the Merger; and all rights of
creditors and other obligees and all liens on property of either the Bank or
Interim shall be preserved unimpaired.
The Bank's employee benefit plans will be continued as employee benefit
plans of the Continuing Bank.
IV.
Upon the Merger becoming effective:
A. The shareholders of the Bank of record at the time the Merger
becomes effective (other than those shareholders, if any, asserting dissenters'
rights under the laws of the State of Georgia), for the shares of the Common
Stock of the Bank then held by them, shall be allocated and entitled to receive
shares of the Common Stock of the Company at the rate of one share of such
Common Stock of the Company for each share of the Common Stock of the Bank.
B. Each share of the Common Stock of the Bank shall be exchanged for
one share of the Common Stock of the Company, and outstanding certificates
representing shares of the Common Stock of the Bank shall thereafter represent
shares of the Common Stock of the Company, and such certificates shall be
exchanged by the holders thereof, after the Merger becomes effective, for new
certificates for the appropriate number of shares bearing the name of the
Company. The Company may withhold, from the holder of shares represented by
certificates of the Bank, distribution of any or all dividends declared by the
Company on such shares until such time as such Bank certificates shall be
surrendered and exchanged for one or more certificates representing shares of
the Common Stock of the Company, at which time dividends so withheld by the
Company with respect to such shares shall be delivered, without interest
thereon, to the shareholder to whom such certificate(s) are issued.
C. Each outstanding warrant, option or right to purchase or otherwise
acquire shares of the Common Stock of the Bank shall be converted, forthwith
upon the Merger becoming effective, into and become a warrant, option or right
to purchase or otherwise acquire the same number of the shares of the Common
Stock of the Company on the same terms and conditions, and, in connection
therewith, the same number of shares of the Common Stock of the Company shall be
reserved for issuance by the Company as were reserved by the Bank immediately
prior to the Merger.
D. The amount, and the number of shares, of the Common Stock of Interim
outstanding immediately before the Merger becomes effective shall be converted
into the same number of shares of $1.00 par value per share Common Stock of the
Continuing Bank.
E. Shareholders of the Bank asserting dissenters' rights under the laws
of the State of Georgia shall have their rights determined pursuant to Chapter 2
of Title 14 of the Official Code of Georgia, known as the "Georgia Business
Corporation Code" and shall be entitled to cash payment pursuant to the terms
and provisions of said chapter.
V.
Upon the Merger becoming effective, the Company shall redeem the ten
shares of its Common Stock issued upon its organization for the $50.00 paid to
the Company for such shares, so that upon consummation of the Merger the then
outstanding shares of the Company's Common Stock shall consist solely of the
shares to be issued by the Company upon the conversion and exchange of shares of
the Common Stock of the Bank.
VI.
The Board of Directors of the Continuing Bank upon the Merger becoming
effective shall consist of all the persons who are Directors of the Bank
immediately before the Merger becomes effective.
VII.
This Plan shall be submitted to the shareholders of the Bank and
Interim for ratification and confirmation at meetings to be called and held in
accordance with the applicable provisions of law and the respective Articles of
Incorporation and Bylaws of the Bank and Interim. The Bank and Interim shall
proceed expeditiously and cooperate fully in the procurement of any other
consents and approvals and of the taking of any action, and the satisfaction of
all other requirements prescribed by law or otherwise, necessary for
consummation of the Merger on the terms herein provided, including without being
limited to, the preparation and submission of an application to the Federal
Department Insurance Corporation for approval under the provisions of Section
18(c) of the Federal Deposit Insurance Act, as amended (12 U.S.C. ss. 1828(c)),
and the preparation and submission of an application to the Georgia Department
of Banking and Finance for approval under the provisions of the Georgia Code.
VIII.
Effectuation of the Merger herein provided for is conditioned upon:
A. Ratification and confirmation of this Plan by the affirmative vote
of shareholders of the Bank and Interim owning at least two-thirds (2/3) of the
outstanding shares of the Common Stock of such bank and such corporation, as
required by law;
B. Procurement of all other consents, approvals and rulings, and
satisfaction of all other requirements, prescribed by law which are necessary
for consummation of the Merger; and
C. The Company must receive in exchange for shares of the Company's
common stock at least 80% of the outstanding shares of the Bank common stock.
D. Receipt of an opinion from Xxxxxxxx Xxxxxxx LLP, counsel to the
Bank, satisfactory in form and substance to the Board of Directors of the
Bank, to the effect that, under applicable provisions of the Internal Revenue
Code of 1986, as amended, no gain or loss will be recognized for federal income
tax purposes by the Bank, the Company or the shareholders of the Bank who
receive stock of the Company in connection with the proposed reorganization, and
as to such other matters as the Board of Directors shall deem desirable and in
the best interest of the shareholders of the Bank.
IX.
In the event that:
A. The number of outstanding shares of Common Stock of the Bank voting
against the Merger, or in respect of which written notice is given purporting to
dissent from the Merger, makes consummation of the Merger inadvisable in the
opinion of either the Board of Directors of the Bank or the Board of Directors
of Interim; or
B. Any action, suit, proceeding or claim has been instituted, made or
threatened relating to the Merger which shall make consummation of the Merger
inadvisable in the opinion of either the Board of Directors of the Bank or the
Board of Directors of Interim; or
C. Any action, consent or approval, governmental or otherwise, which
is, or, in the opinion of counsel for the Bank, may be, necessary to permit or
enable the Continuing Bank, upon and after the Merger, to conduct all or any
part of the business activities being conducted by the Bank as of the time of
the Merger, in the manner in which such activities and business are then
conducted, shall not have been obtained; or
D. For any other reason consummation of the Merger is inadvisable in
the opinion of either the Board of Directors of the Bank or the Board of
Directors of Interim, then this Plan may be terminated at any time before the
Merger becomes effective by written notice by either the Bank or Interim to the
other party, authorized or approved by resolution adopted by the Board of
Directors of the party giving such notice. Upon termination by written notice as
provided in this Section IX, this Plan shall be void and of no further effect,
and there shall be no liability by reason of this Plan or the termination
thereof on the part of either the Bank, Interim, the Company or the directors,
officers, employees, agents or shareholders of any of them.
X.
Subject to the terms and upon satisfaction of all requirements of the
law and conditions specified in this Plan, including, among other conditions,
receipt of the approval of the Federal Deposit Insurance Corporation and the
Georgia Department of Banking and Finance referred to in Section VII of this
Agreement, the Merger shall become effective at the time specified in the
certificate to be issued by these agencies under the seal of their offices
approving the Merger.
IN WITNESS WHEREOF, the Bank and Interim have caused this Plan of
Reorganization and Agreement to Merge to be executed by their duly authorized
officers and their corporate seals to be hereunto affixed as of the date first
above written, and directors, constituting a majority of the Board of Directors
of each such entity, have hereunto subscribed their names.
FARMERS & MERCHANTS BANK
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxxxxx
President and Chief Executive
Officer
Attest: /s/ Xxxxxx X. Xxxxx
--------------------------
Xxxxxx X. Xxxxx
Secretary
[BANK SEAL]
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------- -----------------------
Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxxxx
/s/ F. Xxxxxxx Xxxxxxx /s/ Xxxxx X. Xxxxxx, III
-------------------------------------- ------------------------
F. Xxxxxxx Xxxxxxx Xxxxx X. Xxxxxx, III
/s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxxxxx X. Xxxxx
-------------------------------------- --------------------
Xxxxxx X. Xxxxxxxxx Xxxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxxxxxx /S/ Xxxxx X. Xxxxx
------------------------------------ ------------------
Xxxxxxx X. Xxxxxxxxxx Xxxxx X. Xxxxx
/S/ Origen X. Xxxxx, Xx.
------------------------
Origen X. Xxxxx, Xx.
FMB INTERIM CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxxxxx
President and Chief Executive
Officer
Attest: /s/ Xxxxxx X. Xxxxx
--------------------------
Xxxxxx X. Xxxxx
Secretary
[CORPORATE SEAL]
/s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxx
FMB Equibanc hereby joins in the foregoing Plan of Reorganization and
Agreement to Merge, undertakes that it will be bound thereby and that it will
duly perform all the acts and things therein referred to or provided to be done
by it.
IN WITNESS WHEREOF, the Company has caused this undertaking to be made
in counterparts by its duly authorized officers and its corporate seal to be
hereunto affixed as of the date first above written.
FMB EQUIBANC, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxxxx
President and Chief Executive
Officer
Attest: /s/ Xxxxxx X. Xxxxx
-------------------------
Xxxxxx X. Xxxxx
Secretary
[CORPORATE SEAL]
STATE OF GEORGIA )
:
COUNTY OF THE BANK )
On this 26th day of April, 2000, before me, a Notary Public for the
State and County aforesaid, personally came Xxxxxxx X. Xxxxxxxxxx, as President
and Chief Executive Officer, and Xxxxxx Xxxxx, as Secretary, of FARMERS &
MERCHANTS BANK and each in his or her said capacity acknowledged the foregoing
instrument to be the act and deed of said bank and the seal affixed thereto to
be its seal; and came also at least a majority of the Board of Directors of said
bank and each of them acknowledged said instrument to be the act and deed of
said bank and of himself as a director thereof.
WITNESS my official seal and signature this date and year aforesaid.
____________________________
Notary Public
(Seal of Notary)
My commission expires:
