Agreement And Plan Of Merger By And Between Abc Bank

EXHIBIT 10.10


AGREEMENT AND PLAN OF MERGER


BY AND BETWEEN


ABC BANCORP


AND


SOUTHLAND BANCORPORATION


AS OF DECEMBER 18, 1995


TABLE OF CONTENTS


Page
---- PREAMBLE.................................................................... 1
ARTICLE 1 TERMS OF MERGER.............................................. 1

1.1 Merger........................................................... 1
1.2 Time and Place of Closing........................................ 2
1.3 Effective Time................................................... 2


ARTICLE 2 ARTICLES, BYLAWS, MANAGEMENT................................. 2

2.1 Articles of Incorporation........................................ 2
2.2 Bylaws........................................................... 2
2.3 Directors and Officers........................................... 2


ARTICLE 3 MANNER OF CONVERTING AND EXCHANGING SHARES................... 2

3.1 Conversion of Shares............................................. 2
3.2 Exchange of Shares............................................... 6
3.3 Anti-Dilution Provisions......................................... 6
3.4 Shares Held by TARGET or PURCHASER............................... 6
3.5 TARGET Bank...................................................... 6
3.6 Rights of Former TARGET Shareholders............................. 7
3.7 Options.......................................................... 7
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF TARGET..................... 7

4.1 Organization, Standing and Power................................. 7
4.2 Authority; No Breach............................................. 8
4.3 Capital Stock.................................................... 8
4.4 TARGET Subsidiaries.............................................. 9
4.5 Financial Statements............................................. 9
4.6 Absence of Undisclosed Liabilities.............................. 10
4.7 Absence of Certain Changes or Events............................ 10
4.8 Tax Matters..................................................... 10
4.9 TARGET Allowance for Possible Loan Losses....................... 11
4.10 Assets.......................................................... 11
4.11 Environmental Matters........................................... 12
4.12 Compliance with Laws............................................ 13
4.13 Labor Relations................................................. 13
4.14 Employee Benefit Plans.......................................... 14
4.15 Material Contracts.............................................. 15


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4.16 Legal Proceedings............................................... 16
4.17 Reports......................................................... 16
4.18 Statements True and Correct..................................... 16
4.19 Accounting, Tax and Regulatory Matters.......................... 17
4.20 Charter Provisions.............................................. 17


ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF PURCHASER................. 17

5.1 Organization, Standing and Power................................ 17
5.2 Authority; No Breach............................................ 17
5.3 Capital Stock................................................... 18
5.4 PURCHASER Subsidiaries.......................................... 19
5.5 Financial Statements............................................ 19
5.6 Absence of Undisclosed Liabilities.............................. 20
5.7 Absence of Certain Changes or Events............................ 20
5.8 Tax Matters..................................................... 20
5.9 PURCHASER Allowance for Possible Loan Losses.................... 21
5.10 Assets.......................................................... 21
5.11 Environmental Matters........................................... 22
5.12 Compliance with Laws............................................ 23
5.13 Labor Relations................................................. 23
5.14 Employee Benefit Plans.......................................... 23
5.15 Legal Proceedings............................................... 25
5.16 Reports......................................................... 25
5.17 Statements True and Correct..................................... 26
5.18 Accounting, Tax and Regulatory Matters.......................... 26
5.19 Charter Provisions.............................................. 26


ARTICLE 6 CONDUCT OF BUSINESS PENDING CONSUMMATION.................... 27

6.1 Affirmative Covenants of TARGET................................. 27
6.2 Negative Covenants of TARGET.................................... 27
6.3 Covenants of PURCHASER.......................................... 29
6.4 Adverse Changes in Condition.................................... 29
6.5 Reports......................................................... 29
ARTICLE 7 ADDITIONAL AGREEMENTS....................................... 29

7.1 Registration Statement; Proxy Statement; Shareholder Approval... 29
7.2 Listing......................................................... 30
7.3 Applications.................................................... 30
7.4 Filings with State Offices...................................... 30
7.5 Agreement as to Efforts to Consummate........................... 30
7.6 Investigation and Confidentiality............................... 30
7.7 Press Releases.................................................. 31


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7.8 No Solicitation................................................. 31
7.9 Tax Treatment................................................... 33
7.10 Agreement of Affiliates......................................... 33
7.11 Employee Benefits and Contracts................................. 33
7.12 Large Deposits.................................................. 34
7.13 Indemnification Against Certain Liabilities..................... 34
7.14 Registration Rights and Election Agreement...................... 34
7.15 Irrevocable Proxies............................................. 34
7.16 Reserve for Snead Annuity....................................... 34


ARTICLE 8 CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE........... 35


8.1 Conditions to Obligations of Each Party......................... 35
8.2 Conditions to Obligations of PURCHASER.......................... 36
8.3 Conditions to Obligations of TARGET............................. 37
ARTICLE 9 TERMINATION................................................. 38

9.1 Termination..................................................... 38
9.2 Effect of Termination........................................... 39
ARTICLE 10 MISCELLANEOUS............................................... 39

10.1 Definitions..................................................... 39
10.2 Expenses........................................................ 47
10.3 Brokers and Finders............................................. 47
10.4 Entire Agreement................................................ 47
10.5 Amendments...................................................... 47
10.6 Waivers......................................................... 48
10.7 Assignment...................................................... 48
10.8 Notices......................................................... 48
10.9 Governing Law................................................... 49
10.10 Counterparts.................................................... 49
10.11 Captions........................................................ 49
10.12 Enforcement of Agreement........................................ 49
10.13 Severability.................................................... 49
10.14 Survival........................................................ 50


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LIST OF EXHIBITS


Exhibit Number Description - -------------- -----------
1. Form of agreement of affiliates of Southland Bancorporation
((S) 7.10).

2. Matters as to which Balch & Bingham will opine ((S) 8.2(d)).


3. Registration Rights and Election Agreement ((S) 7.14).


4. Employment Agreement between PURCHASER and John E. Meyer,
Jr. ((S) 8.2(f)).

5. Matters as to which Rogers & Hardin will opine ((S) 8.3(d)).

6. Irrevocable Proxy ((S) 7.15).


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AGREEMENT AND PLAN OF MERGER
----------------------------


THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is made and entered into as of December 18, 1995, by and between SOUTHLAND BANCORPORATION ("TARGET"), a corporation organized and existing under the laws of the State of Alabama, with its principal office located in Dothan, Alabama, and ABC BANCORP ("PURCHASER"), a corporation organized and existing under the laws of the State of Georgia, with its principal office located in Moultrie, Georgia.


PREAMBLE
--------


Certain terms used in this Agreement are defined in Section 10.1 hereof.


The Boards of Directors of TARGET and PURCHASER are of the opinion that the transactions described herein are in the best interests of the parties and their respective shareholders. This Agreement provides for the combination of TARGET with PURCHASER pursuant to the merger of TARGET with and into PURCHASER, as a result of which the outstanding shares of the capital stock of TARGET shall be converted into the right to receive the consideration provided for herein, and the shareholders of TARGET (other than those shareholders, if any, who exchange their shares solely for cash) shall become shareholders of PURCHASER. The transactions described in this Agreement are subject to the approvals of the shareholders of TARGET, the Board of Governors of the Federal Reserve System, the Alabama Banking Department and the Georgia Department of Banking and Finance and the satisfaction of certain other conditions described in this Agreement. It is the intention of the parties to this Agreement that the Merger for federal income tax purposes shall qualify as a "reorganization" within the meaning of Section 368(a) of the Internal Revenue Code.


Following the Closing of the Merger, Southland Bank, a wholly-owned Alabama state bank subsidiary of TARGET, will be operated as a separate subsidiary of PURCHASER.


NOW, THEREFORE, in consideration of the above and the mutual warranties, representations, covenants and agreements set forth herein, the parties agree as follows:


ARTICLE 1
TERMS OF MERGER
---------------


1.1 MERGER. Subject to the terms and conditions of this Agreement, at
------ the Effective Time, TARGET shall be merged with and into PURCHASER in accordance with the provisions of Section 14-2-1101 of the GBCC and Section 10-2B-11.05 of the ABCA and with the effect provided in Section 14-2-1106 of the GBCC (the "Merger"). PURCHASER shall be the Surviving Corporation resulting from the Merger. The Merger shall be consummated pursuant to the terms of this Agreement, which has been approved and adopted by the respective Boards of Directors of TARGET and PURCHASER.


1.2 TIME AND PLACE OF CLOSING. The Closing shall take place at 10:00
------------------------- a.m. on the date that the Effective Time occurs or at such other time as the Parties, acting through their chief executive officers or chief financial officers, may mutually agree (the "Closing Date"). The place of Closing shall be at the offices of Rogers & Hardin, Atlanta, Georgia, or such other place as may be mutually agreed upon by the Parties.


1.3 EFFECTIVE TIME. The Merger and other transactions contemplated by
-------------- this Agreement shall become effective on the date and at the time the Articles of Merger reflecting the Merger shall become effective with the Secretary of State of the State of Georgia and the Secretary of State of the State of Alabama in accordance with the relevant provisions of the GBCC and the ABCA, respectively. (the "Effective Time"). Subject to the terms and conditions hereof, unless otherwise mutually agreed upon in writing by the chief executive officers of each Party, the Parties shall use their reasonable efforts to cause the Effective Time to occur on (a) the last business day of the month in which occurs the last to occur of (i) the effective date (including expiration of any applicable waiting period) of the last required Consent of any Regulatory Authority having authority over and approving or exempting the Merger and (ii) the date on which the shareholders of TARGET approve this Agreement to the extent such approval is required by applicable Law; or (b) such later date as may be mutually agreed upon in writing by the chief executive officers or chief financial officers of each Party.


ARTICLE 2
ARTICLES, BYLAWS, MANAGEMENT
----------------------------


2.1 ARTICLES OF INCORPORATION. The Articles of Incorporation of
------------------------- PURCHASER in effect immediately prior to the Effective Time shall be the Articles of Incorporation of the Surviving Corporation until otherwise amended or repealed.


2.2 BYLAWS. The Bylaws of PURCHASER in effect immediately prior to the
------ Effective Time shall be the Bylaws of the Surviving Corporation until otherwise amended or repealed.


2.3 DIRECTORS AND OFFICERS. The directors of PURCHASER in office
---------------------- immediately prior to the Effective Time shall serve as the directors of the Surviving Corporation from and after the Effective Time in accordance with the Bylaws of the Surviving Corporation. The officers of PURCHASER in office immediately prior to the Effective Time, together with such additional persons as may thereafter be elected, shall serve as the officers of PURCHASER from and after the Effective Time in accordance with the Bylaws of PURCHASER.


ARTICLE 3
MANNER OF CONVERTING AND EXCHANGING SHARES
------------------------------------------


3.1 CONVERSION OF SHARES. Subject to the provisions of this Article 3,
-------------------- at the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof, the shares of PURCHASER and TARGET shall be converted as follows:


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(a) Each share of PURCHASER Common Stock issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from and after the Effective Time.


(b) Subject to the remaining provisions of this Section 3.1, each share of TARGET Common Stock (including any shares currently subject to options which are exercised prior to the Effective Time, if any) outstanding immediately prior to the Effective Time, other than shares with respect to which statutory dissenters' rights have been perfected (the "Dissenting Shares") and shares held by TARGET or any of TARGET Subsidiaries or by PURCHASER or any of PURCHASER Subsidiaries, in each case other than in a fiduciary capacity or as a result of debts previously contracted (the "Outstanding TARGET Shares"), shall automatically be converted at the Effective Time into the right to receive cash and whole shares of PURCHASER Common Stock, plus cash in lieu of fractional shares pursuant to subparagraph (j) below, if applicable, in an amount equal to (i) 1.8 multiplied by the Book Value of TARGET as of the close of business on the day immediately preceding the Closing Date (the "Valuation Date"), divided (ii) by the aggregate number of Outstanding TARGET Shares (the "Merger Consideration"). In accordance with the provisions of this Section 3.1 each TARGET shareholder who does not dissent may elect to receive (i) cash in an amount equal to the Merger Consideration times the number of Outstanding TARGET Shares such shareholder holds as of the Effective Time (the "Cash Consideration"), (ii) the number of shares, or such fractions of a share (subject to paragraph (j) below), of PURCHASER Common Stock which shall be equal to the Merger Consideration divided by the Base Period Trading Price (the "Exchange Ratio"), multiplied by the number of outstanding TARGET Shares such shareholder holds as of the Effective Time (the "Stock Consideration"), or (iii) a combination of Cash Consideration and Stock Consideration.


(c) The number of shares of TARGET Common Stock (including fractional shares) to be converted into the right to receive Cash Consideration (or cash pursuant to Section 3.1(j) hereof) shall not be less than 35% of the number of the Outstanding TARGET Shares (the "Minimum Cash Election Number") and, together with any shares of TARGET Common Stock as to which dissenters' rights have been perfected as contemplated by Section 3.1(l) hereof, shall not be greater than 49% of the Outstanding TARGET Shares (the "Maximum Cash Election Number"). The number of shares of TARGET Common Stock to be converted into the right to receive Stock Consideration shall be not less than 51% of the number of Outstanding TARGET Shares (the "Minimum Stock Election Number") and not greater than 65% of the number of Outstanding TARGET Shares (the "Maximum Stock Election Number").


(d) Subject to the proration and election procedures set forth in this Section 3.1, each TARGET shareholder will be entitled to elect to receive in exchange for his or her Outstanding TARGET Shares the applicable amount of Merger Consideration in the form of (a) Cash Consideration for all such shares (a "Cash Election"), (b) Stock Consideration for all such shares (a "Stock Election"), or (c) Cash Consideration and Stock Consideration for such shares in the relative proportions specified by such TARGET shareholder (a "Combination Election"). All such elections shall be made on a form designed for that purpose (a "Form of Election"). TARGET shareholders who hold such shares as nominees, trustees or in other representative capacities (a "Representative") may submit multiple Forms of Election, provided that such Representative certifies that each such


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Form of Election covers all the shares of TARGET Common Stock held by each such Representative for a particular beneficial owner.


(e) PURCHASER and TARGET shall each use its best efforts to mail the Form of Election to all Persons who are holders of TARGET Common Stock on the record date fixed for the Shareholders' Meeting (the "Record Date"). A Form of Election must be received by the Exchange Agent no later than by the close of business five (5) days prior to the Effective Date (the "Election Deadline") in order to be effective. All elections shall be irrevocable.


(f) Prior to the Effective Time, PURCHASER shall select a bank or trust company reasonably acceptable to TARGET to act as exchange agent (the "Exchange Agent") to effectuate the delivery of the Merger Consideration to holders of TARGET Common Stock. Elections shall be made by holders of TARGET Common Stock by mailing, faxing or otherwise delivering to the Exchange Agent a Form of Election. To be effective, a Form of Election must be properly completed, signed and submitted to the Exchange Agent. PURCHASER shall have the discretion, which it may delegate in whole or in part to the Exchange Agent, to determine whether Forms of Election have been properly completed, signed and submitted and to disregard immaterial defects in Forms of Election. The decision of PURCHASER (or the Exchange Agent) in such matters shall be conclusive and binding. Neither PURCHASER nor the Exchange Agent will be under any obligation to notify any Person of any defect in a Form of Election.


(g) A holder of TARGET Common Stock who does not submit a Form of Election which is received by the Exchange Agent prior to the Election Deadline shall be deemed to have made a Combination Election to receive 51% of the applicable amount of the Merger Consideration in the form of Stock Consideration and 49% of the applicable amount of the Merger Consideration in the form of Cash Consideration for his or her TARGET Shares. If PURCHASER or the Exchange Agent shall determine that any purported Cash Election or Stock Election was not properly made, such purported Cash Election or Stock Election shall be deemed to be of no force and effect, and the TARGET shareholder making such purported Cash Election or Stock Election shall for purposes hereof be deemed to have made a Combination Election to receive 51% of the applicable amount of the Merger Consideration in the form of Stock Consideration and 49% of the applicable amount of the Merger Consideration in the form of Cash Consideration for his or her TARGET Shares.


(h) All shares of TARGET Common Stock which are subject to Cash Elections or the cash portion of Combination Elections are referred to herein as "Cash Election Shares". All shares of TARGET Common Stock which are subject to Stock Elections or the stock portion of Combination Elections are referred to herein as "Stock Election Shares". If, after the results of the Forms of Election are calculated, the number of shares of TARGET Common Stock to be converted into shares of PURCHASER Common Stock exceeds the Maximum Stock Election Number, then the Exchange Agent shall determine the number of Stock Election Shares which must be redesignated as Cash Election Shares and all TARGET Shareholders who have Stock Election Shares (other than any TARGET Shareholder who has made a Combination Election to receive no more than 65% and no less than 51% of the applicable Merger Consideration in the form of Stock Consideration for his or her TARGET Shares) shall, on a prorata basis, have such number of their Stock Election Shares redesignated as Cash Election Shares so that the Maximum Stock Election Number and the Minimum


4


Cash Election Number are achieved. If, after the result of the Forms of Election are calculated, the number of shares of TARGET Common Stock to be converted into cash exceeds the Maximum Cash Election Number, then the Exchange Agent shall determine the number of Cash Election Shares which must be redesignated as Stock Election Shares and all TARGET Shareholders who have Cash Election Shares (other than any TARGET Shareholder who has made a Combination Election to receive no more than 49% and no less than 35% of the applicable Merger Consideration in the form of Cash Consideration for his or her TARGET Shares) shall, on a prorata basis, have such number of their Cash Election Shares redesignated as Stock Election Shares so that the Maximum Cash Election Number and Minimum Stock Election Number are achieved. PURCHASER or the Exchange Agent shall make all computations contemplated by this Section 3.1 and all such computations shall be conclusive and binding on the holders of TARGET Common Stock.


(i) After the redesignation procedure set forth in paragraph (h) above is completed, all Cash Election Shares shall be converted into the right to receive the Cash Consideration, and all Stock Election Shares shall be converted into the right to receive the Stock Consideration. Such certificates previously evidencing shares of TARGET Common Stock ("Old Certificates") shall be exchanged for (a) certificates evidencing the Stock Consideration or (b) the Cash Consideration, multiplied in each case by the number of shares previously evidenced by the canceled certificate, upon the surrender of such certificates in accordance with the provisions of Section 3.2, without interest. Notwithstanding the foregoing, however, no fractional shares of PURCHASER Common Stock shall be issued, and, in lieu thereof, a cash payment shall be made pursuant to Paragraph (j) below.


(j) Notwithstanding any other provision of this Agreement, each holder of shares of TARGET Common Stock exchanged pursuant to the Merger who would otherwise have been entitled to receive a fraction of a share of PURCHASER Common Stock (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 a share of PURCHASER Common Stock multiplied by the Base Period Trading Price. No such holder will be entitled to dividends, voting rights, or any other rights as a shareholder in respect of any fractional shares.


(k) Each share of the TARGET Common Stock that is not an Outstanding TARGET Share as of the Effective Time shall be cancelled without consideration therefor.


(l) Outstanding TARGET Shares held by TARGET shareholders who, prior to the Effective Time, have met the requirements of Article 13 of the ABCA with respect to shareholders dissenting from the Merger ("Dissenting TARGET Shareholders") shall not be converted in the Merger, but all such shares shall be cancelled and the holders thereof shall thereafter have only such rights as are granted to dissenting shareholders under Article 13 of the ABCA; provided, however, that if any such shareholder fails to perfect his or her rights as a dissenting shareholder with respect to his or her Outstanding TARGET Shares in accordance with Article 13 of the ABCA, such shares held b ...