Agreement Plan Of Merger By And Between Abc And Ce

EX 10.11


AGREEMENT AND PLAN OF MERGER


BY AND BETWEEN


ABC BANCORP


AND


CENTRAL BANKSHARES, INC.


AS OF DECEMBER 29, 1995


TABLE OF CONTENTS


Page


PREAMBLE ........................................................................................... 1


ARTICLE 1 TERMS OF MERGER................................................................. 1


1.1 Merger.......................................................................... 1
1.2 Time and Place of Closing....................................................... 1
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.............................................................. 3
3.3 Anti-Dilution Provisions........................................................ 4
3.4 Shares Held by TARGET or PURCHASER.............................................. 4
3.5 TARGET Bank..................................................................... 4
3.6 Rights of Former TARGET Shareholders............................................ 5
3.7 Options......................................................................... 5


ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF TARGET........................................ 5


4.1 Organization, Standing and Power................................................ 5
4.2 Authority; No Breach............................................................ 6
4.3 Capital Stock................................................................... 6
4.4 TARGET Subsidiaries............................................................. 7
4.5 Financial Statements............................................................ 7
4.6 Absence of Undisclosed Liabilities.............................................. 8
4.7 Absence of Certain Changes or Events............................................ 8
4.8 Tax Matters..................................................................... 8
4.9 TARGET Allowance for Possible Loan Losses....................................... 9
4.10 Assets.......................................................................... 9
4.11 Environmental Matters........................................................... 10
4.12 Compliance with Laws............................................................ 11
4.13 Labor Relations................................................................. 12
4.14 Employee Benefit Plans.......................................................... 12
4.15 Material Contracts.............................................................. 14


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4.16 Legal Proceedings ............................................................. 14
4.17 Reports........................................................................ 14
4.18 Statements True and Correct.................................................... 14
4.19 Accounting, Tax and Regulatory Matters......................................... 15
4.20 Charter Provisions............................................................. 15


ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF PURCHASER.................................... 16


5.1 Organization, Standing and Power............................................... 16
5.2 Authority; No Breach........................................................... 16
5.3 Capital Stock.................................................................. 17
5.4 PURCHASER Subsidiaries......................................................... 17
5.5 Financial Statements........................................................... 18
5.6 Absence of Undisclosed Liabilities............................................. 18
5.7 Absence of Certain Changes or Events........................................... 18
5.8 Tax Matters.................................................................... 19
5.9 PURCHASER Allowance for Possible Loan Losses................................... 19
5.10 Assets......................................................................... 20
5.11 Environmental Matters.......................................................... 20
5.12 Compliance with Laws........................................................... 21
5.13 Labor Relations................................................................ 22
5.14 Employee Benefit Plans......................................................... 22
5.15 Legal Proceedings.............................................................. 24
5.16 Reports........................................................................ 24
5.17 Statements True and Correct.................................................... 24
5.18 Accounting, Tax and Regulatory Matters......................................... 25
5.19 Charter Provisions............................................................. 25


ARTICLE 6 CONDUCT OF BUSINESS PENDING CONSUMMATION....................................... 26


6.1 Affirmative Covenants of TARGET................................................ 26
6.2 Negative Covenants of TARGET................................................... 26
6.3 Covenants of PURCHASER......................................................... 28
6.4 Adverse Changes in Condition................................................... 28
6.5 Reports........................................................................ 28


ARTICLE 7 ADDITIONAL AGREEMENTS.......................................................... 28


7.1 Registration Statement; Proxy Statement; Shareholder Approval.................. 28
7.2 Listing........................................................................ 29
7.3 Applications................................................................... 29
7.4 Filings with State Offices..................................................... 29
7.5 Agreement as to Efforts to Consummate.......................................... 29
7.6 Investigation and Confidentiality.............................................. 29


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7.7 Press Releases ................................................................. 30
7.8 No Solicitation................................................................. 30
7.9 Tax Treatment................................................................... 32
7.10 Agreement of Affiliates......................................................... 32
7.11 Employee Benefits and Contracts................................................. 33
7.12 Large Deposits.................................................................. 33
7.13 Indemnification................................................................. 33


ARTICLE 8 CONDITIONS PRECEDENT TO OBLIGATIONS TO
CONSUMMATE...................................................................... 33


8.1 Conditions to Obligations of Each Party......................................... 33
8.2 Conditions to Obligations of PURCHASER.......................................... 35
8.3 Conditions to Obligations of TARGET............................................. 36


ARTICLE 9 TERMINATION..................................................................... 36


9.1 Termination..................................................................... 37
9.2 Effect of Termination........................................................... 38


ARTICLE 10 MISCELLANEOUS................................................................... 38


10.1 Definitions..................................................................... 38
10.2 Expenses........................................................................ 45
10.3 Brokers and Finders............................................................. 45
10.4 Entire Agreement................................................................ 45
10.5 Amendments...................................................................... 45
10.6 Waivers......................................................................... 46
10.7 Assignment...................................................................... 46
10.8 Notices......................................................................... 46
10.9 Governing Law................................................................... 47
10.10 Counterparts.................................................................... 47
10.11 Captions........................................................................ 47
10.12 Enforcement of Agreement........................................................ 47
10.13 Severability.................................................................... 48


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LIST OF EXHIBITS
----------------


EXHIBIT NUMBER DESCRIPTION - -------------- -----------


1. Form of agreement of affiliates of Central Bankshares,
Inc. ((S) 7.10).

2. Matters as to which Powell, Goldstein, Frazer & Murphy
will opine ((S) 8.2(d)).

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

4. Employment Agreement between PURCHASER and Robert L. Evans
((S) 8.2(f)).

5. Employment Agreement between PURCHASER and Roxie W.
Bagwell ((S) 8.2(f)).


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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 29, 1995, by and between CENTRAL BANKSHARES, INC. ("TARGET"), a corporation organized and existing under the laws of the State of Georgia, with its principal office located in Cordele, Georgia, 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 shares of common stock of PURCHASER (except as provided herein), and the shareholders of TARGET shall become shareholders of PURCHASER (except as provided herein). 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 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, Central Bank & Trust, a wholly-owned Georgia 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 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 Georgia Articles of Merger reflecting the Merger shall become effective with the Secretary of State of the State of Georgia (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. The directors and officers of TARGET Bank immediately prior to the Effective Time shall serve as the initial directors and officers of TARGET Bank from and after the Effective Time in accordance with the Bylaws of TARGET Bank.


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:


(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.


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(b) Each share of TARGET Common Stock 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 in TARGET'S treasury which shall be cancelled without consideration at the Effective Time (the "Outstanding TARGET Shares"), shall automatically be converted at the Effective Time into the right to receive whole shares of PURCHASER Common Stock, plus cash in lieu of fractional shares pursuant to subparagraph (c) below, if applicable, in an amount equal to (i) (A) 2.0 times the lesser of (1) 0.08 times the total assets of TARGET or (2) the Total Equity of TARGET plus, (B) 1.0 times the amount, if any, by which the Total Equity of
---- TARGET exceeds 0.08 times the total assets of TARGET, based on the average of the total assets of TARGET as of the close of business for each of the sixty (60) calendar days immediately preceding the Closing Date, (ii) divided 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 shall receive the number of shares, or such fractions of a share (subject to paragraph (b) below), of PURCHASER Common Stock which shall be equal to the (i) Merger Consideration divided by the Base Period Trading Price (the "Exchange Ratio"), (ii) multiplied by the aggregate number of Outstanding TARGET Shares such shareholder holds as of the Effective Time.


(c) 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.


(d) 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.


(e) Outstanding TARGET Shares held by TARGET shareholders who, prior to the Effective Time, have met the requirements of Article 13 of the GBCC 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 GBCC; 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 GBCC, such shares held by such shareholder shall, upon the happening of that event, be treated the same as all other holders of TARGET Common Stock who have not dissented as to the Merger.


3.2 EXCHANGE OF SHARES. 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. Promptly following the Effective Time, the Exchange Agent shall send to each holder of


3


Outstanding TARGET Shares immediately prior to the Effective Time a form of letter of transmittal (the "Letter of Transmittal") for use in exchanging certificates previously evidencing shares of TARGET Common Stock ("Old Certificates"). The Letter of Transmittal will contain instructions with respect to the surrender of Old Certificates and the distribution of cash and certificates representing PURCHASER Common Stock, which certificates shall be deposited with the Exchange Agent by PURCHASER as of the Effective time. If any certificates for shares of PURCHASER Common Stock are to be issued in a name other than that for which an Old Certificate surrendered or exchanged is issued, the Old Certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer and the person requesting such exchange shall affix any requisite stock transfer tax stamps to the Old Certificate surrendered or provide funds for their purchase or establish to the satisfaction of the Exchange Agent that such taxes are not payable. Unless and until Old Certificates (or evidence that such certificates have been lost, stolen or destroyed accompanied by such security or indemnity as shall be requested by TARGET) are presented to the Exchange Agent, the holder thereof shall not be entitled to the consideration to be paid in exchange therefor pursuant to the Merger, to any dividends payable on any PURCHASER Common Stock to which he or she is entitled, or to exercise any rights as a shareholder of PURCHASER Common Stock. Subject to applicable law and to the extent that the same has not yet been paid to a public official pursuant to applicable abandoned property laws, upon surrender of his or her Old Certificates, the holder thereof shall be paid the consideration to which he or she is entitled. All such property, if held by the Exchange Agent for payment or delivery to the holders of unsurrendered Old Certificates and unclaimed at the end of one (1) year from the Effective Time, shall at such time be paid or redelivered by the Exchange Agent to PURCHASER and after such time any holder of an Old Certificate who has not surrendered such certificate shall, subject to applicable laws and to the extent that the same has not yet been paid to a public official pursuant to applicable abandoned property laws, look as a general creditor only to PURCHASER for payment or delivery of such property. In no event will any holder of TARGET Common Stock exchanged in the Merger be entitled to receive any interest on any amounts held by the Exchange Agent or PURCHASER.


3.3 ANTI-DILUTION PROVISIONS. In the event TARGET or PURCHASER changes
------------------------ the number of shares of TARGET Common Stock or PURCHASER Common Stock, respectively, issued and outstanding prior to the Effective Time as a result of a stock split, stock dividend or similar recapitalization with respect to such stock and the record date therefor (in the case of a stock dividend) or the effective date therefor (in the case of a stock split or similar recapitalization) shall be prior to the Effective Time, the Exchange Ratio shall be proportionately adjusted.


3.4 SHARES HELD BY TARGET OR PURCHASER. Each of the shares of TARGET
---------------------------------- Common Stock held by any TARGET Company or by any PURCHASER Company, in each case other than in a fiduciary capacity or as a result of debts previously contracted, shall be canceled and retired at the Effective Time and no consideration shall be issued in exchange therefor.


3.5 TARGET BANK. After consummation of the Merger, TARGET Bank shall be
----------- a separate subsidiary of PURCHASER.


4


3.6 RIGHTS OF FORMER TARGET SHAREHOLDERS. At the Effective Time, the
------------------------------------ stock transfer books of TARGET shall be closed as to holders of TARGET Common Stock immediately prior to the Effective Time and no transfer of TARGET Common Stock by any such holder shall thereafter be made or recognized. Until surrendered for exchange in accordance with the provisions of Section 3.2 of this Agreement, each Old Certificate (other than shares to be canceled pursuant to Section 3.1(d) of this Agreement) shall from and after the Effective Time represent for all purposes only the right to receive the consideration provided in Section 3.1 of this Agreement in exchange therefor. To the extent permitted by Law, former shareholders of record of TARGET shall be entitled to vote after the Effective Time at any meeting of shareholders of PURCHASER the number of whole shares of PURCHASER Common Stock into which their respective shares of TARGET Common Stock are converted, regardless of whether such holders have exchanged ...