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Exhibit
99.1
AGREEMENT AND PLAN OF
MERGER
by and among
CENTERSTATE BANKS OF FLORIDA,
INC.
CENTERSTATE BANK MID
FLORIDA
ATLANTIC SOUTHERN FINANCIAL
GROUP, INC.
and
ATLANTIC SOUTHERN
BANK
Dated as of August 10,
2007
TABLE OF
CONTENTS
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| ARTICLE I TRANSACTION |
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1 |
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Section 1.01 |
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Merger |
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1 |
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Section 1.02 |
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Effective
Time |
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1 |
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| ARTICLE II TERMS OF MERGER |
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2 |
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Section 2.01 |
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Articles
of Incorporation |
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2 |
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Section 2.02 |
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Bylaws |
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2 |
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Section 2.03 |
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Merger
Consideration |
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2 |
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Section 2.04 |
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Closing
and Closing Date |
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2 |
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| ARTICLE III. CONDITIONS PRECEDENT TO OBLIGATIONS OF
ASFG AND ASB |
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2 |
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Section 3.01 |
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Compliance with Representations Warranties and
Agreements |
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2 |
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Section 3.02 |
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Proceedings and Documents |
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2 |
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Section 3.03 |
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Governmental and Regulatory Approvals |
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3 |
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Section 3.04 |
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No
Litigation |
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3 |
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Section 3.05 |
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Related
Transactions |
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3 |
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Section 3.06 |
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Retained
Assets; No Deposits or Other Liabilities |
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3 |
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Section 3.07 |
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Third
Party Consents |
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4 |
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Section 3.08 |
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Actions
to be Taken at the Closing by the CSB and the Target |
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4 |
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Section 3.09 |
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Further
Assurances |
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5 |
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| ARTICLE IV. CONDITIONS PRECEDENT TO OBLIGATIONS OF CSB
AND THE TARGET |
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5 |
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Section 4.01 |
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Compliance with Representations, Warranties and
Agreements |
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5 |
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Section 4.02 |
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Proceedings and Documents |
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5 |
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Section 4.03 |
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Governmental and Regulatory Approvals |
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5 |
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Section 4.04 |
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Definitive Agreement Deposit |
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5 |
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Section 4.05 |
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No
Litigation |
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6 |
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Section 4.06 |
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Related
Transactions |
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6 |
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Section 4.07 |
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Third
Party Consents |
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6 |
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Section 4.08 |
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Actions
to be Taken at the Closing by ASFG and ASB |
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6 |
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Section 4.09 |
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Further
Assurances |
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7 |
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| ARTICLE V. REPRESENTATIONS AND WARRANTIES OF CSB AND
THE TARGET |
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7 |
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Section 5.01 |
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Ownership
of the Shares |
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7 |
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Section 5.02 |
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Organization and Qualification of CSB |
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7 |
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Section 5.03 |
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Organization and Qualification of the Target |
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7 |
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Section 5.04 |
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Authority
and Enforceability |
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8 |
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Section 5.05 |
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No Breach
of Contract |
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8 |
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Section 5.06 |
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Bank
Capitalization |
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8 |
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Section 5.07 |
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No
Consents Necessary |
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8 |
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Section 5.08 |
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No
Liabilities or Litigation |
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8 |
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Section 5.09 |
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Approvals |
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9 |
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| ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF ASFG AND
ASB |
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9 |
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Section 6.01 |
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Organization and Qualification of ASFG |
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9 |
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Section 6.02 |
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Organization and Qualification of ASB |
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9 |
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Section 6.03 |
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Authority
and Enforceability |
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9 |
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Section 6.04 |
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No Breach
of Contract |
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9 |
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Section 6.05 |
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No
Consents Necessary |
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9 |
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Section 6.06 |
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Capital
and Approvals |
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9 |
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| ARTICLE VII. OBLIGATIONS AND COVENANTS OF CSB AND THE
TARGET |
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10 |
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Section 7.01 |
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Best
Efforts |
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10 |
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Section 7.02 |
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Confidentiality |
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10 |
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Section 7.03 |
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Untrue
Representations |
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10 |
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| ARTICLE VIII. OBLIGATIONS AND COVENANTS OF ASFG AND
ASB |
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10 |
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Section 8.01 |
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Best
Efforts |
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10 |
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Section 8.02 |
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Confidentiality |
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11 |
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Section 8.03 |
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Untrue
Representations |
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11 |
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Section 8.04 |
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Operating
Name |
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11 |
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Section 8.05 |
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Employee
Non-Solicitation |
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11 |
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| ARTICLE IX. SURVIVAL OF REPRESENTATIONS, WARRANTIES,
AGREEMENT |
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11 |
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Section 9.01 |
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Survival |
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11 |
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Section 9.02 |
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Indemnification by CSB and the Target |
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11 |
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Section 9.03 |
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Indemnification by ASFG and ASB |
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12 |
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Section 9.04 |
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Control
of Litigation |
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13 |
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| ARTICLE X. TERMINATION AND ABANDONMENT |
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14 |
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Section 10.01 |
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Right of
Termination |
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14 |
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Section 10.02 |
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Notice of
Termination |
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15 |
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Section 10.03 |
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Effect of
Termination |
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15 |
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| ARTICLE XI. MISCELLANEOUS |
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15 |
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Section 11.01 |
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Notices |
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15 |
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Section 11.02 |
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Entire
Agreement |
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16 |
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Section 11.03 |
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GOVERNING
LAW |
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16 |
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Section 11.04 |
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Severability |
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17 |
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Section 11.05 |
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Attorneys’ Fees and Costs |
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17 |
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Section 11.06 |
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Specific
Performance |
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17 |
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Section 11.07 |
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Multiple
Counterparts |
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17 |
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Section 11.08 |
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Rules of
Construction |
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17 |
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Section 11.09 |
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Commissions |
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17 |
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Section 11.10 |
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Binding
Agreement, No Assignment |
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18 |
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Section 11.11 |
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Time Is
Of The Essence |
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18 |
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Section 11.12 |
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Publicity |
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18 |
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Section 11.13 |
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No
Third-Party Beneficiaries |
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18 |
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Section 11.14 |
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Expenses |
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AGREEMENT AND PLAN OF
MERGER
This AGREEMENT AND PLAN OF
MERGER (this “Agreement”) is made and entered into as
of the 10th day of August 2007, by and among ATLANTIC SOUTHERN
FINANCIAL GROUP, INC., a Georgia corporation (“ASFG”),
ATLANTIC SOUTHERN BANK, a Georgia state bank and wholly-owned
subsidiary of ASFG (“ASB”), CENTERSTATE BANKS OF
FLORIDA, INC., a Florida corporation (“CSB”) and
CENTERSTATE BANK MID FLORIDA, a Florida state bank and wholly-owned
subsidiary of CSB (“Target”).
WITNESSETH
:
WHEREAS, ASB is a Georgia
state bank with its principal offices in Macon, Georgia, and is a
wholly-owned subsidiary of ASFG;
WHEREAS, the Target is a
Florida state bank located in Lake County, Florida and is a
wholly-owned subsidiary of CSB;
WHEREAS, the respective
Boards of Directors of ASFG, ASB, CSB and the Target are of the
opinion that the transactions described herein are in the best
interests of the parties to this Agreement and their respective
shareholders; and
WHEREAS, this Agreement
provides for the merger of Target with and into ASB (the
“Merger”), with ASB being the surviving bank (as a
Georgia state bank);
NOW, THEREFORE, for and in
consideration of the foregoing and of the mutual representations,
warranties, covenants and agreements contained in this Agreement,
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and subject to the
conditions set forth below, the parties, intending to be legally
bound, undertake, promise, covenant and agree with each other as
follows:
ARTICLE I.
TRANSACTION
Section 1.01
Merger . Subject to the terms and conditions of this
Agreement, Target shall be merged with and into ASB with the effect
provided in Section 7-1-536 of the Financial Institutions Code
of Georgia (“FICG”) and Section 658.2953 of the
Financial Institutions Code of Florida. ASB shall be the Surviving
Entity resulting from the Merger and shall continue to be governed
by the Laws of the State of Georgia. 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 CSB,
Target, Atlantic Southern and ASB.
Section 1.02
Effective Time . The Merger and other transactions
contemplated by this Agreement shall become effective on the date
and at the time the Certificate of Merger reflecting the Merger
shall become effective with the Secretary of State of Georgia and
the Secretary of State of Florida (the “Effective
Time”). At the Effective Time, the separate corporate
existence of Target shall cease, and ASB shall continue as the
Surviving Entity.
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ARTICLE II.
TERMS OF
MERGER
Section 2.01 Articles
of Incorporation . The Articles of Incorporation of ASB in
effect immediately prior to the Effective Time shall be the
Articles of Incorporation of the Surviving Entity until otherwise
duly amended or repealed.
Section 2.02
Bylaws . The Bylaws of ASB in effect immediately prior to
the Effective Time shall be the Bylaws of the Surviving Entity
until duly amended or repealed.
Section 2.03 Merger
Consideration . As consideration for the Merger, ASB shall pay
CSB in immediately available funds, an amount equal to the sum of
$1,000,000, less the Deposit received by CSB pursuant to
Section 4.04, plus an amount equal to the aggregate capital
accounts (the “Merger Consideration”) at the Closing.
All Target capital accounts shall be disclosed in Section 2.03
of the Target Disclosure Memorandum .
Section 2.04 Closing
and Closing Date . Following the receipt of all necessary
regulatory, corporate and other approvals necessary for the
consummation of the transactions contemplated in this Agreement (as
required by Section 3.03, Section 3.05 and
Section 4.03 of this Agreement) and the expiration of any
mandatory waiting periods, the Merger provided for in this
Agreement shall be consummated at a closing (the
“Closing”) to be held on November 30, 2007 (the
“Closing Date”).
ARTICLE
III.
CONDITIONS PRECEDENT TO
OBLIGATIONS OF ASFG AND ASB
All obligations of ASFG and
ASB are subject to the fulfillment, prior to or at the Closing, of
each of the following conditions, any or all of which may be waived
in whole or in part by ASFG or ASB.
Section 3.01
Compliance with Representations Warranties and Agreements .
All representations and warranties made by CSB and the Target in
this Agreement shall have been true and correct in all material
respects when made and shall be true and correct in all material
respects as of the Closing with the same force and effect as if
such representations and warranties were made at and as of the
Closing. CSB and the Target shall have performed or complied in all
material respects with all agreements, terms, covenants and
conditions required by this Agreement to be performed or complied
with by CSB and the Target prior to or at the Closing.
Section 3.02
Proceedings and Documents . All actions, proceedings,
instruments and documents required to effectuate this Agreement or
incidental hereto shall be satisfactory in substance and form to
ASFG and ASB, and ASB shall have received all such counterpart
originals or certified or other copies of such documents as it may
reasonably request, including certified copies of all resolutions
authorizing this Agreement and the transactions contemplated
herein.
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Section 3.03
Governmental and Regulatory Approvals . ASB and ASFG, on the
one hand, and CSB and the Target, on the other hand, shall have
obtained all governmental and regulatory approvals and consents
necessary for the consummation of the Merger and the Related
Transactions described in this Agreement. Such approvals include,
without limitation, the approval of (i) the Board of Governors
of the Federal Reserve System (the “Federal Reserve”),
(ii) the FDIC, and (iii) the Georgia Department of
Banking and Finance (the “GDBF”). No such approval or
consent shall be conditioned or restricted in a manner which in the
reasonable judgment of ASB or ASFG would unduly impair or restrict
the operations of the Target, ASB or ASFG following the Closing or
render consummation of the Merger and the Related Transactions
unduly burdensome; provided that ASB and ASFG have used their
reasonable efforts (it being understood that such reasonable
efforts shall not include the threatening or commencement of any
litigation) to cause such conditions or restrictions to be removed
or modified as appropriate.
Section 3.04 No
Litigation . No action shall have been taken, and no statute,
rule, regulation or order shall have been promulgated, enacted,
entered, enforced or deemed applicable to this Agreement or the
transactions contemplated hereby by any governmental authority or
by any court, including the entry of a preliminary or permanent
injunction, that would (a) make this Agreement or the
transactions contemplated hereby illegal, invalid or unenforceable,
(b) require the divestiture of a material portion of the
assets of ASB or the Target, (c) impose material limits in the
ability of any party to this Agreement to consummate the Agreement
or the transactions contemplated hereby, or (d) if this
Agreement or the transactions contemplated hereby are consummated,
subject ASFG, ASB or any officer, director, shareholder or employee
of ASFG or ASB to criminal or civil liability. No action or
proceeding before any court or governmental authority shall be
threatened, instituted or pending that would reasonably be expected
to result in any of the consequences referred to in clauses
(a) through (d) above.
Section 3.05 Related
Transactions . Prior to the Closing, CenterState Bank West
Florida (“CBWF”) will acquire all of the assets and all
of the banking offices of the Target, except for the main office of
the Target (the “Main Office”) and the amount of
deposits required by the FDIC to maintain the required depository
insurance (which deposits ASB will cause to be placed in Target
prior to the Closing). Immediately subsequent to the Closing, ASB
will transfer the Main Office to CBWF. ASB will have received,
prior to the Effective Time, permission from the FDIC and the GBDF
to establish a branch in the state of Florida at a location to be
determined by ASB, which branch will open for business as of the
Effective Time. The transactions described in this
Section 3.05 are the “Related
Transactions.”
Section 3.06 Retained
Assets; No Deposits or Other Liabilities . The assets of the
Target immediately subsequent to the Closing Date and upon
consummation of the ASB Main Office transfer to CBWF, shall consist
of the Target’s charter, articles, bylaws, and cash equal to
the capital accounts of the Target and to the amount of deposits
required by the FDIC to maintain the required depository insurance
(the “Retained Assets”). On the Closing Date, the
Target shall have no deposits or other liabilities outside of the
deposits required by the FDIC to maintain the required depository
insurance. The parties agree that the Retained Assets shall not
include any rights to the name “CenterState Banks” or
any variation thereof.
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Section 3.07 Third
Party Consents . The Target shall receive all third party
consents that may be necessary to consummate the Merger, effect the
Related Transactions and transfer the contracts, leases, assets and
obligations to CBWF.
Section 3.08 Actions
to be Taken at the Closing by the CSB and the Target . At the
Closing, CSB and the Target shall execute and acknowledge (as
appropriate) and deliver to ASB and ASFG such documents and
certificates necessary to carry out the terms and provisions of
this Agreement, including the following (all of such actions
constituting conditions precedent to ASB’s obligations to
consummate hereunder):
A. A certificate, dated as of
the Closing Date, executed by the appropriate officers of each of
CSB and the Target, pursuant to which CSB and the Target shall
certify that (i) all of the representations and warranties
made by CSB and the Target in this Agreement are true and correct
in all material respects on and as of the Closing Date as if made
on such date and (ii) CSB and the Target has performed and is
in compliance in all materials respects with all of CSB’s and
the Target’s covenants and agreements contained
herein.
B. A certificate, dated as of
the Closing Date, duly executed by the Secretary or an Assistant
Secretary of CSB and Target, acting solely in his or her capacity
as an officer of CSB or the Target, as applicable, pursuant to
which CSB and the Target shall certify (i) the due adoption by
the Board of Directors of each of CSB and the Target of corporate
resolutions attached to such certificate authorizing the execution
and delivery of this Agreement and the other agreements and
documents contemplated hereby, and the taking of all actions
contemplated hereby and thereby; (ii) the incumbency and true
signatures of those officers of CSB and the Target duly authorized
to act on their behalf in connection with the transactions
contemplated by this Agreement and to execute and deliver this
Agreement and other agreements and documents contemplated hereby,
and the taking of all actions contemplated hereby and thereby on
behalf of CSB and the Target; and (iii) that the copy of the
Bylaws of each of CSB and the Target attached to such certificate
is true and correct and such Bylaws have not been amended except as
reflected in such copy.
C. True, correct and complete
copies of the Articles of Incorporation and other charter documents
of the Target and all amendments thereto, duly certified as of a
recent date by the Florida Secretary of State.
D. A Certificate of good
standing for the Target, dated as of a recent date, issued by the
Florida Secretary of State duly certifying to the good standing of
the Target in the State of Florida.
E. The written resignation of
all executive officers and directors of the Target. Effective as of
the Closing, and the employment of all employees of the Target
shall be terminated by the Target or CSB.
F. The written consent action
of the sole shareholder of Target approving the Merger.
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G. All other documents
required to be delivered to ASFG and ASB by CSB and the Target
under the provisions of this Agreement and all other documents,
certificates and instruments as are reasonably required by ASFG and
ASB.
Section 3.09 Further
Assurances . At any time and from time to time after the
Closing, at the request of any party to this Agreement and without
further consideration, any party so requested shall execute and
deliver such other instruments and take such other actions as the
requesting party may reasonably deem necessary or desirable in
order to effect the transactions contemplated hereby.
ARTICLE V.
CONDITIONS PRECEDENT TO
OBLIGATIONS OF CSB AND THE TARGET
All obligations of CSB and
the Target under this Agreement are subject to the fulfillment,
prior to or at the Closing, of each of the following conditions,
any or all of which may be waived in whole or in part by CSB and
the Target:
Section 4.01
Compliance with Representations, Warranties and Agreements .
All representations and warranties made by ASFG and ASB in this
Agreement shall have been true and correct in all material respects
when made and shall be true and correct in all material respects as
of the Closing with the same force and effect as if such
representations and warranties were made at and as of the Closing.
ASFG and ASB shall have performed or complied in all material
respects with all agreements, terms, covenants and conditions
required by this Agreement to be performed or complied with by ASFG
or ASB prior to or at the Closing.
Section 4.02
Proceedings and Documents . All actions, proceedings,
instruments and documents required to effectuate this Agreement or
incidental hereto shall be reasonably satisfactory in substance and
form to CSB and Target, and CSB and Target shall have received all
such counterpart originals or certified or other copies of such
documents as they may reasonably request, including certified
copies of all resolutions authorizing this Agreement and the
transactions contemplated herein.
Section 4.03
Governmental and Regulatory Approvals . ASFG and ASB on one
hand, and CSB and the Target on the other hand, shall have obtained
all governmental and regulatory approvals and consents necessary
for the consummation of the Merger and the Related Transactions
described in this Agreement and Target’s payment of a special
dividend to CSB immediately prior to the Closing. Such approvals
include, without limitation, the approval of (i) the Federal
Reserve, (ii) the FDIC, and (iii) the GDBF. No such
approval or consent shall be conditioned or restricted in a manner
which in the reasonable judgment of Target or CSB would unduly
impair or restrict the operations of ASB following the Closing or
render consummation of the Merger and the Related Transactions
unduly burdensome; provided that Target and CSB have used their
reasonable efforts (it being understood that such reasonable
efforts shall not include the threatening or commencement of any
litigation) to cause such conditions or restrictions to be removed
or modified as appropriate.
Section 4.04
Definitive Agreement Deposit . Upon execution of this
Agreement, ASB shall pay to CSB, in immediately available funds,
the sum of $100,000 (the “Deposit”). Such
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payment will be reduced from the Merger
Consideration set forth in Section 2.03 provided the Merger is
consummated. If the Merger is not consummated, such payment shall
be nonrefundable unless (i) ASB is ready and able to
consummate the Merger, and CSB or the Target fail to consummate the
Merger or effect the Related Transactions described in
Section 3.05, or (ii) ASB is unable to acquire all
necessary regulatory approvals or may acquire said approvals only
upon a condition or conditions contemplated by the last sentence of
Section 4.03 of this Agreement.
Section 4.05 No
Litigation . No action shall have been taken, and no statute,
rule, regulation or order shall have been promulgated, enacted,
entered, enforced or deemed applicable to this Agreement or the
transactions contemplated hereby by any governmental authority or
by any court, including the entry of a preliminary or permanent
injunction, that would (a) make this Agreement or the
transactions contemplated hereby illegal, invalid or unenforceable,
(b) impose material limits in the ability of any party to this
Agreement to consummate the Agreement or the transactions
contemplated hereby, or (c) if this Agreement or the
transactions contemplated hereby are consummated, subject CSB, the
Target or any officer, director, shareholder or employee of CSB or
the Target to criminal or civil liability. No action or proceeding
before any court or governmental authority shall be threatened,
instituted or pending that would reasonably be expected to result
in any of the consequences referred to in clauses (a) through
(c) above.
Section 4.06 Related
Transactions . Prior to the Closing, CBWF will acquire all of
the assets and all of the banking offices of the Target, except for
the Main Office and the amount of deposits required by the FDIC to
maintain the required depository insurance. Immediately subsequent
to the Closing, ASB will transfer the Main Office to CBWF. ASB will
have received, prior to the Effective Time, permission from the
FDIC and the GBDF to establish a branch in the state of Florida at
a location to be determined by ASB, which branch will open for
business as of the Effective Time.
Section 4.07 Third
Party Consents . The Target shall receive all third party
consents that may be necessary to consummate the Merger and
necessary for Target to transfer its contracts, leases, assets and
obligations to CSB.
Section 4.08 Actions
to be Taken at the Closing by ASFG and ASB . At the Closing,
ASB and ASFG shall deliver to the Target the following:
A. Merger Consideration paid
by one or more wire transfers.
B. A certificate, dated as of
the Closing Date, executed by the appropriate officers of ASB and
ASFG, pursuant to which ASB and ASFG shal
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