AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement") is made
as of this 15th day of May, 1995, by and among CENTRAL
CORPORATION, a Louisiana corporation ("Central"); and FIRST
COMMERCE CORPORATION, a Louisiana corporation ("FCC").
R E C I T A L S
1. Each of Central and FCC is a registered bank holding
company under the BHC Act (such term and other capitalized terms
used in this Agreement are used as defined in Section I).
2. The Board of Directors of each of Central and FCC
believes that the transactions described in this Agreement are in
the best interests of such Party and its shareholders.
3. By virtue of the reorganization that is effectuated by
this Agreement, (a) Central will be merged into FCC, and (b) as a
result of the foregoing Merger, except as provided in this
Agreement, the then outstanding shares of Central Common Stock
will be converted into shares of FCC Common Stock.
4. The Merger is subject to prior approval of, among
others, the shareholders of each of Central and FCC, and the
Federal Reserve, and the prior satisfaction of certain other
conditions set forth in this Agreement.
5. Central has simultaneously executed and delivered its
Stock Option Agreement to FCC, by which Central grants to FCC an
option to purchase shares of Central Common Stock under certain
circumstances described therein.
6. The Parties intend that the reorganization contemplated
by this Agreement be accounted for as a pooling-of-interests and
that it qualify for federal income tax purposes as a tax-free
reorganization under Section 368(a)(1)(A) of the Internal Revenue
Code.
A G R E E M E N T
In consideration of the foregoing and of the mutual
warranties, representations, covenants and agreements set forth
herein, and for other good and valuable consideration the receipt
and sufficiency of which are acknowledged, the parties to this
Agreement agree as follows:
SECTION I.
DEFINITIONS
Except as may otherwise be provided in this Agreement, the
capitalized terms set forth below shall have the following
respective meanings, in their singular or plural forms as
applicable:
1.1 "Acquisition Transaction" shall mean, with respect to
each Party, any of the following: (i) a merger or consolidation
or share exchange, or any similar transaction (other than the
Merger), (ii) a purchase, lease or other acquisition of all or
substantially all the assets of such Party or any significant
subsidiary (as defined in Rule 1.02 of Regulation S-X of the SEC)
(a "Significant Subsidiary") of such Party, (iii) a purchase or
other acquisition of beneficial ownership by any person or
"group" (as such term is defined in Section 13(d)(3) of the 1934
Act) (including by way of merger, consolidation, share exchange
or otherwise) of securities representing 10% or more of the
voting power of such Party or any Significant Subsidiary of such
Party, but excluding the acquisition of beneficial ownership by
any employee benefit plan maintained or sponsored by such Party,
(iv) a tender or exchange offer to acquire securities
representing 10% or more of the voting power of such Party, (v) a
public proxy or consent solicitation made to shareholders of such
Party seeking proxies in opposition to any proposal that has been
recommended by the Board of Directors of such Party, (vi) the
filing of an application or notice with the Federal Reserve, or
other federal or state bank regulatory authority (which
application has been accepted for processing) seeking approval to
engage in one or more of the transactions referenced in clauses
(i) through (iv) above, or (vii) the making of a bona fide
proposal to such Party or its shareholders by public announcement
or written communication that is or becomes the subject of public
disclosure to engage in one or more of the transactions or events
referenced in clauses (i) through (v) above.
1.2 "Agreement" shall mean this Agreement and Plan of
Merger.
1.3 "BCL" shall mean the Louisiana Business Corporation
Law, as amended.
1.4 "BHC Act" shall mean the federal Bank Holding Company
Act of 1956, as amended.
1.5 "Closing" shall mean the closing of the transactions
contemplated hereunder which will take place as described in
Section 3.1 of this Agreement.
1.6 "Central Bank" shall mean Central Bank, a Subsidiary of
Central.
1.7 "Central Common Stock" shall mean the Common Stock, par
value $1.00 per share, of Central.
1.8 "Central Companies" shall mean, collectively, Central
and all Central Subsidiaries.
1.9 "Central ESOP" shall mean the Central Corporation
Employee Stock Ownership Plan.
1.10 "Central 401(k) Plan" shall mean the Central Bank
401(k) Savings Plan.
1.11 "Central Retiree Benefit Plan" shall mean the Central
Bank Group Medical Plan, which plan provides post-retirement
medical and life insurance benefits to eligible retired employees
of the Central Companies and their dependents.
1.12 "Central Retirement Plan" shall mean Retirement Plan
for Employees of Central Bank.
1.13 "Central Subsidiaries" shall mean the Subsidiaries of
Central, which shall include Central Bank and the Central
Subsidiaries described in Section 5.3 of this Agreement and any
corporation, bank, savings bank, association or other entity that
becomes a Subsidiary of Central in the future.
1.14 "Dissenters' Shares" shall mean shares of Central
Common Stock as to which dissenters' rights have been perfected
and not withdrawn or otherwise forfeited under Section 131 of the
BCL.
1.15 "Effective Time" shall mean the date and time at which
the Merger contemplated by this Agreement becomes effective, as
described in Section 3.2 of this Agreement.
1.16 "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
1.17 "FCC Common Stock" shall mean the Common Stock, par
value $5.00 per share, of FCC.
1.18 "FCC Companies" shall mean, collectively, FCC and all
FCC Subsidiaries.
1.19 "FCC Retirement Plan" shall mean the Retirement Plan
for Employees of First Commerce Corporation.
1.20 "FCC Savings Plan" shall mean the First Commerce
Corporation Tax-Deferred Savings Plan.
1.21 "FCC Stock Incentive Plan" shall mean FCC's Amended and
Restated 1992 Stock Incentive Plan.
1.22 "FCC Stock Option Plans" shall mean the following
employee and/or director stock option and/or stock appreciation
rights plans of FCC: the FCC Stock Incentive Plan; and any
additional employee stock option plans and stock appreciation
rights plans assumed by FCC in connection with any acquisition
transaction involving FCC, in each case as such plans may be
amended.
1.23 "FCC Subsidiaries" shall mean the Subsidiaries of FCC,
which shall include the FCC Subsidiaries described in Section 5.3
of this Agreement and any corporation, bank, savings bank,
association or other entity that becomes or is acquired as a
Subsidiary of FCC in the future.
1.24 "Federal Reserve" shall mean the Board of Governors of
the Federal Reserve System.
1.25 "Financial Statements" shall mean (i) the consolidated
balance sheets (including relates notes and schedules, if any) of
a Party as of December 31, 1994 and 1993, and the related
consolidated statements of income, changes in stockholders'
equity, and cash flows (including related notes and schedules, if
any) for the respective periods then ended, as filed by such
Party in SEC Documents and (ii) the consolidated balance sheets
of such Party (including related notes and schedules, if any) and
related consolidated statements of income, changes in
stockholders' equity, and cash flows (including related notes and
schedules, if any) included in SEC Documents filed by such Party
with respect to periods ended subsequent to December 31, 1994.
1.26 "GAAP" shall mean generally accepted accounting
principles consistently applied.
1.27 "Internal Revenue Code" shall mean the Internal Revenue
Code of 1986, as amended.
1.28 "Joint Proxy Statement" shall mean the proxy statement
used by FCC and Central to solicit the approval of their
respective shareholders of the transactions contemplated by this
Agreement and the Merger Agreement.
1.29 "Market Value" shall mean the average of the closing
sales prices of a share of FCC Common Stock on the NASDAQ Stock
Market for the 15 business days ended on the last business day
before the Effective Time. In the event FCC changes the number
of shares of FCC Common Stock issued and outstanding as a result
of any stock split, stock dividend or other similar change in
FCC's capitalization, or if a distribution of securities is made
in respect of the FCC Common Stock as a result of any dividend
(other than regular quarterly cash dividends), spinoff or other
reorganization in which FCC Common Stock is not changed into or
exchanged for a different kind of securities, and in any such
case the record date is before the Effective Time and the ex-
dividend or ex-distribution date is subsequent to, or during, the
period during which Market Value is determined such that such
event is not reflected in any one or more of the closing sales
prices used to determine Market Value, the appropriate adjustment
shall be made in such closing sales price or prices so as to
reflect such change.
1.30 "Material Adverse Change" has the meaning given to such
term in Section 6.3.
1.31 "Merger Agreement" shall mean the Agreement of Merger,
substantially in the form attached hereto as Exhibit I, providing
for the Merger.
1.32 "Merger Parties" shall mean, collectively, FCC and
Central.
1.33 "Merger" shall mean the merger of Central into FCC.
1.34 "1933 Act" shall mean the Securities Act of 1933, as
amended.
1.35 "1934 Act" shall mean the Securities Exchange Act of
1934, as amended.
1.36 "Party" shall mean either FCC or Central, and "Parties"
shall mean FCC and Central.
1.37 "Previously Disclosed" shall mean, with respect to a
Party, information set forth in a disclosure schedule by such
Party to the other Party delivered to such other Party prior to
or contemporaneously with the execution and delivery of this
Agreement and accepted by such other Party (such acceptance to be
evidenced by such other Party executing an acknowledgment of
acceptance on such disclosure schedule). Following termination
of (but not during) the Notice Period that is referred to in
Section 9.1(h), "Previously Disclosed" shall also mean all
information about a Party that had been publicly disclosed in SEC
Documents filed by that Party prior to the date of this
Agreement. The preceding sentence shall not apply in determining
the right of either Party to terminate this Agreement during the
Notice Period under Section 9.1(h).
1.38 "Purchase Event" shall have the meaning given to such
term in the Stock Option Agreement.
1.39 "Registration Statement" shall mean the Registration
Statement on Form S-4 (or other appropriate form) and all
amendments and supplements thereto filed with the SEC by FCC
under the 1933 Act in connection with the transactions
contemplated by this Agreement.
1.40 "Regulatory Authorities" shall mean, collectively, the
Federal Reserve, the State Regulatory Commissioners and any other
federal or state banking, insurance, securities or other
regulatory authority whose approval is necessary to consummate
the transactions contemplated by this Agreement.
1.41 "SEC" shall mean the United States Securities and
Exchange Commission.
1.42 "SEC Documents" shall mean all reports, proxy
statements, registration statements and other documents filed by
a Party or any of its Subsidiaries pursuant to the Securities
Laws.
1.43 "Securities Laws" shall mean the 1933 Act, the 1934
Act, the Investment Company Act of 1940, as amended, the
Investment Advisors Act of 1940, as amended, the Trust Indenture
Act of 1939, as amended, and the rules and regulations of the SEC
promulgated under each of such Acts.
1.44 "Shareholders' Meetings" shall mean the meetings of the
shareholders of FCC and Central to be held pursuant to
Section 7.1 of this Agreement, including any adjournments
thereof.
1.45 "State Regulatory Commissioners" shall mean any state
banking, insurance, securities or other regulatory authority
whose approval is necessary to consummate the transactions
contemplated by this Agreement, the Merger Agreement and the
Stock Option Agreement.
1.46 "Stock Option Agreement" shall mean the Stock Option
Agreement, in the form attached hereto as Exhibit II, to be dated
May 15, 1995, among Central and FCC.
1.47 "Subsidiaries" shall mean all those corporations,
banks, savings banks, associations and other entities of which
the Party in question owns or controls 5% or more of the
outstanding equity securities either directly or through an
unbroken chain of entities as to each of which 5% or more of the
outstanding equity securities is owned directly or indirectly by
such Party; provided, however, there shall not be included any
such entity acquired in good faith through foreclosure, or any
such entity to the extent that the equity securities of such
entity are owned or controlled in a bona fide fiduciary capacity,
through a small business investment corporation or otherwise as
an investment by an entity that invests in unaffiliated companies
in the ordinary course of business.
In Section V of this Agreement, the capitalized terms set
forth below shall have the following respective meanings, in
their singular or plural forms, as applicable:
1.48 "Warrantor" shall mean FCC or Central, as the case may
be.
1.49 "Warrantor Capital Stock" shall mean the FCC Capital
Stock or the Central Common Stock, as the context shall require,
which shall in this and each of the following cases depend on
whether the Warrantor is FCC or Central and will correspond
therewith.
1.50 "Warrantor Common Stock" shall mean the FCC Common
Stock or the Central Common Stock, as the context shall require.
1.51 "Warrantor Companies" shall mean the FCC Companies or
the Central Companies, as the context shall require.
1.52 "Warrantor Financial Statements" shall mean the
Financial Statements of Warrantor.
1.53 "Warrantor Shareholders' Meeting" shall mean the
Shareholders' Meeting of Warrantor.
1.54 "Warrantor Stock Option Plans" shall mean the FCC Stock
Option Plans or the Central Stock Option Plans, as the context
shall require.
1.55 "Warrantor Subsidiaries" shall mean the Subsidiaries of
Warrantor.
Other terms are defined as set forth hereinbelow.
SECTION II.
CERTAIN TRANSACTIONS AND TERMS OF MERGER
2.1 EXECUTION OF STOCK OPTION AGREEMENT. Simultaneously
with the execution of this Agreement and as a condition thereto,
Central has approved the execution and delivery of the Stock
Option Agreement and, on May 15, 1995, Central will execute and
deliver the Stock Option Agreement.
2.2 MERGER. Subject to the terms and conditions of this
Agreement, at the Effective Time, Central will be merged into and
with FCC in accordance with the Merger Agreement and the
provisions of Section 112 of the BCL, and FCC shall be the
corporation surviving such merger.
2.3 CONVERSION OF CENTRAL COMMON STOCK
(a) Except for Dissenters' Shares, at the Effective
Time each outstanding share of Central Common Stock will be
converted into that number of shares of FCC Common Stock as is
equal to (A) 1.670 (the "Conversion Ratio"), minus (B) the
quotient of (i)(a) the amount (if any) by which all expenses of
the Central Companies in connection with the transactions
contemplated by this Agreement exceed $1,750,000 divided by
(b) the Market Value of one share of FCC Common Stock; divided by
(ii) the number of shares of Central Common Stock outstanding at
the Effective Time. In calculating expenses of the Central
Companies for purposes of the preceding clause (B)(i)(a),
expenses which Central incurs directly or indirectly as a result
of the following shall not be included: (1) any action or
failure to act on the part of FCC; (2) any circumstances or
conditions surrounding the ongoing business operations or
regulatory compliance of FCC; or (3) any claims or proceedings,
regulatory or otherwise, with merit or not, brought against FCC
in connection with the transactions contemplated herein or which
significantly delay or impede FCC's performance in such
transactions. Central shall, at the Closing, deliver to FCC an
itemized list of all expenses of the type contemplated by
clause (B)(i)(a), including those to be excluded by reason of the
preceding sentence. The aggregate number of shares of FCC Common
Stock to be issued in the Merger, prior to any adjustment in
accordance with Section 2.3(c) or in accordance with clause
(B)(i)(a) of this Section 2.3(a), shall in no event exceed
6,792,453, plus, in the event of any issuance by Central of
shares of Central Common Stock pursuant to the Stock Option
Agreement ("Central Option Shares") the number of shares of FCC
Common Stock into which such Central Option Shares are converted
by virtue of the Merger.
(b) Shares of Central Common Stock that are held by
Central or any Central Subsidiary (other than shares held by such
a Subsidiary in a fiduciary capacity other than for Central or
any other Subsidiary of Central) shall not be considered to be
outstanding and shall be cancelled (and not converted) by virtue
of the Merger at the Effective Time and without any further
action by either Party. Central Option Shares (as defined in
Section 2.3(a)) that are held by FCC or any FCC Subsidiary (other
than Central Option Shares held by such a Subsidiary in a
fiduciary capacity other than for FCC or any other Subsidiary of
FCC) shall be cancelled (and not converted) by virtue of the
Merger at the Effective Time and without any further action by
either Party.
(c) If, prior to the Effective Time, Central (subject
to any restrictions contained in this Agreement) or FCC, as the
case may be, should split or combine the Central Common Stock or
the FCC Common Stock, or pay a stock dividend in Central Common
Stock or FCC Common Stock, or otherwise change the Central Common
Stock or FCC Common Stock into any other securities, or make any
other dividend or distribution in respect of the Central Common
Stock or the FCC Common Stock (other than normal cash dividends
as the same may be adjusted from time to time in accordance with
or not in violation of this Agreement), then the Conversion Ratio
(and, correspondingly, the maximum aggregate number of shares of
FCC Common Stock that may be issued in the Merger, as provided in
the last sentence of Section 2.3(a)) will be appropriately
adjusted to reflect such split, combination, dividend or other
distribution or change. No such change will be made that would
prevent the transactions contemplated by this Agreement from
being accounted for as a pooling-of-interests.
(d) In lieu of issuing any fractional share of FCC
Common Stock, each holder of Central Common Stock who would
otherwise be entitled thereto, after aggregating into whole
shares all fractional shares of FCC Common Stock to which such
holder is entitled by virtue of the Merger, upon surrender of the
certificate(s) which represented Central Common Stock, will
receive cash equal to such fractional share multiplied by the
Market Value.
(e) After the Effective Time, each holder of Central
Common Stock (other than Dissenters' Shares), upon surrender of
such holder's certificates therefor to FCC together with a
completed letter of transmittal in the form furnished by FCC,
will be entitled to receive the shares of FCC Common Stock into
which such holder's shares have been converted and cash in lieu
of any fractional share as provided above, less any applicable
tax withholding. Until then, each certificate for Central Common
Stock will represent the number of whole shares of FCC Common
Stock into which the shares of Central Common Stock represented
thereby were converted, except that FCC may refuse to pay any
dividend or other distribution payable to holders of any
unsurrendered certificate for Central Common Stock until
surrender or if such dividend or distribution has reverted in
full ownership to FCC under its Articles of Incorporation.
Whether or not a certificate for Central Common Stock is
surrendered, after the Effective Time it will not represent any
interest in any person other than FCC.
SECTION III.
CLOSING AND EFFECTIVE TIME
3.1 TIME AND PLACE OF CLOSING. The Closing will take place
at 10:00 a.m. on a mutually agreeable date as soon as practicable
following the last to occur of (i) the date that is the required
number of days after the date of the order of the Federal Reserve
approving the Merger pursuant to the BHC Act, (ii) the effective
date (including expiration of any applicable waiting period) of
the order of the final federal or state regulatory agency
approving the Merger or the expiration of all required waiting
periods after the filing of all required notices to all federal
or state regulatory agencies required to consummate the Merger,
and (iii) the date on which the shareholders of the Merger
Parties approve this Agreement; or if no date has been agreed to,
on the earliest date specified by either Party to the other upon
10 days notice following the last to occur of the foregoing. If
all conditions in Section VIII hereof are satisfied, or waived by
the Party entitled to grant such waiver, at the Closing (a) the
Parties shall each provide to the other such proof of
satisfaction of the conditions in Section VIII as the Party whose
obligations are conditioned upon such satisfaction may reasonably
request, (b) the certificates, letters and opinions required by
Section VIII shall be delivered, (c) the appropriate officers of
the Parties shall execute, deliver and acknowledge the Merger
Agreement, and (d) the Parties shall take such further action
including (without limitation) filing the Merger Agreement as is
required to consummate the transactions contemplated by this
Agreement. If on any date established for the Closing all
conditions in Section VIII hereof have not been satisfied or
waived by each Party entitled to grant such waiver, then either
Party, on one or more occasions, may declare a delay of the
Closing of such duration, not exceeding 10 business days, as the
declaring party shall select, but no such delay shall extend
beyond the date set forth in subparagraph (c) of Section 9.1, and
no such delay shall interfere with the right of any party to
declare a termination pursuant to Section IX. The place of
Closing shall be the Board Room of FCC, 210 Baronne Street,
3rd floor, New Orleans, Louisiana.
3.2 EFFECTIVE TIME. The Merger shall become effective on
the date of the Closing at the time at which the Merger Agreement
is accepted for filing by the Louisiana Secretary of State (or
such other time as is specified in the Merger Agreement).
SECTION IV.
MANAGEMENT AND
RELATED MATTERS FOLLOWING MERGER
4.1 BOARDS OF DIRECTORS OF FCC AND CENTRAL BANK
(a) At the Effective Time, by virtue of the Merger, the
Board of Directors of FCC shall consist of those persons serving
as Directors of FCC immediately prior to the Effective Time and,
in addition, Robert C. Cudd, III, Hugh G. McDonald, Jr., Saul A.
Mintz and Tom H. Scott. FCC shall take the appropriate steps to
effectuate the foregoing.
(b) The Merger will itself not change the Board of
Directors of Central Bank but the Parties shall take all required
action so that Howard C. Gaines shall become a Director of
Central Bank at the Effective Time.
4.2 MANAGEMENT OF FCC AND CENTRAL BANK
(a) At the Effective Time, by virtue of the Merger, the
officers of FCC shall consist of those persons serving as
officers of FCC immediately prior to the Effective Time and, in
addition, James A. Altick will at the Effective Time become an
Executive Vice-President of FCC with responsibility for FCC's
Northern Louisiana operations.
(b) At the Closing, Central will cause Central Bank to
enter into (i) a 5-year employment contract with James A. Altick,
as President and Chief Executive Officer of Central Bank, in the
form annexed hereto as Exhibit III, and (ii) a 3-year employment
contract with each of Cary S. Davis, Willis T. McGinnis,
Thomas J. Nicholson, and Edmund L. Pennington, in the forms
annexed hereto as Exhibits IV-A through IV-D, respectively.
(c) FCC represents that the Committee that administers
the FCC Stock Incentive Plan has agreed, in connection with the
transactions contemplated by this Agreement, to award within
30 days following the Closing (to the extent by then selected) to
officers of Central Bank to be selected by Central Bank's Board
of Directors conformably with the provisions of such Plan, in
amounts so selected and conforming, stock options and stock
appreciation rights covering in the aggregate up to 200,000
shares of FCC Common Stock under the FCC Stock Incentive Plan,
which number of shares is subject to adjustment in the manner
provided in the Plan with respect to stock splits, stock
dividends and similar events affecting FCC Common Stock.
4.3 CORPORATE STRUCTURE. At the Effective Time Central
Bank will become a wholly owned subsidiary of FCC and will retain
its name and bank charter thereafter for the foreseeable future
to no less an extent as FCC's other principal banking
subsidiaries retain theirs.
4.4 EMPLOYEES AND BENEFITS
(a) After the Effective Time, FCC will perform the
obligations of Central under its Severance Plan that is annexed
hereto as Exhibit V.
(b) At or prior to the Closing, the Central Companies
shall cause all contributions to be made to the Central ESOP on
behalf of participants in the Central ESOP for periods prior to
the Closing, and all participants in the Central ESOP shall at
the Effective Time have a fully vested and nonforfeitable
interest in their respective account balances thereunder. The
parties agree that no contributions shall be made to the Central
ESOP for periods after the Closing and, as soon as possible after
the Effective Time, FCC, as successor to Central under and with
respect to the Central ESOP, shall take all actions that may be
necessary or required to terminate the Central ESOP and make
available to participants distributions from the Central ESOP in
accordance with the terms of the ESOP and applicable law. To the
extent that the Central ESOP does not provide for distributions
to a participant prior to such participant's termination of
employment, FCC shall amend the Central ESOP to permit such
distributions to the extent permitted by law.
(c) At or prior to the Closing, the Central Companies
shall cause all contributions to be made to the Central 401(k)
Plan on behalf of participants in the Central 401(k) Plan for
periods prior to the Closing, and all participants in the Central
401(k) Plan shall at the Effective Time have a fully vested and
nonforfeitable interest in their respective account balances
thereunder. For periods on and after the Closing, employees of
the Central Companies shall be eligible to participate in the FCC
Savings Plan, subject to the terms and conditions of such Plan,
as it may be amended from time to time. No contributions shall
be made to the Central 401(k) Plan for periods after the Closing.
(d) The parties hereby agree that at the election of
FCC at any time after the Effective Time, the Central Retirement
Plan may be terminated and/or future benefit accruals thereunder
may be frozen. Until such time as such Plan is terminated, to
the extent not prohibited by applicable law, the Central
Retirement Plan shall continue to be maintained by Central Bank
or the FCC Companies after the Closing for the benefit of each
person who was employed by the Central Companies as of the
Closing. If (i) the Central Retirement Plan is terminated, or
(ii) future benefit accruals under the Central Retirement Plan
are frozen, then highly compensated employee(s) of Central will
thereupon be permitted to participate in FCC's Benefit
Restoration Plan (a "Top Hat" plan of FCC) if they meet the
eligibility criteria set forth in such Benefit Restoration Plan.
(e) The parties hereby agree that, to the extent not
prohibited by applicable law, Central Bank or the FCC Companies
shall continue to maintain the Central Retiree Benefit Plan for
the benefit of any employee or former employee of the Central
Companies (or their eligible dependents) who, as of the Closing
(i) was receiving benefits thereunder, or (ii) had satisfied the
requirements for benefits thereunder (without regard to any
requirement that the employee terminate employment or commence
receipt of benefits under any other plan).
(f) To the extent applicable, employees of the Central
Companies shall be given credit under each employee benefit plan,
policy, program and arrangement maintained by the FCC Companies
after the Closing for their service with the Central Companies
prior to the Closing for all purposes other than benefit accrual
under a defined benefit plan (as defined in section 3(35) of
ERISA), including, eligibility to participate, vesting,
satisfying any waiting periods, evidence of insurability
requirements, seniority or the application of any pre-existing
condition limitations.
4.5 INDEMNIFICATION AND INSURANCE.
(a) FCC agrees to provide and to cause the Central
Subsidiaries to continue to provide for a period of 10 years from
and after the Effective Time, all rights of indemnification
currently provided by Central and the Central Subsidiaries in
favor of their respective current and former employees, directors
and officers, on terms no less favorable than those provided in
the charter and by-laws of Central and the Central Subsidiaries,
respectively, on the date of this Agreement, or as otherwise in
effect on the date of this Agreement, with respect to matters
occurring prior to the Effective Time, except that (i) the
aggregate liability of FCC and the Central Subsidiaries under
this Section 4.5(a) shall not exceed $30 million less the amount
of any indemnification liability incurred by Central or the
Central Subsidiaries in favor of their respective current and
former employees, directors and officers after the date of this
Agreement but prior to the Effective Time; and (ii) no person
shall be entitled to indemnification unless, with respect to the
matter for which indemnification is sought, such person acted in
good faith and in a manner such person reasonably believed to be
in, or not opposed to, the best interests of Central or the
Central Subsidiary, as the case may be, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
such person's conduct was unlawful.
(b) FCC will indemnify and hold harmless the Central
Companies, and each of their respective directors and officers,
and each controlling person of Central within the meaning of the
1933 Act, against any claims, suits, proceedings, investigations
or other actions ("Claims"), and any related losses, damages,
costs, expenses, liabilities or judgments, whether joint, several
or solidary, insofar as they arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
made in the Registration Statement or the Joint Proxy Statement,
or an omission or alleged omission therefrom of a material fact
necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading,
and will reimburse each such person promptly as incurred for
legal and other expenses reasonably incurred in connection with
investigating or defending any such Claims; provided, that FCC
will not be liable to the extent that any such Claim arises out
of or is based upon any such untrue statement or omission or
alleged untrue statement or omission made in reliance on and in
conformity with information furnished to FCC by any Central
Company or, with respect to any indemnified person, by that
person.
(c) Any indemnified person wishing to claim
indemnification under Section 4.5, upon learning of any claim,
shall notify FCC thereof as promptly as is practicable, but the
failure so to notify FCC shall not relieve FCC from any
obligation it has under this Section 4.5 except to the extent it
is actually prejudiced by such failure. FCC shall have the right
to assume the defense thereof and shall not be liable for any
expenses subsequently incurred by such indemnified person in
connection with the defense thereof, except that if FCC does not
assume or continue to pursue such defense, or counsel for the
indemnified person advises in writing that there are material
substantive issues that raise conflicts of interest between FCC
and the indemnified person, then the indemnified person may
retain counsel satisfactory to such person (and reasonably
satisfactory to FCC), and FCC shall pay all reasonable fees and
expenses of such counsel promptly as incurred, provided that (i)
FCC shall not be obligated to pay for more than one counsel for
all indemnified persons in any jurisdiction except as may be
required due to conflicts of interest, (ii) the indemnified
persons will cooperate (to the extent reasonably appropriate
under the circumstances) in the defense of any such claim, and
(iii) FCC shall not be liable for any settlement effected without
its prior written consent.
(d) For ten years after the Effective Time, FCC shall
provide, if available, officers' and directors' liability
insurance in respect of acts or omissions of officers and
directors of the Central Companies occurring prior to the
Effective Time, including but not limited to the transactions
contemplated by this Agreement, covering each such Person
currently covered by Central's officers' and directors' liability
insurance policy, or who becomes covered by such policy prior to
the Effective Time, on terms with respect to coverage and amount
not materially less favorable than those of such policy in effect
on the date hereof, provided that in satisfying its obligation
under this Section, FCC shall not be obligated to pay premiums in
excess of $150,000 per year. If the foregoing insurance is not
available for that amount, then FCC shall provide the maximum
coverage that can be obtained for that amount. Determinations as
to the availability and comparability and selection of coverage,
and all other determinations necessary to implement this
Section 4.5(d), shall be made in FCC's sole discretion (but in
good faith), and FCC shall have no liability for any such
determination so made.
(e) In the event FCC or any of its successors or
assigns (i) reorganizes or consolidates with or merges into or
enters into another business combination transaction with any
other person or entity and is not the resulting, continuing or
surviving corporation or entity of such reorganization,
consolidation, merger or transaction or (ii) liquidates,
dissolves or transfers all or substantially all of its properties
and assets to any person or entity, then, and in each such case,
proper provisions will be made so that such surviving corporation
or transferee and its successors and assigns assume the
obligations set forth in this Section 4.5.
SECTION V.
REPRESENTATIONS AND WARRANTIES OF
FCC AND CENTRAL
Each of FCC and Central (each a "Warrantor") hereby
represents and warrants to the other of them the following
information, to the extent such information pertains to itself,
its Subsidiaries, and/or its or their business or affairs:
5.1 ORGANIZATION, STANDING, AND AUTHORITY. Warrantor is a
corporation duly organized, validly existing, and in good
standing under the laws of the State of Louisiana, and is duly
qualified to do business and in good standing in the States of
the United States and foreign jurisdictions where its ownership
or leasing of property or the conduct of its business requires it
to be so qualified and in which the failure to be duly qualified
would, either individually or in the aggregate, have a material
adverse effect on the financial condition, results of operations
or, to Warrantor's best knowledge, business prospects of the
Warrantor Companies taken as a whole on a consolidated basis or
Warrantor's ability to consummate the transactions contemplated
by this Agreement and the Stock Option Agreement on the terms
herein and therein provided (a "Warrantor Material Adverse
Effect"). Warrantor has corporate power and authority to carry
on its business as now conducted, to own, lease and operate its
assets, properties and business, and to execute and deliver, and
to perform its obligations under, this Agreement and the Stock
Option Agreement. Warrantor is duly registered as a bank holding
company under the BHC Act. Warrantor has in effect all federal,
state, local and foreign governmental authorizations necessary
for it to own or lease its properties and assets and to carry on
its business as it is now conducted, the absence of which would,
either individually or in the aggregate, have a Warrantor
Material Adverse Effect.
5.2 CAPITAL STOCK.
(a) The authorized, issued and outstanding capital
stock of Warrantor as of the date of this Agreement, the number
of shares of Warrantor Common Stock reserved for issuance under
the Warrantor Stock Option Plans as of such date and the number
of shares of Warrantor Common Stock that are subject to
outstanding options under such Plans as of such date, are set
forth in the section of Schedule 5.2(a) attached hereto that
pertains to Warrantor. All of the issued and outstanding shares
of Warrantor Capital Stock are duly and validly authorized and
issued and are fully paid and non-assessable. None of the
outstanding shares of Warrantor Capital Stock has been issued in
violation of any preemptive rights of the current or past
shareholders of Warrantor.
(b) Except as Previously Disclosed or set forth in
Section 5.2(a) or Schedule 5.2(a) and except as provided under
the Stock Option Agreement, there are, as of the date of this
Agreement and, with respect to Central, will be at the Effective
Time no shares of capital stock or other equity securities of
Warrantor outstanding and, with respect to Central, no
outstanding options, warrants, scrip, rights to subscribe to,
calls or commitments of any character whatsoever relating to, or
securities or rights convertible into or exchangeable for, shares
of the capital stock of Central or contracts, commitments,
understandings or arrangements by which Central is or may be
bound to issue additional shares of its capital stock or options,
warrants or rights to purchase or acquire any additional shares
of its capital stock.
5.3 WARRANTOR SUBSIDIARIES. Exhibit 22 to Warrantor's
Annual Report on Form 10-K for the fiscal year ended December 31,
1994, as supplemented or updated by information Previously
Disclosed, lists all of the Warrantor Subsidiaries that are
Significant Subsidiaries (as defined in Section 1.1) ("Warrantor
Significant Subsidiaries")as of the date of this Agreement. Each
of the Warrantor Significant Subsidiaries that is a bank is an
"insured depository institution" as defined in the Federal
Deposit Insurance Act and applicable regulations thereunder. No
equity securities of any of the Warrantor Significant
Subsidiaries are or may become required to be issued (other than
to Warrantor) by reason of any options, warrants, scrip, rights
to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into or
exchangeable for, shares of the capital stock of any Warrantor
Significant Subsidiary, and there are no contracts, commitments,
understandings or arrangements by which any Warrantor Significant
Subsidiary is bound to issue (other than to Warrantor) additional
shares of its capital stock or options, warrants or rights to
purchase or acquire any additional shares of its capital stock.
There are no contracts, commitments, understandings or
arrangements by which any of the Warrantor Companies is or may be
bound to sell or otherwise transfer any shares of the capital
stock of any Warrantor Significant Subsidiary, except for a
transfer to any of the Warrantor Companies, and there are no
contracts, commitments, understandings or arrangements relating
to the rights of any Warrantor Company to vote or to dispose of
such shares. Except as provided in 12 U.S.C. Section 55 in the
case of Warrantor Significant Subsidiaries that are national
banks or Louisiana Revised Statutes 6:262 in the case of
Warrantor Significant Subsidiaries that are state banks, all of
the shares of capital stock of each Warrantor Significant
Subsidiary held by Warrantor or a Warrantor Subsidiary are fully
paid and non-assessable and are owned by Warrantor or a Warrantor
Subsidiary free and clear of any claim, lien or encumbrance.
Except as Previously Disclosed, each Warrantor Significant
Subsidiary is either a national banking association, a state
bank, a state savings bank or a corporation, and is duly
organized, validly existing and in good standing under the laws
of the jurisdiction in which it is incorporated or organized, and
is duly qualified to do business and in good standing in the
jurisdictions where its ownership or leasing of property or the
conduct of its business requires it to be so qualified and in
which the failure to be duly qualified could, either individually
or in the aggregate, have a Warrantor Material Adverse Effect.
Each Warrantor Significant Subsidiary has the corporate power and
authority necessary for it to own or lease its properties and
assets and to carry on its business as it is now being conducted,
and has all federal, state, local and foreign governmental
authorizations necessary for it to own or lease its properties
and assets and to carry on its business as it is now being
conducted, the absence of which governmental authorizations
would, either individually or in the aggregate, have a Warrantor
Material Adverse Effect.
5.4 AUTHORITY
(a) The execution and delivery of this Agreement, the
Merger Agreement and the Stock Option Agreement and the
consummation of the transactions contemplated herein or therein,
including the Merger, have been duty and validly authorized by
all necessary corporate action on the part of Warrantor, subject,
with respect to this Agreement and the Merger Agreement, to the
approval of the shareholders of Warrantor to the extent required
by applicable law. This Agreement and the Merger Agreement,
subject to any requisite shareholder approval hereof and thereof,
and the Stock Option Agreement represent valid and legally
binding obligations of Warrantor, enforceable against Warrantor
in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting
the enforcement of creditors' rights generally and except that
the availability of the equitable remedy of specific performance
or injunctive relief is subject to the discretion of the court
before which any proceeding may be brought.
(b) Neither the execution and delivery of this
Agreement, the Merger Agreement or the Stock Option Agreement by
Warrantor, nor the consummation by Warrantor of the transactions
contemplated herein or therein, nor compliance by any Warrantor
Company with any of the provisions hereof or thereof, will
(i) conflict with or result in a breach of any provision of any
Warrantor Company's certificate or articles of incorporation or
by-laws, or (ii) except as Previously Disclosed, constitute or
result in the breach of any term, condition or provision of, or
constitute a default under, or give rise to any right or
termination, cancellation or acceleration with respect to, or
result in the creation of any lien, charge or encumbrance upon
any property or assets of any of the Warrantor Companies pursuant
to, any note, bond, mortgage, indenture, license, agreement,
lease or other instrument or obligation to which any of them is a
party or by which any of them or any of their properties or
assets may be subject, and that would, either individually or in
the aggregate, have a Warrantor Material Adverse Effect, or
(iii) subject to receipt of the requisite approvals,
authorizations, filings, registrations and notifications referred
to in Section 8.5 of this Agreement, violate any order, writ,
injunction, decree, statute, rule or regulation applicable to any
of the Warrantor Companies or any of their properties or assets.
(c) Other than in connection or compliance with the
provisions of applicable state corporate and securities laws, the
Securities Laws and the rules and regulations thereunder, and
other than consents, authorizations, approvals or exemptions
required from the Federal Reserve and the State Regulatory
Commissioners or by virtue of Warrantor's interests in small
business investment corporations, no notice to, filing with,
authorization of, exemption by or consent or approval of any
public body or authority is necessary for the consummation by
Warrantor of the Merger and the other transactions contemplated
by this Agreement, the Merger Agreement and the Stock Option
Agreement.
(d) The Board of Directors of Warrantor (at a meeting
duly called and held) has by requisite vote (i) determined that
the Merger is in the best interests of Warrantor and its
shareholders, among others, (ii) authorized and approved this
Agreement, the Merger Agreement, the Stock Option Agreement and
the transactions contemplated hereby and thereby, including the
Merger, (iii) directed that the Merger be submitted for
consideration to Warrantor's shareholders at the Warrantor
Shareholders' Meeting, and (iv) approved execution of the Stock
Option Agreement in accordance with Section 134C(1)(b) of the
BCL, with the result that such Section will not apply to the
execution and delivery by Warrantor of the Stock Option Agreement
or the issuance of shares of Central Common Stock pursuant to the
Stock Option Agreement, the consummation of the Merger, or any
other transaction to be carried out pursuant to this Agreement,
the Merger Agreement or the Stock Option Agreement.
5.5 FINANCIAL STATEMENTS; ACCOUNTING. Warrantor has
delivered to the other Party, prior to the execution of this
Agreement, Warrantor Financial Statements in respect of periods
ending on or prior to December 31, 1994, and will promptly
deliver when available copies of Warrantor Financial Statements
in respect of periods ending after December 31, 1994. The
Warrantor Financial Statements (as of the dates thereof and for
the periods covered thereby): (i) are (and, in the case of
Warrantor Financial Statements in respect of periods ending after
December 31, 1994, will be) in accordance with the books and
records of the Warrantor Companies, and have been and will
continue to be maintained in accordance with GAAP and good
business practices in all material respects, and (ii) present
(and, in the case of Warrantor Financial Statements in respect of
periods ending after December 31, 1994, will present) fairly the
consolidated financial position and the consolidated results of
operations, changes in stockholders' equity and cash flows of the
Warrantor Companies as of the dates and for the periods
indicated, in all material respects in accordance with GAAP
applicable to banks or bank holding companies applied on a basis
consistent with prior periods (subject in the case of interim
financial statements to normal recurring year-end adjustments
normal in nature and amount).
5.6 ABSENCE OF UNDISCLOSED LIABILITIES. Except as
Previously Disclosed, none of the Warrantor Companies has any
obligation or liability (contingent or otherwise) that is
material, either individually or in the aggregate, to the
financial condition, results of operations or, to the Warrantor
Companies' best knowledge, business prospects of the Warrantor
Companies on a consolidated basis, or that when combined with all
similar obligations or liabilities would, either individually or
in the aggregate, be material to the financial condition, results
of operations or, to the Warrantor Companies' best knowledge,
business prospects of the Warrantor Companies on a consolidated
basis, except (i) as reflected in the Warrantor Financial
Statements delivered prior to the date of this Agreement, (ii) as
reflected by this Agreement and (iii) for commitments and
obligations made, or liabilities incurred, since December 31,
1994 in the ordinary course of its business consistent with past
practices.
5.7 TAX MATTERS.
(a) All material federal, state, local and foreign tax
returns required to be filed by or on behalf of any of Warrantor
and all other corporations, banks, savings banks, associations
and other entities of which Warrantor owns or controls 50% or
more of the outstanding equity securities have been timely filed
or requests for extensions have been timely filed, granted and
have not expired. All taxes shown on filed returns have been
paid. There is no audit examination, deficiency, refund
litigation or matter in controversy with respect to any taxes
that might result in a determination that would, either
individually or in the aggregate, have a Warrantor Material
Adverse Effect, except as reserved against in the Warrantor
Financial Statements or as Previously Disclosed. All taxes,
interest, additions and penalties which are material in amount
and which are due with respect to completed and settled
examinations or concluded litigation have been paid or adequately
reserved for.
(b) Except as Previously Disclosed, none of the
Warrantor Companies has executed an extension or waiver of any
statute of limitations on the assessment or collection of any tax
due that is currently in effect.
(c) Adequate provision for any federal, state, local or
foreign taxes due or to become due for any of the Warrantor
Companies for any period or periods through and including
December 31, 1994, has been made and is reflected in the
December 31, 1994, financial statements included in the Warrantor
Financial Statements.
(d) Deferred taxes of the Warrantor Companies have been
provided for in accordance with GAAP.
5.8 LOANS, RESERVES, AND INVESTMENTS.
(a) All loans, discounts and financing leases (in which
a Warrantor Company is lessor) (collectively, "Credits")
reflected in the Warrantor Financial Statements were, as of the
respective dates of such Financial Statements (i) made for
adequate consideration in the ordinary course of business,
(ii) evidenced by instruments that were true and genuine, and
(iii) if secured, secured by valid perfected security interests,
except in each case for such discrepancies that would not,
individually or in the aggregate, have a Warrantor Material
Adverse Effect. Accurate lists of all such Credits of the
Central Companies and of the investment portfolios of the Central
Companies as of the date of the latest Financial Statements of
Central delivered on or prior to the date of this Agreement have
been made available to FCC.
(b) The aggregate allowances for losses on Credits and
other real estate and foreclosed assets owned reflected on the
latest Warrantor Financial Statement delivered on or prior to the
date of this Agreement were, as of the date of such Financial
Statements, adequate in accordance with regulatory guidelines and
GAAP in all material respects, and there are no circumstances
likely to require in accordance with such guidelines or GAAP a
future material increase in any provisions for such losses or a
material decrease in such allowances. Such allowances reflected
on all Warrantor Financial Statements prepared after the
abovementioned Financial Statements will be adequate in
accordance with such guidelines and GAAP in all material
respects.
5.9 PROPERTIES AND INSURANCE. Except as disclosed or
reserved against in the Warrantor Financial Statements, the
Warrantor Companies have good and marketable title, free and
clear of all liens, encumbrances, charges, defaults or equities
of any character, to all of the material properties and assets,
tangible or intangible, reflected in the Warrantor Financial
Statements as being owned by the Warrantor Companies as of the
dates thereof other than those that would not, individually or in
the aggregate, have a Warrantor Material Adverse Effect. To the
knowledge of Warrantor's management, (a) all buildings and all
fixtures, equipment and other property and assets which are
material to its business on a consolidated basis and are held
under leases or subleases by any of the Warrantor Companies are
held under valid leases or subleases enforceable in accordance
with their respective terms (except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of creditors'
rights generally and except that the availability of the
equitable remedy of specific performance or injunctive relief is
subject to the discretion of the court before which any
proceedings may be brought), other than any such exceptions to
validity or enforceability that would not, individually or in the
aggregate, have a Warrantor Material Adverse Effect; and (b) the
policies of fire, theft, liability, fidelity and other insurance
maintained with respect to the assets or businesses of the
Warrantor Companies provide adequate coverage against loss.
5.10 COMPLIANCE WITH LAWS. Except as Previously Disclosed,
each of the Warrantor Companies:
(a) Is in compliance in all material respects with all
laws, regulations, reporting and licensing requirements and
orders applicable to its business or to the employees conducting
its business, the breach or violation of which would, either
individually or in the aggregate, have a Warrantor Material
Adverse Effect;
(b) Has received no notification or communication from
any agency or department of federal, state or local government
(including the Federal Reserve, State Regulatory Commissioners
and other bank, insurance and securities regulatory authorities)
or the staff thereof (i) threatening to revoke any license,
franchise, permit or governmental authorization which is
material, either individually or in the aggregate, to the
financial condition, results of operations or, to the Warrantor
Companies' best knowledge, business prospects of the Warrantor
Companies on a consolidated basis or the ability of Warrantor to
consummate the transactions contemplated under this Agreement,
the Merger Agreement or the Stock Option Agreement, under the
terms hereof and thereof, or (ii) requiring any of the Warrantor
Companies (or any of their officers, directors or controlling
persons) to enter into a cease and desist order, agreement or
memorandum of understanding (or requiring the board of directors
thereof to adopt any resolution or policy); and
(c) Has complied in all material respects with the
Community Reinvestment Act ("CRA") and the rules and regulations
thereunder, and has a CRA rating of not less than "satisfactory".
5.11 EMPLOYEE BENEFIT PLANS.
(a) (i) Warrantor has delivered or made available to
the other Party, prior to the execution of this Agreement, copies
of each pension, retirement, profit sharing, supplemental or
excess retirement, stock option, stock purchase, savings,
employee stock ownership, restricted stock, phantom stock, stock
ownership, life insurance, disability, vacation pay, severance
pay (including, without limitation change of control or golden
parachute arrangements), incentive, deferred compensation, bonus
or benefit arrangement, health or hospitalization program, fringe
benefit or perquisite arrangement or other similar plan as in
effect on the date of this Agreement, including, without
limitation, any "employee benefit plan", as that term is defined
in Section 3(3) of ERISA, in respect of any of the present or
former directors, officers, employees or independent contractors
of, or dependents, spouses or other beneficiaries of any of such
directors, officers, employees or independent contractors of, any
of the Warrantor Companies (collectively, the "Warrantor Benefit
Plans"), and (ii) Central has delivered or made available to FCC,
prior to the execution of this Agreement, copies of each
employment or consulting agreement as in effect on the date of
this Agreement which provides any benefit or perquisites to or in
respect of any of the present or former directors or officers of,
or dependents, spouses or other beneficiaries of any of such
directors or officers of, any of the Central Companies, which
employment and consulting agreements are, with respect to
Central, included in the term "Warrantor Benefit Plans" as
defined above. Any of the Warrantor Benefit Plans which is an
"employee pension benefit plan," as that term is defined in
Section 3(2) of ERISA, is referred to herein as a "Warrantor
ERISA Plan". No Warrantor Company has participated in or been a
member of, and no Warrantor Benefit Plan is or has been, a
multiemployer plan within the meaning of Section 3(37) of ERISA.
Except as Previously Disclosed the Warrantor Benefit Plans of
Central and its Subsidiaries are terminable on their terms
without penalty or payment except for accrued and vested benefits
thereunder.
(b) All Warrantor Benefit Plans comply in all material
respects with the applicable provisions of ERISA and the Internal
Revenue Code, and any other applicable laws, rules and
regulations the breach or violation of which could result in a
liability, either individually or in the aggregate, material to
the financial condition, results of operations or prospects of
the Warrantor Companies on a consolidated basis. With respect to
the Warrantor Benefit Plans, no event has occurred and, to the
best knowledge of Warrantor's management, there exists no
condition or set of circumstances, in connection with which any
of the Warrantor Companies could be subject to any liability that
is reasonably likely to have, either individually or in the
aggregate, a Warrantor Material Adverse Effect (except liability
for benefit claims, Pension Benefit Guaranty Corporation
premiums, and funding obligations payable in the ordinary
course). No notice of a "reportable event," as that term is
defined in Section 4043 of ERISA, for which the 30-day reporting
requirement has not been waived has been required to be filed for
any Warrantor ERISA Plan which is subject to Title IV of ERISA
within the 12-month period ending on the date of this Agreement.
None of the Warrantor Companies has provided, or is required to
provide, security to any Warrantor ERISA Plan which is subject to
Title IV of ERISA pursuant to Section 401(a)(20) of the Internal
Revenue Code.
(c) Except as Previously Disclosed, no Warrantor ERISA
Plan which is subject to Title IV of ERISA has any "unfunded
current liability," as that term is defined in
Section 302(d)(8)(A) of ERISA, and the present fair market value
of the assets of each such plan exceeds the plan's "benefit
liabilities," as that term is defined in Section 4001(a)(16) of
ERISA, when determined under actuarial factors that would apply
if the plan terminated as of the date of this Agreement in
accordance with all applicable legal requirements.
5.12 MATERIAL CONTRACTS. Except as Previously Disclosed,
none of the Warrantor Companies, nor any of their respective
assets, businesses or operations, as of the date of this
Agreement, is a party to, or is bound or affected by, or receives
benefits under, any contract or agreement or amendment thereto
that in each case would be required to be filed as an exhibit to
a Form 10-K filed by Warrantor as of the date of this Agreement
that has not been filed as an exhibit to Warrantor's Form 10-K
filed for the fiscal year ended December 31, 1994.
5.13 MATERIAL CONTRACT DEFAULTS. None of the Warrantor
Companies is in default under any contract, agreement,
commitment, arrangement, lease, insurance policy or other
instrument to which it is a party, by which its respective
assets, business or operations may be bound or affected, or under
which it or its respective assets, business or operations
receives benefits, and which default is reasonably likely to
have, either individually or in the aggregate, a Warrantor
Material Adverse Effect, and there has not occurred any event
that, with the lapse of time or the giving of notice or both,
would constitute such a default.
5.14 LEGAL PROCEEDINGS. Except as Previously Disclosed,
there are no actions, suits or proceedings instituted or pending
or, to the best knowledge of Warrantor's management, threatened
against any of the Warrantor Companies, or affecting any
property, asset, interest or right of any of them, that are
reasonably expected to have, either individually or in the
aggregate, a Warrantor Material Adverse Effect.
5.15 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since
December 31, 1994, the Warrantor Companies, taken as a whole on a
consolidated basis, have not suffered any Material Adverse Change
(such term is defined in Section 6.3) or failed in any respect
that is likely to have a Warrantor Material Adverse Effect to
operate their business consistent with their past practices.
5.16 REPORTS. Since January 1, 1990, or, with respect to
each Warrantor Subsidiary, the date of its acquisition by
Warrantor if later than January 1, 1990, each of the Warrantor
Companies has filed all reports and statements, together with any
amendments required to be made with respect thereto, that it was
required to file with (i) the SEC, including, but not limited to,
Forms 10-K, Forms 10-Q, Forms 8-K and proxy statements, (ii) the
Federal Reserve, (iii) the OTS, (iv) the Office of the
Comptroller of the Currency, (v) the Federal Deposit Insurance
Corporation, and (vi) any applicable state banking, insurance,
securities or other regulatory authorities. As of their
respective dates (and without giving effect to any amendments or
modifications filed after the date of this Agreement with respect
to reports and documents filed before the date of this
Agreement), each of such reports and documents, including the
financial statements, exhibits and schedules thereto, complied in
all material respects with all of the statutes, rules and
regulations enforced or promulgated by the authority with which
they were filed and did not contain any untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements made therein in light of the
circumstances under which they were made not misleading.
5.17 STATEMENTS TRUE AND CORRECT. None of the information
supplied or to be supplied by Warrantor for inclusion in (i) the
Registration Statement to be filed by FCC with the SEC in
connection with the FCC Common Stock to be issued in the Merger,
(ii) the Joint Proxy Statement to be mailed to each Warrantor's
shareholders in connection with the Shareholders' Meetings, and
(iii) any other documents to be filed with the SEC or any other
Regulatory Authority in connection with the transactions
contemplated hereby, will, at the respective times such documents
are filed, and, in the case of the Registration Statement, when
it becomes effective and, with respect to the Joint Proxy
Statement, when first mailed to the shareholders of either Party,
be false or misleading with respect to any material fact, or omit
to state any material fact necessary in order to make the
statements therein not misleading, or, in the case of the Joint
Proxy Statement or any amendment thereof or supplement thereto,
at the time of the Shareholders' Meetings, be false or misleading
with respect to any material fact, or omit to state any material
fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading. All
documents that Warrantor is responsible for filing with the SEC
or any other Regulatory Authority in connection with the
transactions contemplated hereby, by the Merger Agreement or by
the Stock Option Agreement will comply in all material respects
with the provisions of applicable law including applicable
provisions of the Securities Laws.
5.18 ENVIRONMENTAL MATTERS.
(a) To the best knowledge of Warrantor's management,
Warrantor and each Warrantor Subsidiary (for purposes of this
Section 5.18, the term "Warrantor Subsidiary" shall include small
business investment corporations and entities that invest in
unaffiliated companies in the ordinary course of business in
which Warrantor owns or controls 5% or more of the outstanding
equity securities either directly or through an unbroken chain of
entities as to each of which 5% or more of the outstanding equity
securities is owned directly or indirectly by Warrantor), the
Participation Facilities, the Loan Properties and the Trust
Properties (each as defined below) are, and have been, in
compliance with all applicable laws, rules, regulations and
standards, and all requirements of the United States
Environmental Protection Agency ("EPA") and of state and local
agencies with jurisdiction over pollution or protection of health
or the environment, except for violations which, individually or
in the aggregate, do not or would not result in a Warrantor
Material Adverse Effect.
(b) To the best knowledge of Warrantor's management,
there is no suit, claim, action or proceeding, pending or
threatened, before any court, governmental agency, board or other
forum pursuant to which Warrantor or any of the Warrantor
Subsidiaries or any Loan Property, Participation Facility or
Trust Property (or in respect of such Loan Property,
Participation Facility or Trust Property) has been or, with
respect to threatened proceedings, may be named as a defendant
(i) for alleged noncompliance (including by any predecessor) with
any environmental law, rule or regulation or (ii) relating to the
release into the environment of any Hazardous Material (as
defined below) or oil, whether or not occurring at or on any site
owned (including as trustee), leased or operated by it or any of
its subsidiaries or any Loan Property, Participation Facility or
Trust Property, except where such noncompliance or release does
not or would not, individually or in the aggregate, result in a
Warrantor Material Adverse Effect.
(c) To the best knowledge of Warrantor's management,
there is no reasonable basis for any suit, claim, action or
proceeding of a type described in Section 5.18, except as would
not, individually or in the aggregate, have a Warrantor Material
Adverse Effect.
(d) During the period of (i) Warrantor's or any of the
Warrantor Subsidiaries' ownership (including as trustee) or
operation of any of their respective current properties,
(ii) Warrantor's or any of the Warrantor Subsidiaries'
participation in the management of any Participation Facility,
(iii) Warrantor's or any of the Warrantor Subsidiaries' holding
of a security interest in a Loan Property, or (iv) Warrantor or
any of the Warrantor Subsidiaries acting as a trustee or
fiduciary with respect to a Trust Property, to the best knowledge
of Warrantor's management, there has been no release of Hazardous
Material or oil in, on, under or affecting such property,
Participation Facility, Loan Property or Trust Property, except
where such release does not or would not result, individually or
in the aggregate, in a Warrantor Material Adverse Effect. Prior
to the period of (w) Warrantor's or any of the Warrantor
Subsidiaries' ownership (including as trustee) or operation of
any of their respective current properties, (x) Warrantor's or
any of the Warrantor Subsidiaries' participation in the
management of any Participation Facility, (y) Warrantor's or any
of the Warrantor Subsidiaries acting as trustee or other
fiduciary with respect to Trust Property, or (z) Warrantor's or
any of the Warrantor Subsidiaries' holding of a security interest
in a Loan Property, to the best knowledge of Warrantor's
management, there was no release of Hazardous Material or oil in,
on, under or affecting any such property, Participation Facility,
Loan Property or Trust Property, except where such release does
not or would not result, individually or in the aggregate, in a
Warrantor Material Adverse Effect.
(e) The following definitions apply for purposes of
this Section 5.18: (i) "Loan Property" means any property in
which Warrantor (or a Warrantor Subsidiary) holds a security
interest and, where required by the context, includes the owner
or operator of such property, but only with respect to such
property; (ii) "Participation Facility" means any property in
which Warrantor (or a Warrantor Subsidiary) participates in the
management of such property and, where required by the context,
includes the owner or operator of such property, but only with
respect of such property; (iii) "Trust Property" means any
property with respect to which Warrantor (or a Warrantor
Subsidiary) acts or has acted as a trustee or other fiduciary,
directly or indirectly, and includes any trust or similar legal
vehicle that owns or controls (or that owned or controlled) such
property and, where required by the context, includes the trustee
or other fiduciary, but only with respect to such property; and
(iv) "Hazardous Material" means any pollutant, contaminant or
hazardous substance within the meaning of the Comprehensive
Environmental Response, Compensation, and Liability Act,
42 U.S.C. Section 9601 et seq., or any similar federal, state or
local law.
5.19 KNOWLEDGE AS TO CONDITIONS. On the date of this
Agreement, Warrantor knows of no reason why the approvals,
authorizations, filings, registrations and notices contemplated
by Section 8.5 should not be obtained without the imposition of
any material and adverse condition or restriction or why the
accountants' letters referred to in Section 8.7 or the Tax
Opinion referred to in Section 7.3 cannot be obtained.
5.20 LABOR MATTERS. Neither Warrantor nor any of the
Warrantor Companies is a party to, or is bound by, any collective
bargaining agreement, contract or other agreement or
understanding with a labor union or labor organization, nor is
Warrantor or any of the Warrantor Companies the subject of any
proceeding asserting that Warrantor or any Warrantor Company has
committed an unfair labor practice or seeking to compel Warrantor
or any Warrantor Company to bargain with any labor union or labor
organization as to wages and conditions of employment, nor is
there any strike or other labor dispute involving Warrantor or
any of the Warrantor Companies pending or threatened.
5.21 FAIRNESS OPINIONS. Warrantor has delivered to the
other Party a copy of the opinion Warrantor has received from
Warrantor's financial advisor, dated within 5 days prior to the
date of this Agreement, to the effect that the terms of the
Merger are fair to Warrantor's shareholders from a financial
point of view.
SECTION VI.
COVENANTS AND AGREEMENTS
Each Party hereby covenants and agrees with the other Party
as follows:
6.1 CONDUCT OF BUSINESS -- NEGATIVE COVENANTS. From the
date of this Agreement until the earlier of the Effective Time or
until the termination of this Agreement, Central will not do, or
agree or commit to do, and will cause each of its Subsidiaries
not to do or agree to commit to do, any of the following without
the prior written consent of the chief executive officer or chief
administrative officer of FCC, which consent shall not be
unreasonably withheld or delayed:
(a) Except as Previously Disclosed or as expressly
contemplated by this Agreement, amend its articles of
incorporation or association or by-laws, or
(b) Impose, or suffer the imposition, on any share of
stock held by it or by one of its Subsidiaries, of any material
lien, charge or encumbrance, or permit any such lien, charge or
encumbrance to exist, or
(c) Except as expressly permitted in this Agreement or
in connection with (1) the use of Common Stock by optionees to
pay an option exercise price or to satisfy tax liabilities under
the various Central Stock Option Plans and (2) the repurchase of
Central Common Stock in accordance with the Stock Option
Agreement, repurchase, redeem, or otherwise acquire or exchange,
directly or indirectly, any shares of its capital stock or any
securities convertible into any shares of its capital stock, or
(d) Except as expressly contemplated by this Agreement
or as Previously Disclosed, acquire direct or indirect control
over any corporation, association, firm or organization, other
than in connection with (i) internal reorganizations or
consolidations involving existing Subsidiaries, (ii) good faith
foreclosures in the ordinary course of business,
(iii) acquisitions of control by a banking Subsidiary in a bona
fide fiduciary capacity, (iv) investments made by small business
investment corporations or by Subsidiaries that invest in
unaffiliated companies in the ordinary course of business, or
(v) the creation of new Subsidiaries organized to conduct or
continue activities otherwise permitted by this Agreement, or
(e) Except as Previously Disclosed, sell or otherwise
dispose of, or permit any of its Subsidiaries to sell or
otherwise dispose of: (i) any shares of capital stock of such
Party or any Subsidiary of such Party (unless any such shares of
stock are sold or otherwise transferred to such Party or any of
its Subsidiaries), (ii) any substantial part of the assets or
earning power of such Party or any Subsidiary of such Party, or
(iii) any asset other than in the ordinary course of business for
reasonable and adequate consideration, or
(f) Except as Previously Disclosed, incur, or permit
any of its Subsidiaries to incur, any additional material debt
obligation or other material obligation for borrowed money (other
than (i) in replacement of existing short-term debt with other
short-term debt, (ii) financing of banking related Subsidiary
activities consistent with past practices, (iii) indebtedness of
any of its Companies to another of its Companies or
(iv) indebtedness of any of its Companies to any of their
respective affiliates), except in the ordinary course of the
business of such Party and its Subsidiaries consistent with past
practices (and such ordinary course of business shall include,
but shall not be limited to, the creation of deposit liabilities,
purchases of federal funds, sales of certificates of deposit and
entry into repurchase agreements), or
(g) Except as contemplated by this Agreement, the
Merger Agreement or any of the agreements, documents or
instruments contemplated hereby or thereby, grant any general
increase in compensation or benefits to its employees or to its
officers, except in accordance with past practice or as required
by law; pay any bonus except in accordance with past practice or
the provisions of any applicable program or plan of the Central
Companies as in effect prior to the date of this Agreement and
which has been Previously Disclosed; enter into any severance
agreements with any of its directors or officers or the directors
or officers of any Subsidiary except as Previously Disclosed;
grant any increase in fees or other increases in compensation or
other benefits to any of its present or former directors; or
effect any change in retirement benefits for any class of its
employees or officers (unless such change is required by
applicable law or, in the opinion of counsel, is necessary or
advisable to maintain the tax qualification of any plan under
which the retirement benefits are provided) that would materially
increase the retirement benefit liabilities of the Central
Companies on a consolidated basis, or
(h) Except as contemplated by this Agreement, the
Merger Agreement or any of the agreements, documents or
instruments contemplated hereby or thereby, or except as
Previously Disclosed, amend any existing employment contract
between such Party or any Subsidiary thereof and any person
having a salary thereunder in excess of $50,000 per year (unless
such amendment is required by law) to increase the compensation
or benefits payable thereunder or extend the term thereof or
enter into any new employment contract with any person having a
salary thereunder in excess of $50,000 that such Party or its
applicable Subsidiary does not have the unconditional right to
terminate without liability (other than liability for services
already rendered), at any time on or after the Effective Time, or
(i) Except as contemplated by this Agreement, the
Merger Agreement or any of the agreements, documents or
instruments contemplated hereby or thereby, adopt any new
employee benefit plan of Central or any Central Subsidiary or
make any material change in or to any existing employee benefit
plan of such Party or any Subsidiary thereof other than (i) as
Previously Disclosed or (ii) any such change that is required by
law or that, in the opinion of counsel, is necessary or advisable
to maintain the tax qualified status of any such plan.
6.2 CONDUCT OF BUSINESS -- AFFIRMATIVE COVENANTS. Unless
the prior written consent of the other Party shall have been
obtained, except as otherwise contemplated or permitted hereby or
Previously Disclosed, each Party shall and shall cause its
Subsidiaries: to operate its business only in the ordinary course
of business of such Party and its Subsidiaries consistent with
past practices, to preserve intact its business organizations and
assets and maintain its rights and franchises, and to take no
action which would (i) adversely affect the ability of any of
them to obtain any necessary approvals of Regulatory Authorities
required for the transactions contemplated hereby without
imposition of a condition or restriction of the type referred to
in the second sentence of Section 8.5 of this Agreement,
(ii) adversely affect the ability of such Party to perform its
obligations under this Agreement, the Merger Agreement and Stock
Option Agreement, or (iii) cause or permit a breach of any of its
covenants or cause or permit any representation or warranty of it
to become untrue in any material respect, as if each such
representation and warranty were continuously made from the date
hereof.
6.3 ADVERSE CHANGES IN CONDITION. Each Party shall give
written notice promptly to the other Party concerning (i) any
material adverse change in the condition (financial or
otherwise), results of operations or business prospects of such
Party and its Subsidiaries, taken as a whole on a consolidated
basis ("Material Adverse Change"), or (ii) the occurrence or
impending occurrence of any event or circumstance known to such
Party which would cause or constitute a material breach of any of
the representations, warranties or covenants of such Party
contained herein or that would reasonably be expected to
materially and adversely affect the timely consummation of the
transactions contemplated hereby or under the Merger Agreement or
Stock Option Agreement. Each Party shall use its best efforts to
prevent or to promptly remedy the same.
6.4 INVESTIGATION AND CONFIDENTIALITY. Prior to the
Effective Time, each Party will keep the other Party promptly
advised of all material developments relevant to its business and
to the consummation of the Merger and may make or cause to be
made such investigation, if any, of the business, properties,
operations and financial and legal condition of the other Party
and its Subsidiaries as such Party reasonably deems necessary or
advisable to familiarize itself and its advisors with such
business, properties, operations and condition, provided that
such investigation shall be reasonably related to the
transactions contemplated hereby and shall not interfere
unnecessarily with normal operations. Each Party agrees to
furnish the other Party and the other Party's respective advisors
with such financial and operating data and other information with
respect to its business, properties and employees as the other
Party shall from time to time reasonably request. No
investigation by one Party shall affect the representations and
warranties of the other Party and, subject to Section 9.3 of
this Agreement, each such representation and warranty shall
survive any such investigation. Each Party shall maintain the
confidentiality of all confidential information furnished to it
by the other Party in accordance with the terms of the
confidentiality agreement dated May 15, 1995, between the Parties
(the "Confidentiality Agreement").
6.5 REPORTS. Each Party shall file all reports required to
be filed by it with the SEC and the Federal Reserve between the
date of this Agreement and the Effective Time and shall deliver
to the other Party copies of all such reports promptly after the
same are filed. Each Party shall cause each of its Subsidiaries
that is a depository institution to file all reports required to
be filed with the Federal Deposit Insurance Corporation, the
Office of the Comptroller of the Currency, the Federal Reserve,
the OTS and any applicable State Regulatory Commissioner.
6.6 DIVIDENDS.
(a) From the date of this Agreement to the earlier of
the Effective Time or the termination of this Agreement, Central
will not declare or pay any dividend or other distribution to its
shareholders except regular quarterly cash dividends on the
shares of Central Common Stock, at a rate not in excess of the
regular quarterly cash dividend most recently declared by Central
prior to the date of this Agreement.
(b) From the date of this Agreement to the earlier of
the Effective Time or the termination of this Agreement, no Party
shall, without the prior written consent of the other Party, make
any changes in its dividend record or payment dates, except as
required to comply with paragraph (c) below.
(c) The Parties shall coordinate with one another as to
the declaration and payment of cash dividends on the shares of
FCC Common Stock and Central Common Stock to be declared in 1995
and 1996 so as to ensure that FCC and Central have declared, with
the record dates prior to the Effective Time, the same number of
quarterly dividends from January 1, 1995 through the Effective
Time.
6.7 CAPITAL STOCK. Except for or as otherwise permitted in
or contemplated by this Agreement, the Merger Agreement or the
Stock Option Agreement, or as Previously Disclosed, without the
prior written consent of FCC, from the date of this Agreement to
the earlier of the Effective Time or the termination of this
Agreement, Central shall not, and shall not enter into any
agreement to, issue, sell, or otherwise permit to become
outstanding any additional shares of Central Common Stock or any
other capital stock of Central, or any stock appreciation rights,
or any option, warrant, conversion or other right to acquire any
such stock, or any security convertible into any such stock.
6.8 AGREEMENT OF AFFILIATES. Central shall deliver to FCC,
no later than 30 days after the date of this Agreement, a letter
identifying each person whom it reasonably believes is an
"affiliate" of Central for purposes of Rule 145 under the
1933 Act. Thereafter and until the date on which the Merger is
approved by the Federal Reserve, Central shall identify to FCC
each additional person whom Central reasonably believes to have
thereafter become an "affiliate". Central shall use its best
efforts to cause each person who is identified as an "affiliate"
of such Party pursuant to the two immediately preceding sentences
to deliver to FCC, not later than the date on which the Merger is
approved by the Federal Reserve, a written agreement,
substantially in the form of Exhibit VI.
6.9 CERTAIN ACTIONS. Neither Central nor any of its
Subsidiaries shall (except as may, in the written opinion of its
counsel promptly delivered to the other Party, be required by
fiduciary duty) solicit, initiate, participate in discussions of,
or encourage or take any other action to facilitate (including by
way of the disclosing or furnishing of any information that it is
not legally obligated to disclose or furnish) any inquiry or the
making of any proposal relating to an Acquisition Transaction or
a potential Acquisition Transaction involving such Party or any
of its Subsidiaries (and, if any information is furnished, it
will be furnished only under a confidentiality agreement
containing substantially the same provisions as the
Confidentiality Agreement referred to in Section 6.4). Central
shall immediately instruct and otherwise use its best efforts to
cause its directors, officers, employees, agents, advisors
(including, without limitation, any investment banker, attorney
or accountant retained by it or any of its Subsidiaries),
consultants and other representatives to comply with the
provisions of this Section 6.9. Central will immediately cease
and cause to be terminated any existing activities, discussions
or negotiations with any parties conducted heretofore with
respect to any such activities. Except as may, in the written
opinion of its counsel promptly delivered to the other Party, be
required by fiduciary duty, Central shall not negotiate with
respect to any such proposal, nor shall it reach any agreement or
understanding (formal or informal, written or otherwise) with
respect to any such proposal. Central shall promptly notify FCC
orally and in writing in the event it receives any such inquiry
or proposal. This Section 6.9 shall not prohibit accurate
disclosure by a Party in any SEC Document (including the Joint
Proxy Statement and the Registration Statement) or other
disclosure to the extent required by the Securities Laws or other
applicable law if in the opinion of the Board of Directors of
such Party (as of the date of such SEC Document or other
disclosure) disclosure is required under applicable law as to
transactions contemplated hereby.
6.10 AGREEMENT AS TO EFFORTS TO CONSUMMATE. Subject to the
terms and conditions of this Agreement and its fiduciary duties
under applicable law, each of the Parties agrees to use its best
efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, all things, necessary, proper or advisable
under applicable laws and regulations to consummate and make
effective, as soon as practicable after the date of this
Agreement, the transactions contemplated by this Agreement,
including, without limitation, using its best efforts to lift or
rescind any injunction or restraining order or other order
adversely affecting the ability of the Parties to consummate the
transactions contemplated hereby. Each of the Parties shall use,
and shall cause each of its Subsidiaries to use, its best efforts
to obtain consents of all third parties and governmental bodies
necessary or desirable for the consummation of the transactions
contemplated by this Agreement. This section shall not require
either Party to waive any condition to such Party's obligation to
consummate the Merger.
6.11 OPERATING FUNCTIONS. The Central Companies will
cooperate with FCC in connection with planning for the efficient
and orderly combination of the parties and the operation of
Central Bank after the Merger, and in the consolidation of
appropriate operating functions to be effective on the Effective
Date, provided that this covenant shall not require any action
that, in the opinion of Central's Board, would adversely affect
the operations of any Central Company if the Merger were not
consummated.
6.12 ISSUANCE OF FCC STOCK. FCC shall, prior to the
Closing, take such action as is required to permit the issuance
of the FCC Common Stock issuable to the shareholders of Central
pursuant to the Merger, and to permit such stock to be approved
for listing and quotation on the NASDAQ Stock Market.
6.13 INSIDER COMMITMENTS. Central has delivered to FCC on
the date of this Agreement Insider's Commitments in the form of
Exhibit VII from the directors and executive officers of Central
and from each person who owns as much as 5% of the outstanding
shares of Central Common Stock.
6.14 MATERIAL ADVERSE EFFECT AND CHANGE. In determining
whether there has occurred with respect to FCC a Material Adverse
Change or whether any circumstance has had a Warrantor Material
Adverse Effect with respect to FCC, unrealized securities losses
shall be ignored, and realized securities losses shall be ignored
except to the extent such realized securities losses (A) cause
FCC to have (i) a Tier I capital ratio (as defined in Appendix A
to 12 C.F.R. 225) of less than 6%, or (ii) a leverage-based
capital ratio (as defined in Appendix B to 12 C.F.R. 225) of less
than 5%; or (B) result in an enforcement action against FCC by a
federal Regulatory Authority.
6.15 P&A AGREEMENT. FCC and Central agree to use their best
efforts to cause their respective subsidiaries, Rapides Bank &
Trust Company in Alexandria ("RBT") and Central Bank, (i) to
enter into a purchase and assumption agreement pursuant to which
specified assets and liabilities of Central Bank that are
associated with the trade area of RBT will be transferred to RBT
at the Effective Time or as soon as practicable thereafter
(provided that such transfer shall be conditioned upon and shall
not occur sooner than the occurrence of the Merger), and (ii) to
apply expeditiously for and diligently pursue regulatory approval
of such agreement. The consummation of the Merger is not
conditioned upon the consummation of such agreement
SECTION VII.
ADDITIONAL AGREEMENTS
7.1 REGISTRATION STATEMENT; SHAREHOLDER APPROVAL. The
Parties shall cooperate in the preparation of the Registration
Statement. FCC shall, as soon as practicable, file the
Registration Statement with the SEC, and the Parties shall use
their best efforts to cause the Registration Statement to become
effective under the 1933 Act. FCC will take, and Central will
cooperate with it in connection with, any action required to be
taken under the applicable state Blue Sky or securities laws in
connection with the issuance of shares of FCC Common Stock upon
consummation of the Merger. Each party shall furnish all
information concerning it and the holders of its capital stock as
the other Party may reasonably request in connection with such
action. FCC and Central shall each call a Shareholders' Meeting
to be held as soon as reasonably practicable after the date of
this Agreement for the purpose of voting upon the Merger. In
connection with the Shareholders' Meetings, (i) FCC and Central
shall prepare and file a Joint Proxy Statement with the SEC and
mail it to their shareholders, (ii) each Party shall furnish to
the other Party all information concerning it that the other
Party may reasonably request in connection with such Joint Proxy
Statement, (iii) the Board of Directors of FCC and Central shall
recommend to their respective shareholders the approval of this
Agreement and the Merger Agreement, provided, however, that such
recommendation may be withdrawn, modified or amended by the Board
of Directors of a Party after the receipt by such Party of an
offer to effect an Acquisition Transaction with such Party to the
extent the Board of Directors of such Party reasonably determines
that, in the exercise of its fiduciary obligations, it is
required to do so; provided, further, that such determination
must be based on a written opinion of counsel promptly delivered
to the other Party, and (iv) FCC and Central shall otherwise use
their best efforts to obtain such shareholders' approval, subject
to their respective fiduciary duties under applicable law. This
Section 7.1 shall not prohibit accurate disclosure by a Party in
any SEC Document (including the Joint Proxy Statement and the
Registration Statement) and other disclosure to the extent
required by the Securities Laws or other applicable law if in the
opinion of the Board of Directors of such party (as of the date
of such SEC Document or other disclosure) disclosure is required
as to transactions contemplated hereby or as to any proposal for
an Acquisition Transaction. The Parties shall use all reasonable
efforts to hold the Shareholders' Meetings on the same date or
otherwise as close together as may be practicable.
7.2 FILINGS WITH THE STATE OFFICES. Promptly following, or
contemporaneous with, the Closing, the Parties will cause the
Merger Agreement to be filed with the Secretary of State of
Louisiana, and will cause to be made all such other filing as are
required by the BCL.
7.3 TAX OPINION. The Parties agree to use their reasonable
efforts to obtain a written opinion of Arthur Andersen LLP,
addressed to the Parties and reasonably satisfactory to their
respective counsel, dated the date of the Closing, subject to the
customary representations and assumptions, and substantially to
the effect that (a) the Merger will constitute a tax-free
reorganization within the meaning of Section 368(a)(1)(A) of the
Internal Revenue Code and FCC and Central will each be a party to
the reorganization, (b) the exchange in the Merger of Central
Common Stock for FCC Common Stock will not give rise to income,
gain or loss to FCC and Central, or shareholders of Central with
respect to such exchange (except to the extent of any cash paid
in lieu of fractional shares), (c) the adjusted tax basis of the
FCC Common Stock received by shareholders of Central who exchange
all of their Central Common Stock in the Merger will be the same
as the adjusted tax basis of the shares of Central Common Stock
surrendered in exchange therefor (reduced by any amount allocable
to a fractional share for which cash is received) and (d) the
holding period of the shares of FCC Common Stock received in the
Merger will include the period during which the shares of Central
Common Stock surrendered in exchange therefor were held, provided
such shares of Central Common Stock were held as capital assets
at the Effective Time.
7.4 ACCOUNTING TREATMENT. No Party will take, cause or to
the best of its ability permit to be taken any action that would
adversely affect the qualification of the Merger for pooling of
interests accounting treatment; provided that nothing herein
shall preclude any Party from exercising its rights under the
Stock Option Agreement.
7.5 PRESS RELEASES. Prior to the Effective Time, the
Parties shall give when practicable prior notice to each other as
to the form and substance of any press release or other public
disclosure materially related to this Agreement or any other
transaction contemplated hereby; provided, however, that nothing
in this Section 7.5 shall be deemed to prohibit a Party from
making any disclosure which its counsel deems necessary in order
to satisfy such Party's disclosure obligations imposed by law.
7.6 APPLICATIONS. The parties shall prepare and file
applications with the Federal Reserve, the State Regulatory
Commissioners and any other appropriate governmental authorities
seeking the approvals necessary to consummate the transactions
contemplated by this Agreement. The Parties shall provide copies
of all such filings to each other within five business days after
such filings are made and shall promptly inform each other of all
substantive regulatory contacts concerning the transactions
contemplated by this Agreement.
SECTION VIII.
CONDITIONS PRECEDENT TO
OBLIGATIONS TO CONSUMMATE
The obligation of each Party to consummate the Merger is
subject to the satisfaction of each of the following conditions,
unless waived by such Party pursuant to Section 10.5 of this
Agreement:
8.1 REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the other Party set forth or referred to in
this Agreement shall be true and correct in all material respects
as of the date of this Agreement and as of the time of the
Closing with the same effect as though all such representations
and warranties had been made on and as of the time of the
Closing, except (i) for any such representations and warranties
made as of a specified date, which shall be true and correct in
all material respects as of such date, (ii) as expressly
contemplated or permitted by this Agreement, or (iii) to the
extent that the facts constituting any untruth or incorrectness
in such representations and warranties as of the time of the
Closing do not reflect a Material Adverse Change from that
represented and warranted by such other Party, provided, however,
that the exception in this clause (iii) shall not apply to
(A) the requirement that representations and warranties be true
and correct in all material respects as of the date of this
Agreement, or (B) the representations and warranties in
Sections 5.1, 5.2 and 5.4, which representations and warranties
must be true and correct as of the time of the Closing.
8.2 PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all
of the agreements and covenants of the other Party to be
performed and complied with pursuant to this Agreement and the
other agreements contemplated hereby prior to the time of the
Closing shall have been duly performed and complied with by it in
all material respects.
8.3 CERTIFICATES. Each of the Parties shall have delivered
to the other Party a certificate, dated as of the time of the
Closing and signed on its behalf by its chief executive officer
and its chief financial officer, to the effect that the
conditions of its obligations set forth in Section 8.1 and
Section 8.2 of this Agreement with respect to it have been
satisfied, all in such reasonable detail as the other Party shall
request.
8.4 SHAREHOLDER APPROVALS. The shareholders of each Party
shall have approved this Agreement, the Merger Agreement, the
Merger and the consummation of the transactions contemplated
hereby and thereby, as and to the extent required by law and by
the provisions of any governing instruments, and each Party shall
have furnished to the other certified copies of resolutions duly
adopted by such Party's shareholders evidencing the same. In
addition, the holders of the requisite percentage of shares of
FCC Common Stock and Central Common Stock sufficient, either
alone or in combination with other factors, to preclude
accounting for the Merger as a pooling of interests shall not
have perfected dissenters' rights under applicable law with
respect to the adoption of this Agreement and the Merger
Agreement.
8.5 CONSENTS AND APPROVALS. All material approvals and
authorizations of, filings and registrations with, and
notifications to, all Regulatory Authorities required for
consummation of the Merger and for the prevention of any
termination of any material right, privilege, license or
agreement of any Party or any of its Subsidiaries shall have been
obtained or made and shall be in full force and effect and all
waiting periods required by law shall have expired. Any approval
obtained from any Regulatory Authority which is necessary to
consummate the transactions contemplated hereby shall not be
conditioned or restricted in a manner which in the reasonable
judgment of the Board of Directors of either of the Parties so
materially and adversely affects the economic or business
assumptions of the transactions contemplated by this Agreement so
as to render inadvisable the consummation of the Merger. To the
extent that any lease, license, loan or financing agreement or
other contract or agreement to which any Party or any of its
Subsidiaries, as the case may be, is a party requires the consent
of or waiver from the other party thereto as a result of the
transactions contemplated by this Agreement, such consent or
waiver shall have been obtained, unless the failure to obtain
such consent or waiver would not, following the Merger, have a
material adverse effect on the consolidated financial condition,
results of operations or, to the best of such Party's knowledge,
business prospects of such Party and its Subsidiaries on a
consolidated basis from that reflected on the December 31, 1994
financial statements included in the Financial Statements.
8.6 LEGAL PROCEEDINGS. No Party shall be subject to any
order, decree or injunction of a court or agency of competent
jurisdiction which enjoins or prohibits consummation of any of
the transactions contemplated by this Agreement.
8.7 ACCOUNTANTS' LETTERS. Each Party shall have received
"comfort" letters from the other Party's independent public
accountants dated, respectively, within three days prior to the
mailing of the Joint Proxy Statement and the Closing Date, in
form and substance as are usual and customary for comfort letters
of this type.
8.8 TAX MATTERS. Each Party shall have received the tax
opinion addressed to it referred to in Section 7.3 of this
Agreement.
8.9 REGISTRATION STATEMENT. The Registration Statement
shall be effective under the 1933 Act and no stop orders
suspending the effectiveness of the Registration Statement shall
be in effect and no proceedings for such purpose shall be pending
before or threatened by the SEC.
8.10 SIMULTANEOUS TRANSACTIONS. The Closing shall have
occurred and the other Party shall have executed all documents
and taken all such other action as is necessary to effectuate the
Merger other than filing the Merger Agreement as referred to in
Section 7.2, and each Party shall have irrevocably authorized its
agents to make such filing in its behalf.
8.11 LEGAL OPINIONS. Each Party shall have received an
opinion, substantially in the form of Exhibit VIII-A or VIII-B
annexed hereto, as applicable, from counsel for the other Party.
8.12 POOLING OF INTERESTS. Neither the independent public
accountants of either Party, nor the SEC, shall have taken the
position that the Merger does not qualify for pooling-of-
interests accounting treatment under GAAP.
8.13 EMPLOYMENT CONTRACTS. The employment contracts
referred to in Section 4.2(b) shall have been entered into
(provided that any failure by any of the employees so to do shall
be a condition solely as to FCC).
SECTION IX.
TERMINATION
9.1 TERMINATION. Notwithstanding any other provision of
this Agreement or the Merger Agreement and notwithstanding the
approval of this Agreement and the Merger Agreement by the
shareholders of the Parties, as applicable, this Agreement and
the Merger Agreement may be terminated and the Merger abandoned
at any time prior to the Closing:
(a) By mutual consent of the Boards of Directors of FCC
and Central; or
(b) By the Board of Directors of a Party in the event
of a material breach by the other Party of any representation,
warranty, covenant or agreement of such other Party contained
herein which would result in the failure to satisfy the closing
condition set forth in Section 8.1 or 8.2 of this Agreement,
which breach cannot be or has not been cured within 30 days after
the giving of a written notice to the breaching Party of such
material breach; or
(c) By the Board of Directors of either Party in the
event that the Merger shall not have been consummated by June 30,
1996; or
(d) By the Board of Directors of either Party in the
event (i) any approval of any governmental or other Regulatory
Authority required for consummation of the Merger and the other
transactions contemplated hereby shall have been denied by final
non-appealable action of such authority or if any such action
taken by such authority is not appealed within the time limit for
appeal or (ii) if the shareholders of FCC or Central fail to have
approved this Agreement, the Merger Agreement and the Merger, as
applicable, and the consummation of the transactions contemplated
hereby and thereby, as applicable, at the Shareholders' Meetings
to the extent required by law and by the provisions of any
governing instruments; or
(e) By the Board of Directors of a Party in the event
that any of the conditions precedent to the obligations of such
Party to consummate the Merger cannot be satisfied or fulfilled
on or before June 30, 1996 (other than by reason of a breach by
the Party seeking to terminate); or
(f) By the Board of Directors of a Party in the event
of the acquisition, by any person or group of persons, of
beneficial ownership of 25% or more of the outstanding shares of
Common Stock of the other Party (the terms "person", "group" and
"beneficial ownership" having the meanings assigned thereto in
Section 13(d) of the 1934 Act and the regulations promulgated
thereunder); or
(g) By the Board of Directors of FCC if the Board of
Directors of Central shall or shall have resolved to withdraw,
modify or change its recommendation to Central's shareholders of
this Agreement, the Merger Agreement or the Merger, or recommend
any Acquisition Transaction other than the Merger; or
(h) By the Board of Directors of a Party (the "Terminating
Party"), if such Party has determined in its discretion (but in
good faith) (i) that, based on its due diligence investigation of
the other Party (the "Other Party"), including (without
limitation) its review of the matters that have been Previously
Disclosed by the Other Party, (A) the representations and
warranties of such Other Party in this Agreement were not true
and correct in all material respects on the date of this
Agreement, and/or (B) there is a material possibility that a
Material Adverse Change may in the future occur with respect to
such Other Party or that the Terminating Party will not achieve
from the transactions contemplated by this Agreement the
expectations that lead it to enter into this Agreement, and
(ii) that, had the Terminating Party known, prior to the date of
this Agreement, of such untruth, incorrectness and/or material
possibility, it would not have entered into this Agreement;
provided, that termination pursuant to this Section 9.1(h) may be
declared only by notice of termination given by the Terminating
Party to the Other Party during the period ("Notice Period") of
30 days following the date on which the Other Party first offers,
by letter delivered in accordance with Section 10.7 of this
Agreement, to make access to the Other Party available to the
Terminating Party for the latter's due diligence purposes. Any
notice of termination shall certify to the determinations set
forth in clauses (i) and (ii) above. A notice of termination
given in accordance with Section 9.1(h) shall become effective on
the 10th day after it is given unless prior to that time the
Other Party requests the Terminating Party to provide the details
supporting the determination referred to in clause (i), in which
event (A) the Terminating Party will supply such details by the
15th day after such request, (B) the Terminating Party will,
during the succeeding 10-day period, discuss its findings with
the Other Party on request by the Other Party, and (C) the notice
of termination shall become effective at the end of such 10-day
period unless by then withdrawn by the Terminating Party by a
written notice of withdrawal; or
(i) By the Board of Directors of Central if there has
occurred any conversion of FCC Common Stock into or exchange of
FCC Common Stock for the securities of any other issuer, provided
that the right of termination in accordance with this
Section 9.1(i) shall itself terminate on the 30th day following
the date on which FCC provides written notice to Central of any
such conversation or exchange; or
(j) By the Board of Directors of a Party if an action
or failure to act by the other Party results in a Material
Adverse Change, as defined in Section 6.3 of this Agreement, with
respect to such other Party which is not remedied or cured within
30 days after notice of intention to terminate is given by the
Party invoking this Section 9.1(j), which notice shall specify
the action or failure to act that is the basis of such intention;
provided that the right to terminate with respect to the action
or failure to act that is specified in such notice of intention
shall itself terminate unless notice of termination is given by
such Party within 15 days following the end of such remedial or
curative period; or
(k) By the Board of Directors of Central if Central
Option Shares shall have been issued pursuant to any exercise of
the Stock Option Agreement and, at the time scheduled for
Closing, all or any portion of such Central Option Shares would
not be cancelled in accordance with Section 2.3(b) by virtue of
the Merger.
9.2 EFFECT OF TERMINATION. In the event of the termination
and abandonment of this Agreement and the Merger Agreement
pursuant to Section 9.1 of this Agreement, this Agreement and the
Merger Agreement shall become void and have no effect and the
Parties will be relieved of all obligations and liabilities under
this Agreement and the Merger Agreement, except that (i) the
provisions of the last sentence of Section 6.4, Section 7.5, and
Section X of this Agreement shall survive any such termination
and abandonment, (ii) the Stock Option Agreement shall be
governed by its own terms as to termination, (iii) a termination
pursuant to Section 9.1(b) or 9.1(e) or 9.1(g) of this Agreement
shall not relieve a breaching Party from liability for any breach
giving rise to such termination and (iv) the Parties shall remain
obligated under, and liable for any breach of, any of the
provisions of this Agreement that survive its termination.
9.3 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
The respective representations, warranties, obligations,
covenants and agreements of the Parties shall not survive the
Effective Time except for (i) this Section 9.3, Section 2.3 and
Section IV of this Agreement and (ii) the Merger Agreement,
provided that no such representations, warranties or covenants
shall be deemed to be terminated or extinguished so as to deprive
any Party (or any director, officer or controlling person
thereof) of any defense in law or equity which otherwise would be
available against the claims of any person, including, without
limitation, any shareholder or former shareholder of any Party,
the aforesaid representations, warranties and covenants being
material inducements to consummation by the Parties of the
transactions contemplated hereby.
SECTION X.
MISCELLANEOUS
10.1 EXPENSES.
(a) Except as provided in Section 2.3(a) and
Section 10.1(b) of this Agreement, each of the Parties shall bear
and pay all costs and expenses incurred by it or on its behalf in
connection with the transactions contemplated hereunder,
including fees and expenses of its own financial or other
consultants, investment bankers, accountants and counsel.
(b) Notwithstanding the foregoing, a Party (the
"Expense Paying Party") shall pay all of the costs and expenses
incurred by the other Party (the "Reimbursed Party") (without
duplication pursuant to this Agreement or any other agreement or
instrument) in connection with this Agreement and the
transactions contemplated hereunder, including fees and expenses
of such Reimbursed Party's financial or other consultants,
investment bankers, accountants and counsel, if:
(i) (a) this Agreement is terminated pursuant to
Section 9.1(b) by reason of a material breach by the Expense
Paying Party, (b) the Reimbursed Party was the Party who
terminated it, and (c) the Expense Paying Party is at the time of
the termination not also entitled to terminate this Agreement
pursuant to Section 9.1(b) by reason of a material breach of the
Reimbursed Party; or
(ii) a Purchase Event occurs with respect to the
Stock Option Agreement if Central is the Expense Paying Party and
the Merger has not been, or thereafter is not, consummated for
any reason other than a termination pursuant to Section 9.1(b)
because of a material breach by the Reimbursed Party.
Nothing contained in this Section 10.1(b) shall constitute
or shall be deemed to constitute liquidated damages for the
breach by a Party of the terms of this Agreement or otherwise
limit the rights of the nonbreaching Party.
(c) Final settlement with respect to payment of fees
and expenses by the Parties pursuant to Section 10.1 of this
Agreement shall be made within 30 days of the termination of this
Agreement and the Merger Agreement. If more than one Party is
responsible as an Expense Paying Party, then the costs and
expenses which the Expense Paying Parties are obligated to pay
shall be equally shared between them, regardless of whether their
relative degree of fault is or is not equal.
10.2 BROKERS AND FINDERS. Except as Previously Disclosed,
each of the Parties represents and warrants that neither it nor
any of its officers, directors, employees, affiliates or
Subsidiaries has employed any broker or finder or incurred any
liability for any financial advisory fees, investment bankers'
fees, brokerage fees, commissions or finders' fees in connection
with this Agreement or the transactions contemplated hereby. In
the event of a claim by any broker or finder based upon its
representing or being retained by or allegedly representing or
being retained by any Party, such Party agrees to indemnify and
hold the other Party harmless of and from such claim.
10.3 ENTIRE AGREEMENT. Except as otherwise expressly
provided herein, this Agreement, the Merger Agreement, the Stock
Option Agreement and the Confidentiality Agreement contain the
entire agreement among the Parties with respect to the
transactions contemplated hereunder and thereunder, and such
agreements supersede all prior arrangements or understanding with
respect thereto, written or oral. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon
the Parties and their respective successors. Nothing in this
Agreement, expressed or implied, is intended to confer upon any
party, other than the Parties or their respective successors, any
rights, remedies, obligations or liabilities under or by reason
of this Agreement except for the rights of shareholders of
Central to receive the merger consideration following the
Effective Time and except as otherwise may be provided in
Section IV.
10.4 AMENDMENTS. To the extent permitted by law, this
Agreement or the Merger Agreement may be amended by a subsequent
writing signed by each of the Parties upon the approval of the
Boards of Directors of such Parties; provided, however, that the
provisions of this Agreement and the Merger Agreement relating to
the manner or basis in which shares of Central Common Stock will
be exchanged for FCC Common Stock shall not be amended after the
Shareholders' Meetings without the requisite approval of the
holders of the issued and outstanding shares of FCC Common Stock
and Central Common Stock entitled to vote thereon. The Parties
may, without approval of their respective Boards of Directors,
make such technical changes to this Agreement or the Merger
Agreement, not inconsistent with the purposes hereof and thereof,
as may be required to effect or facilitate any governmental
approval or acceptance of the Merger or of this Agreement or the
Merger Agreement or to effect or facilitate any filing or
recording required for the consummation of any of the
transactions contemplated hereby or thereby.
10.5 WAIVERS. Prior to or at the Effective Time, each
Party, acting through its Board of Directors or chief executive
officer or other authorized officer, shall, as to such Party's
rights hereunder, have the right (i) to waive any default in the
performance of any term of this Agreement by the other Party,
(ii) to waive or extend the time for the compliance or
fulfillment by the other Party of any and all of its obligations
under this Agreement, and (iii) to waive any or all of the
conditions precedent to the obligations of such Party under this
Agreement.
10.6 NO ASSIGNMENT. Neither of the Parties may assign any
of its rights or obligations under this Agreement or the Merger
Agreement to any other persons, and any such purported assignment
shall be deemed null and void.
10.7 NOTICES. All notices or other communications which are
required or permitted hereunder shall be in writing and
sufficient if delivered by hand, by facsimile transmission or by
registered or certified mail, postage pre-paid, to the persons at
the addresses set forth below (or at such other address as may be
provided hereunder), and shall be deemed to have been delivered
as of the date so delivered:
If to FCC:
First Commerce Corporation
210 Baronne Street
New Orleans, LA 70112
Attention: Ian Arnof
With a copy to:
Correro, Fishman & Casteix, L.L.P.
201 St. Charles Avenue, 47th Floor
New Orleans, LA 70170-4700
Attention: Louis Y. Fishman
If to Central:
Central Corporation
300 DeSiard Street
Monroe, LA 71201-4928
Attention: James A. Altick
With a copy to:
Mayer, Brown & Platt
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006-1882
Attention: Brian W. Smith
10.8 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Louisiana
without regard to the conflict of laws principles thereof.
10.9 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall constitute one and the
same instrument.
10.10CAPTIONS. The captions contained in this Agreement are
for reference purposes only and are not part of this Agreement.
IN WITNESS WHEREOF, each of the Parties has caused this
Agreement to be executed on its behalf and attested by officers
thereunto duly authorized all as of the day and year first above
written.
FIRST COMMERCE CORPORATION
ATTEST:
By: ____________________________________
_____________________________
Secretary
CENTRAL CORPORATION
ATTEST: By: ____________________________________
_____________________________
Secretary
Exhibit I
JOINT AGREEMENT OF MERGER
OF
CENTRAL CORPORATION
WITH AND INTO
FIRST COMMERCE CORPORATION
This Joint Agreement of Merger (this "Joint Agreement") is
dated as of the 15th day of May, 1995, between Central
Corporation, a Louisiana corporation ("Central"), and First
Commerce Corporation, a Louisiana corporation ("FCC"); and is
entered into pursuant to the provisions of Sections 111 et seq.
of the Louisiana Business Corporation Law ("LBCL").
WHEREAS, as required by law, at least a majority of the
members of the respective Boards of Directors of Central and FCC
(collectively, the "Merging Corporations") deem it advisable that
Central be merged with and into FCC (the "Merger"), as provided
in this Joint Agreement and in the Agreement and Plan of Merger
dated as of May 15, 1995 (the "Plan"), among Central and FCC,
which sets forth, among other things, certain representations,
warranties, covenants and conditions relating to the Merger; and
WHEREAS, as required by law, at least a majority of the
members of the respective Boards of Directors of the Merging
Corporations wish to enter into this Joint Agreement and submit
it to the shareholders of Central and FCC for approval in the
manner required by law and, subject to such approval and to such
other approvals as may be required, to effect the Merger, all in
accordance with the provisions of this Joint Agreement.
NOW THEREFORE, in consideration of the mutual benefits to be
derived from this Joint Agreement and the Merger, the parties
hereto agree as follows:
1. THE MERGER
In accordance with the applicable provisions of the LBCL,
Central shall be merged with and into FCC; the separate existence
of Central shall cease; and FCC shall be the corporation
surviving the merger.
2. EFFECTIVENESS OF THE MERGER
2.1 Effective Time of the Merger. The Merger shall become
effective at the time (the "Effective Time") at which this Joint
Agreement, having been executed and acknowledged in the manner
required by law, is filed in the office of the Secretary of State
of Louisiana.
2.2 Effect of the Merger. At the Effective Time, (i) the
separate existence of Central shall cease and Central shall be
merged with and into FCC; (ii) FCC shall continue to possess all
of the rights, privileges and franchises possessed by it and
shall, at the Effective Time, become vested with and possess all
rights, privileges and franchises possessed by Central; (iii) FCC
shall be responsible for all of the liabilities and obligations
of Central in the same manner as if FCC had itself incurred such
liabilities or obligations, and the Merger shall not affect or
impair the rights of the creditors or of any persons dealing with
the Merging Corporations; (iv) the Merger will not of itself
cause a change, alteration or amendment to the Articles of
Incorporation or the By-Laws of FCC; (v) the Board of Directors
of FCC shall consist of those persons serving as Directors of FCC
immediately prior to the Effective Time and, in addition,
Robert C. Cudd, III, Hugh G. McDonald, Jr., Saul A. Mintz and
Tom H. Scott; (vi) the officers of FCC shall consist of those
persons serving as officers of FCC immediately prior to the
Effective Time and, in addition, James A. Altick will at the
Effective Time become an Executive Vice President of FCC; and
(vii) the Merger shall, from and after the Effective Time, have
all the effects provided by applicable Louisiana law.
2.3 Additional Actions. If, at any time after the
Effective Time, FCC shall consider or be advised that any further
assignments or assurances in law or any other acts are necessary
or desirable (a) to vest, perfect or confirm, of record or
otherwise, in FCC, title to or the possession of any property or
right of Central acquired or to be acquired by reason of, or as a
result of, the Merger, or (b) otherwise to carry out the purposes
of this Joint Agreement, Central and its proper officers and
directors shall be deemed to have granted to FCC an irrevocable
power of attorney to execute and deliver all such proper deeds,
assignments and assurances in law and to do all acts necessary or
proper to vest, perfect or confirm title to and possession of
such property or rights in FCC and otherwise to carry out the
purposes of this Joint Agreement; and the proper officers and
directors of FCC are fully authorized in the name of Central to
take any and all such action.
3. METHOD OF CARRYING MERGER INTO EFFECT
This Joint Agreement shall be submitted to the shareholders
of Central and FCC for their approval. If such approval is
given, then the fact of such approval shall be certified hereon
by the Secretaries of Central and FCC. This Joint Agreement, so
approved and certified, shall, as soon as is practicable, be
signed and acknowledged by the President or Vice President of
each of the Merging Corporations. As soon as may be practicable
thereafter, this Joint Agreement, so certified, signed and
acknowledged, shall be delivered to the Secretary of State of
Louisiana for filing in the manner required by law and shall be
effective at the Effective Time; and thereafter, as soon as
practicable, a copy of the Certificate of Merger issued by the
Secretary of State of Louisiana, and certified by him to be a
true copy, shall be filed for record in the Office of the
Recorder of Mortgages of the parishes in which the Merging
Corporations have their respective registered offices and in the
Office of the Recorder of Conveyances of each parish in which
Central has immovable property.
4. CONVERSION OF SHARES
4.1 Certain Definitions. As used in Section 4, the
following terms have the following respective meanings:
(a) "Central Common Stock" shall mean the Common Stock,
par value $1.00 per share, of Central.
(b) "Central Companies" shall mean, collectively,
Central and all Central Subsidiaries.
(c) "Central Option Shares" means shares of Central
Common Stock issuable pursuant to the Stock Option Agreement
dated as of May 15, 1995, between Central and FCC.
(d) "Central Subsidiaries" shall mean the subsidiaries
of Central.
(e) "Dissenters' Shares" shall mean shares of Central
Common Stock as to which dissenters' rights have been perfected
and not withdrawn or otherwise forfeited under Section 131 of the
BCL.
(f) "FCC Common Stock" shall mean the Common Stock, par
value $5.00 per share, of FCC.
(g) "Market Value" shall mean the average of the
closing sales prices of a share of FCC Common Stock on the NASDAQ
Stock Market for the 15 business days ended on the last business
day before the Effective Time. In the event FCC changes the
number of shares of FCC Common Stock issued and outstanding as a
result of any stock split, stock dividend or other similar change
in FCC's capitalization, or if a distribution of securities is
made in respect of the FCC Common Stock as a result of any
dividend (other than regular quarterly cash dividends), spinoff
or other reorganization in which FCC Common Stock is not changed
into or exchanged for a different kind of securities, and in any
such case the record date is before the Effective Time and the
ex-dividend or ex-distribution date is subsequent to, or during,
the period during which Market Value is determined such that such
event is not reflected in any one or more of the closing sales
prices used to determine Market Value, the appropriate adjustment
shall be made in such closing sales price or prices so as to
reflect such change.
4.2 Conversion of Central Common Stock. Except for
Dissenters' Shares, at the Effective Time each outstanding share
of Central Common Stock will be converted into that number of
shares of FCC Common Stock as is equal to (A) 1.670 (the
"Conversion Ratio"), minus (B) the quotient of (i)(a) the amount
(if any) by which all expenses of the Central Companies in
connection with the transactions contemplated by this Agreement
exceed $1,750,000 divided by (b) the Market Value of one share of
FCC Common Stock; divided by (ii) the number of shares of
Central Common Stock outstanding at the Effective Time. In
calculating expenses of the Central Companies for purposes of the
preceding clause (B)(i)(a), expenses which Central incurs
directly or indirectly as a result of the following shall not be
included: (1) any action or failure to act on the part of FCC;
(2) any circumstances or conditions surrounding the ongoing
business operations or regulatory compliance of FCC; or (3) any
claims or proceedings, regulatory or otherwise, with merit or
not, brought against FCC in connection with the transactions
contemplated herein or which significantly delay or impede FCC's
performance in such transactions. The aggregate number of shares
of FCC Common Stock to be issued in the Merger, prior to any
adjustment in accordance with Section 4.4 or in accordance with
clause (B)(i)(a) of this Section 4.2, shall in no event exceed
6,792,453, plus, in the event of any issuance by Central of
Central Option Shares, the number of shares of FCC Common Stock
into which such Central Option Shares are converted by virtue of
the Merger.
4.3 Nonconversion of Certain Shares of Central Common
Stock. Shares of Central Common Stock that are held by Central
or any Central Subsidiary (other than shares held by such a
Subsidiary in a fiduciary capacity other than for Central or any
other Subsidiary of Central) shall not be considered to be
outstanding and shall be cancelled (and not converted) by virtue
of the Merger at the Effective Time and without any further
action by either party. Central Option Shares that are held by
FCC or any subsidiary of FCC (other than Central Option Shares
held by such a subsidiary in a fiduciary capacity other than for
FCC or any other subsidiary of FCC) shall be cancelled (and not
converted) by virtue of the Merger at the Effective Time and
without any further action by either party.
4.4 Adjustments. If, prior to the Effective Time, Central
(subject to any restrictions contained in the Plan) or FCC, as
the case may be, should split or combine the Central Common
Stock or the FCC Common Stock, or pay a stock dividend in Central
Common Stock or FCC Common Stock, or otherwise change the Central
Common Stock or FCC Common Stock into any other securities, or
make any other dividend or distribution in respect of the Central
Common Stock or the FCC Common Stock (other than normal cash
dividends as the same may be adjusted from time to time in
accordance with or not in violation of the Plan), then the
Conversion Ratio (and, correspondingly, the maximum aggregate
number of shares of FCC Common Stock that may be issued in the
Merger, as provided in the last sentence of Section 4.2) will be
appropriately adjusted to reflect such split, combination,
dividend or other distribution or change.
4.5 Fractional Shares. In lieu of issuing any fractional
share of FCC Common Stock, each holder of Central Common Stock
who would otherwise be entitled thereto, after aggregating into
whole shares all fractional shares of FCC Common Stock to which
such holder is entitled by virtue of the Merger, upon surrender
of the certificate(s) which represented Central Common Stock,
will receive cash equal to such fractional share multiplied by
the Market Value.
4.6 Exchange of Certificates. After the Effective Time,
each holder of Central Common Stock (other than Dissenters'
Shares), upon surrender of such holder's certificates therefor to
FCC together with a completed letter of transmittal in the form
furnished by FCC, will be entitled to receive the shares of FCC
Common Stock into which such holder's shares have been converted
and cash in lieu of any fractional share as provided above, less
any applicable tax withholding. Until then, each certificate for
Central Common Stock will represent the number of whole shares of
FCC Common Stock into which the shares of Central Common Stock
represented thereby were converted, except that FCC may refuse to
pay any dividend or other distribution payable to holders of any
unsurrendered certificate for Central Common Stock until
surrender or if such dividend or distribution has reverted in
full ownership to FCC under its Articles of Incorporation.
Whether or not a certificate for Central Common Stock is
surrendered, after the Effective Time it will not represent any
interest in any person other than FCC.
4.7 Shares of FCC Common Stock. The shares of capital
stock of FCC outstanding immediately prior to the Effective Time
shall not be converted by virtue of the Merger.
5. MISCELLANEOUS
5.1 Termination. Prior to the Effective Time, this Joint
Agreement may be terminated, and the Merger abandoned, as set
forth in the Plan.
5.2 Headings. The descriptive headings of the sections of
this Joint Agreement are inserted for convenience only and do not
constitute a part hereof for any other purpose.
5.3 Modifications, Amendments and Waivers. At any time
prior to the Effective Time (notwithstanding any shareholder
approval that may have already been given), the parties hereto
may, to the extent permitted by and as provided in the Plan,
modify, amend or supplement any term or provision of this Joint
Agreement.
5.4 Governing Law. This Joint Agreement shall be governed
by the laws of the State of Louisiana (regardless of the laws
that might be applicable under principles of conflicts of law) as
to all matters, including, but not limited to, matters of
validity, construction, effect and performance.
IN WITNESS WHEREOF, this Joint Agreement has been executed
by a majority of the respective Directors of each of the Merging
Corporations, as of the day and year first above written.
FOR THE BOARD OF DIRECTORS OF
CENTRAL CORPORATION:
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
FOR THE BOARD OF DIRECTORS OF
FIRST COMMERCE CORPORATION:
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
CERTIFICATE OF SECRETARY OF
CENTRAL CORPORATION
I hereby certify that I am the duly elected Secretary of
Central Corporation, a Louisiana corporation, presently serving
in such capacity and that the foregoing Agreement was, in the
manner required by law, duly approved, without alteration or
amendment, by the required vote of the shareholders of Central
Corporation.
Certificate dated , 1995.
___________________________________
____________________, Secretary
CERTIFICATE OF SECRETARY OF
FIRST COMMERCE CORPORATION
I hereby certify that I am the duly elected Secretary of
First Commerce Corporation, a Louisiana corporation, presently
serving in such capacity and that the foregoing Agreement was, in
the manner required by law, duly approved, without alteration or
amendment, by the required vote of the shareholders of First
Commerce Corporation.
Certificate dated , 1995.
___________________________________
___________________, Secretary
EXECUTION BY CORPORATIONS
Considering the approval of this Agreement by the
shareholders of Central Corporation and First Commerce
Corporation, as certified above, this Agreement is executed by
such corporations, acting through their respective Presidents,
this _____ day of __________, 1995.
CENTRAL CORPORATION
By: ___________________________________
President
Attest:
___________________________________
Secretary
FIRST COMMERCE CORPORATION
By: ___________________________________
Ian Arnof, President and Chief
Executive Officer
Attest:
___________________________________
Secretary
ACKNOWLEDGMENT AS TO
CENTRAL CORPORATION
STATE OF LOUISIANA
PARISH OF ____________________
BEFORE ME, the undersigned authority, personally came and
appeared ____________________ who, being duly sworn, declared and
acknowledged before me that he is the President of Central
Corporation and that in such capacity he was duly authorized to
and did execute the foregoing Agreement on behalf of such
corporation, for the purposes therein expressed and as his and
such corporation's free act and deed.
___________________________________
Appearer
Sworn to and subscribed before me
this _____ day of __________, 1995.
___________________________________
Notary Public
ACKNOWLEDGMENT AS TO
FIRST COMMERCE CORPORATION
STATE OF LOUISIANA
PARISH OF ORLEANS
BEFORE ME, the undersigned authority, personally came and
appeared Ian Arnof who, being duly sworn, declared and
acknowledged before me that he is the President and Chief
Executive Officer of First Commerce Corporation and that in such
capacity he was duly authorized to and did execute the foregoing
Agreement on behalf of such corporation, for the purposes therein
expressed and as his and such corporation's free act and deed.
___________________________________
Appearer
Sworn to and subscribed before me
this _____ day of __________, 1995.
___________________________________
Notary Public
EXHIBIT II
STOCK OPTION AGREEMENT
This Stock Option Agreement ("Option Agreement") is dated as
of May 15, 1995, between Central Corporation ("Central"), a
Louisiana corporation registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended ("Bank Holding
Company Act"), and First Commerce Corporation ("FCC"), a
Louisiana corporation registered as a bank holding company under
the Bank Holding Company Act.
W I T N E S S E T H
WHEREAS, the Boards of Directors of Central and FCC have
approved an Agreement and Plan of Merger ("Merger Agreement")
dated as of the date hereof providing for certain transactions
pursuant to which Central would be merged with and into FCC;
WHEREAS, as a condition to FCC's entry into the Merger
Agreement and to induce such entry, Central has agreed to grant
to FCC the option set forth herein to purchase authorized but
unissued shares of Central Common Stock;
NOW, THEREFORE, in consideration of the premises herein
contained, the parties agree as follows:
1. Definitions.
Capitalized terms defined in the Merger Agreement and used
herein shall have the same meanings as in the Merger Agreement.
2. Grant of Option.
Subject to the terms and conditions set forth herein,
Central hereby grants to FCC an option ("Option") to purchase up
to 809,279 shares of Central Common Stock, at a price of $30 per
share payable in cash as provided in Section 4 hereof; provided,
however, that in the event Central issues or agrees to issue any
shares of Central Common Stock (other than as permitted under the
Merger Agreement) at a price less than $30 per share (as adjusted
pursuant to Section 6 hereof), the exercise price shall be equal
to such lesser price; in no event, however, shall the number of
shares for which the Option is exercisable exceed 19.9% of
Central's issued and outstanding Common Stock.
3. Exercise of Option.
(a) Unless FCC shall have breached in any material
respect any covenant or agreement contained in the Merger
Agreement and such breach shall not have been cured after notice
from Central, FCC may exercise the Option, in whole or part, at
any time or from time to time within six months (which period of
time shall be extended pursuant to Section 10(a)) following the
occurrence of a Purchase Event (as defined below); provided that
to the extent the Option shall not have been exercised, it shall
terminate and be of no further force and effect (i) on the
Effective Date of the Merger under the Merger Agreement, or
(ii) upon termination of the Merger Agreement in accordance with
the provisions thereof if such termination occurs prior to the
first Purchase Event to occur, or (iii) upon the earlier of
(A) March 31, 1997, or (B) the date that is one year following
the termination of the Merger Agreement, if such termination
occurs after the first Purchase Event to occur. Notwithstanding
the foregoing, this Option Agreement shall terminate, and all
unexercised rights hereunder will simultaneously terminate,
whether or not a Purchase Event has occurred, upon any
termination of the Merger Agreement (i) under Section 9.1(a)
thereof, (ii) by Central under Section 9.1(b) thereof, or
(iii) by either Party under Section 9.1(h) thereof.
(b) As used herein, a "Purchase Event" shall mean any
of the following events or transactions occurring after the date
hereof:
(i) any person (other than FCC or any FCC Subsidiary) shall
have commenced a bona fide tender or exchange offer to
purchase shares of Central Common Stock such that upon
consummation of such offer such person would own or
control 20% or more of the outstanding shares of
Central Common Stock;
(ii) Central or any Central Subsidiary, without having
received FCC's prior written consent, shall have
entered into an agreement with any person (other than
FCC or any FCC Subsidiary), or any person (other than
FCC or any FCC Subsidiary), other than in connection
with a transaction to which FCC has given its prior
written consent, shall have filed an application or
notice with the Federal Reserve Board or any other
federal or state regulatory agency for clearance or
approval, to (x) merge or consolidate, or enter into
any similar transaction, with Central or any Central
Subsidiary other than with respect to any requirement
of divestiture in connection with the Merger Agreement
under the federal banking or antitrust laws,
(y) purchase, lease or otherwise acquire any
substantial portion of the assets of Central or any
Central Subsidiary other than in the ordinary course of
business of Central or such Central Subsidiary, or
(z) purchase or otherwise acquire (including by way of
merger, consolidation, share exchange or any similar
transaction) securities representing 20% or more of the
voting power of Central or any Central Subsidiary;
(iii)any person (other than FCC, any FCC Subsidiary or the
Central Subsidiaries in a fiduciary capacity) shall
have acquired beneficial ownership or the right to
acquire beneficial ownership of 10% or more of the
outstanding shares of Central Common Stock or the
common stock of any Central Subsidiary (the term
"beneficial ownership" for purposes of this Option
Agreement having the meaning assigned thereto in
Section 13(d) of the 1934 Act and the regulations
promulgated thereunder); provided, however, that in
calculating the number of shares owned by any person,
no shares which were beneficially owned prior to the
effective date of this Agreement shall be included;
(iv) any person (other than FCC or any FCC Subsidiary) shall
have made a bona fide proposal to Central by public
announcement or written communication that is or
becomes the subject of public disclosure to (x) acquire
Central or any Central Subsidiary by merger,
consolidation, share exchange, purchase of all or
substantially all of its assets or any other similar
transaction, or (y) make an offer described in
clause (i) or (ii) above;
(v) any person shall have solicited proxies in a proxy
solicitation subject to Regulation 14A under the
Exchange Act in opposition to approval of the Merger
Agreement by Central's shareholders; or
(vi) any transaction of the type referred to in clause (ii)
above shall have been consummated.
If more than one of the transactions giving rise to a Purchase
Event under this Section 3(b) is undertaken or effected, then all
such transactions shall give rise to successive Purchase Events,
but the successive nature of such Purchase Events shall not
increase the number of shares of Central Common Stock as to which
the Option may be exercised. As used in this Option Agreement,
"person" shall have the meanings specified in Sections 3(a)(9)
and 13(d)(3) of the 1934 Act.
(c) In the event FCC wishes to exercise the Option, it
shall send to Central a written notice (the date of which being
herein referred to as "Notice Date") specifying (i) the total
number of shares it will purchase pursuant to such exercise, and
(ii) a place and date not earlier than three business days nor
later than 60 business days from the Notice Date for the closing
of such purchase ("Closing Date"); provided that if prior
notification to or approval of the Federal Reserve Board or any
other Regulatory Authority is required in connection with such
purchase, FCC shall promptly file the required notice or
application for approval and shall expeditiously process the same
and the period of time that otherwise would run pursuant to this
sentence shall run instead from the date on which any required
notification period has expired or been terminated or such
approval has been obtained and any requisite waiting period shall
have passed.
4. Payment and Delivery of Certificates.
(a) At the closing referred to in Section 3 hereof, FCC
shall pay to Central the aggregate purchase price for the shares
of Central Common Stock purchased pursuant to the exercise of the
Option in immediately available funds by a wire transfer to a
bank account designated by Central or by federal funds check if
no account has been designated.
(b) At such closing, simultaneously with the delivery
of cash as provided in subsection (a), Central shall deliver to
FCC a certificate or certificates representing the number of
shares of Central Common Stock purchased by FCC and FCC shall
deliver to Central a letter agreeing that FCC will not offer to
sell or otherwise dispose of such shares in violation of
applicable law or the provisions of this Option Agreement.
(c) Certificates for Central Common Stock delivered at
a closing hereunder may be endorsed with a restrictive legend
which shall read substantially as follows:
"The transfer of the shares represented by this
certificate is subject to certain provisions of an
agreement between the registered holder hereof and
Central Corporation and to resale restrictions
arising under the Securities Act of 1933, as amended,
a copy of which agreement is on file at the principal
office of Central Corporation. A copy of such
agreement will be provided to the holder hereof
without charge upon receipt by Central Corporation of
a written request."
It is understood and agreed that the above legend shall be
removed by delivery of substitute certificate(s) without such
legend if FCC shall have delivered to Central a copy of a
letter from the staff of the SEC, or an opinion of counsel, in
form and substance reasonably satisfactory to Central, to the
effect that such legend is not required for purposes of the
1933 Act.
5. Representations.
Central hereby represents, warrants and covenants to FCC
as follows:
(a) Central shall at all times maintain sufficient
authorized but unissued shares of Central Common Stock so that
the Option may be exercised without authorization of
additional shares of Central Common Stock.
(b) The shares to be issued upon due exercise, in
whole or in part, of the Option, when paid for as provided
herein, will be duly authorized, validly issued, fully paid
and nonassessable and will be delivered free and clear of all
claims, liens, encumbrances and security interests and not
subject to any preemptive rights.
(c) Central will not, by amendment of its Articles
of Incorporation or through reorganization, consolidation,
merger, dissolution or sale of assets, or by any other
voluntary act, avoid or seek to avoid the observance or
performance of any of the covenants, stipulations or
conditions to be observed or performed hereunder by it; and
will promptly take all action as may from time to time be
required (including cooperating fully with FCC in preparing
applications or notices and providing information with respect
to regulatory approval) in order to permit FCC to exercise the
Option and Central duly and effectively to issue shares of
Central Common Stock pursuant hereto.
6. Adjustment Upon Changes in Capitalization.
If Central should split or combine the Central Common
Stock, or pay a stock dividend or other stock distribution in
Central Common Stock, or otherwise change the Central Common
Stock into any other securities, or make any other dividend or
distribution in respect of the Central Common Stock (other
than normal cash dividends), then the number of shares of
Central Common Stock subject to the Option shall be adjusted
so that, after such issuance, it equals 19.9% of the number of
shares of Central Common Stock then issued and outstanding
without giving effect to any shares subject or issued pursuant
to the Option. Nothing contained in this Section 6 shall be
deemed to authorize Central to breach any provisions of the
Merger Agreement. Whenever the number of shares of Central
Common Stock purchasable upon exercise hereof is adjusted as
provided in this Section 6, the option exercise price shall be
adjusted by multiplying the option exercise price by a
fraction, the numerator of which shall be equal to the number
of shares of Central Common Stock purchasable prior to the
adjustment and the denominator of which shall be equal to the
number of shares of Central Common Stock purchasable after the
adjustment.
7. Registration Rights.
Central shall, if requested by FCC, as expeditiously as
possible file a registration statement on a form of general
use under the 1933 Act if necessary in order to permit the
sale or other disposition of this Option and/or the shares of
Central Common Stock acquired upon exercise of the Option in
accordance with the intended method of sale or other
disposition requested by FCC. FCC shall provide all
information reasonably requested by Central for inclusion in
any registration statement to be filed hereunder. Central
will use its reasonable best efforts to cause such
registration statement first to become effective and then to
remain effective for such period not in excess of 270 days
from the day such registration statement first becomes
effective as may be reasonably necessary to effect such sales
or other dispositions. The first registration effected under
this Section 7 shall be at Central's expense except for
underwriting commissions and the fees and disbursements of
FCC's counsel attributable to the registration. A second
registration may be requested hereunder at FCC's expense. In
no event shall Central be required to effect more than two
registrations hereunder. If requested by Central, in
connection with any such registration, FCC will become a party
to any underwriting agreement relating to the sale of such
shares, but only to the extent of obligating itself in respect
of representations, warranties, indemnities and other
agreements customarily included by a selling shareholder in
such underwriting agreements.
8. Certain Puts.
(a) Upon the occurrence of a Purchase Event that
occurs prior to termination of the Option, (i) at the request
of FCC, delivered while the Option (in whole or part) is
exercisable, Central shall repurchase the Option from FCC at a
price equal to (x) the amount by which (a) the market/offer
price (as defined below) exceeds (b) the option exercise
price, multiplied by (y) the number of shares for which the
Option may then be exercised; and (ii) at the request from
time to time of the owner of shares purchased pursuant to the
Option, delivered while the Option (in whole or part) is
exercisable (or, if it has been fully exercised, would have
been exercisable had such exercise not been made), Central
shall repurchase such number of the shares issued pursuant to
the Option from the owner as the owner shall designate at a
price equal to (x) the market/offer price multiplied by the
number of such shares so designated. The term "market/offer
price" shall mean the highest of (i) the price per share of
Central Common Stock at which a tender offer or exchange offer
therefor has been made after the date hereof, (ii) the price
per share of Central Common Stock to be paid by any third
party pursuant to any merger, consolidation, share exchange or
other agreement with Central entered into after the date
hereof, (iii) the highest closing price for shares of Central
Common Stock within the 30-day period immediately preceding
the date FCC gives notice of the required repurchase of this
Option or the owner gives notice of the required repurchase of
shares, as the case may be, or (iv) in the event of a sale of
all or substantially all of Central's assets, the sum of the
price paid in such sale for such assets and the current market
value of the remaining assets of Central as determined by a
nationally recognized investment banking firm selected by the
parties (or by an arbitrator if they cannot agree) divided by
the number of shares of Central Common Stock outstanding at
the time of such sale. In determining the market/offer price,
the value of consideration other than cash shall be determined
by a nationally recognized investment banking firm selected by
the parties (or by an arbitrator if they cannot agree), and
such determination shall be conclusive and binding on all
parties.
(b) FCC or the owner, as the case may be, may
exercise its right to require Central to repurchase the Option
and any shares pursuant to this Section 8 by surrendering for
such purpose to Central, at its principal office, this Option
Agreement or certificates for the shares, as applicable,
accompanied by a written notice or notices stating that FCC or
the owner, as the case may be, elects to require Central to
repurchase the Option and/or the shares in accordance with the
provisions of this Section 8. As promptly as practicable, and
in any event within five business days after the surrender of
the Option and/or certificates representing shares and the
receipt of such notice or notices relating thereto, Central
shall deliver or cause to be delivered to FCC or the owner the
applicable repurchase price therefor or the portion thereof
that Central is not then prohibited from so delivering under
applicable law and regulation or as a consequence of
administrative policy.
(c) Central hereby undertakes to use its best
efforts to obtain all required regulatory and legal consents
and to file any required notices in order to accomplish any
repurchase contemplated by this Section 8. Nonetheless, to
the extent that Central is prohibited under applicable law or
regulation, or as a consequence of administrative policy, from
repurchasing the Option and/or the shares in full, Central
shall immediately so notify FCC and the owner and thereafter
deliver or cause to be delivered, from time to time, the
portion of the repurchase price that it is no longer
prohibited from delivering. If Central at any time after
delivery of a notice of repurchase pursuant to Section 8 is
prohibited under applicable law or regulation, or as a
consequence of administrative policy, from delivering the
repurchase price in full (and Central hereby undertakes to use
its best efforts to obtain all required regulatory and legal
approvals and to file any required notices as promptly as
practicable in order to accomplish such repurchase), FCC
and/or the owner may revoke its notice of repurchase either in
whole or to the extent of the prohibition.
9. Severability.
If any term, provision, covenant or restriction contained
in this Option Agreement is held by a court or a federal or
state regulatory agency of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms,
provisions and covenants and restrictions contained in this
Option Agreement shall remain in full force and effect, and
shall in no way be affected, impaired or invalidated. If for
any reason such court or regulatory agency determines that the
Option will not permit the holder to acquire the full number
of shares of Central Common Stock provided in Section 2 hereof
(as adjusted pursuant to Section 6 hereof), it is the express
intention of Central to allow the holder to acquire or to
require Central to repurchase such lesser number of shares as
may be permissible, without any amendment or modification
hereof.
10. Miscellaneous.
(a) Extension. The period for exercise by FCC and
its assignees of any rights under this Option Agreement shall
be extended (i) to the extent necessary to obtain all
regulatory approvals for the exercise of such rights, and for
the expiration of all statutory waiting periods; and (ii) to
the extent necessary to avoid liability under Section 16(b) of
the 1934 Act by reason of such exercise.
(b) Consents. Each of FCC and Central will use its
best efforts to make all filings with, and to obtain consents
of, all third parties and Regulatory Authorities necessary to
the consummation of the transactions contemplated by this
Option Agreement, including without limitation applying to the
Federal Reserve Board under the Bank Holding Company Act for
approval to acquire the shares issuable hereunder.
(c) Expenses. Except as otherwise expressly
provided herein or in the Merger Agreement each of the parties
hereto shall bear and pay all costs and expenses incurred by
it or on its behalf in connection with the transactions
contemplated hereunder, including fees and expenses of its own
financial consultants, investment bankers, accountants and
counsel.
(d) Entire Agreement. Except as otherwise expressly
provided herein or in the Merger Agreement, this Option
Agreement contains the entire agreement between the parties
with respect to the transactions contemplated hereunder and
supersedes all prior agreements or understandings with respect
thereto, written or oral. The terms and conditions of this
Option Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and
assigns. Nothing in this Option Agreement, expressed or
implied, is intended to confer upon any party, other than the
parties hereof, and their respective successors and assigns,
any rights, remedies, obligations or liabilities under or by
reason of this Option Agreement, except as expressly provided
herein.
(e) Assignment. Neither of the parties hereto may
assign any of its rights or obligations under this Option
Agreement or the Option created hereunder to any other person,
without the express written consent of the other party, except
that in the event a Purchase Event shall have occurred and be
continuing FCC may assign in whole or in part its rights and
obligations hereunder; provided, however, that until the date
30 days following the date on which the Federal Reserve Board
approves an application by FCC under the Bank Holding Company
Act to acquire the shares of Central Common Stock subject to
the Option, FCC may not assign its rights under the Option
except in (i) a widely dispersed public distribution, (ii) a
private placement in which no one party acquires the rights to
purchase in excess of 2% of the Central Common Stock, (iii) an
assignment to a single party (e.g., a broker or investment
banker) for the purpose of conducting a widely dispersed
public distribution on FCC's behalf, or (iv) any other manner
approved by the Federal Reserve Board.
(f) Notices. All notices or other communications
which are required or permitted hereunder shall be in writing
and sufficient if delivered personally or sent by overnight
express or by registered or certified mail, postage prepaid,
addressed as follows:
If to FCC:
First Commerce Corporation
210 Baronne Street
New Orleans, LA 70112
Attention: Ian Arnof
With a copy to:
Correro, Fishman & Casteix, L.L.P.
201 St. Charles Avenue, 47th Floor
New Orleans, LA 70170-4700
Attention: Louis Y. Fishman
If to Central:
Central Corporation
300 DeSiard Street
Monroe, LA 71201-4928
Attention: James A. Altick
With a copy to:
Mayer, Brown & Platt
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006-1882
Attention: Brian W. Smith
A party may change its address for notice purposes by written
notice to the other party hereto.
(g) Counterparts. This Option Agreement may be
executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument, but
all such counterparts together shall constitute but one
agreement.
(h) Specific Performance. The parties agree that
damages would be an inadequate remedy for a breach of the
provisions of this Option Agreement by either party hereto and
that this Option Agreement may be enforced by either party
hereto through injunctive or other equitable relief.
(i) Governing Law. This Option Agreement shall be
governed by and construed in accordance with the laws of the
Louisiana applicable to agreements made and entirely to be
performed within such state, and such federal laws as may be
applicable.
IN WITNESS WHEREOF, each of the parties hereto has
executed this Option Agreement as of the day and year first
written above.
CENTRAL CORPORATION
By__________________________________
Name:
Title:
FIRST COMMERCE CORPORATION
By__________________________________
Name:
Title:
Exhibit III
Employment Agreement
This Agreement is made as of __________, 1995 by and between
First Commerce Corporation (FCOM), Central Bank (Central), and
James A. Altick (JAA) pursuant to the merger agreement between
FCOM and Central Corporation ("the Merger"). In consideration of
the covenants and agreements contained herein, FCOM, Central and
JAA agree to the following:
1.Employment Period. FCOM and Central will employ JAA for five
years following the date this Agreement is signed (also referred
to herein as the term or duration of the Agreement), subject to
the terms and agreements contained herein. JAA will remain in
the employ of Central and FCOM and provide services in accordance
with this Agreement.
2.Performance of Duties. JAA's employment will be subject to the
following terms and conditions:
a.JAA will devote his full time, energies, and talents to serving
as President and Chief Executive Officer (CEO) of Central, and
Executive Vice President of FCOM. JAA will also serve on the
Board of Directors of Central during the term of this agreement.
b.JAA will not, without his consent, be assigned tasks that are
inconsistent with those assigned to his "peer group" consisting
of those senior executive officers who report directly to FCOM's
CEO or, if one is designated in the future, FCOM's Chief
Operating Officer (COO).
c.JAA will report to the Board of Directors of Central and FCOM's
CEO or COO.
d.JAA may devote a reasonable amount of time to professional,
charitable, educational, and religious organizations; speaking
engagements; membership on boards of directors of other
organizations (subject to prior approval of FCOM); and in other
similar activities that do not inhibit his job performance or
conflict with the business of FCOM or its affiliates.
e.JAA's job will be based in Monroe, Louisiana.
3.Compensation. Subject to the terms of this Agreement, JAA will
receive the following compensation:
a.JAA will receive an annual base salary which is equal to the
base salary he receives as of the effective date of the Merger,
plus an amount equal to the amount of any loss of fringe benefits
(including director's fees) JAA enjoyed prior to the Merger,
payable in accordance with FCOM's customary payroll practices.
The Board of Directors of Central, with the approval of FCOM's
CEO or COO, will review this base salary annually to determine if
an increase is appropriate.
b.JAA will receive a lump sum cash payment of $50,000 within 45
days of the consummation of the merger between FCOM and Central.
c.JAA is entitled to receive bonuses in such amounts, if any, as
determined from time to time under FCOM's bonus plan.
d.JAA will receive an annual entertainment allowance covering
certain social club dues consistent with his peer group.
e.JAA is entitled to participate in all pension, benefit, and
vacation plans made available to his peer group or FCOM's
employees generally.
4.Rights upon Termination. JAA's right to payments and benefits
for periods after the date on which his employment with FCOM
terminates is determined as follows:
a.Base Salary and Employee Benefits.
(1)Termination for Cause. If JAA's employment is terminated for
cause during the period of this Agreement, JAA will have no right
to payments or benefits following his termination date. "Cause"
is defined as follows: (a) JAA's engaging in gross misconduct,
which is materially and demonstrably injurious to Central or
FCOM; or (b) an official determination of illegal or immoral
activity by JAA. In order to terminate JAA for cause, FCOM or
Central must provide him with notice of such termination and
allow him to correct any breach within 10 days from the date
notice is given.
(2)Other Reasons for Separation. If JAA's employment terminates,
including for reasons of voluntary termination, during the period
of this Agreement other than for cause as described above, or for
death or disability, he will continue to receive his annual base
salary and certain employee benefits (medical, dental, life, and
other insurance plans for which his peer group is eligible) for
the duration of the Agreement provided that he does not engage in
the business of banking which is directly competitive with FCOM
or its affiliates in the State of Louisiana, for a two-year
period following the date of his termination, or the remaining
period of the Agreement, whichever is shorter. For these
purposes, an entity which is engaged in the business of banking
is an entity which engages in one or more of the following:
taking deposits, making loans, paying checks, and providing
trust, brokerage and investment services.
(3)Involuntary Termination. If JAA terminates his employment
with Central or FCOM due to (a) a diminution of his authority,
duties, responsibilities or status; (b) a reduction in his annual
rate of salary; (c) the elimination or material reduction of his
rights to indemnification; or (d) a material breach of this
employment agreement by Central or FCOM, JAA will receive the
benefits provided under subsection (2) hereof if he does not
compete with FCOM or its affiliates as described in subsection
(2).
b.Bonus Payments.
(1)No bonus payment shall be due if JAA terminates voluntarily.
(2)No bonus payment shall be due if JAA's employment is
terminated for cause as defined in 4a(1).
(3)If JAA's employment terminates involuntarily for reasons other
than cause as defined in 4a(1) during the period of this
Agreement, he will be entitled to a pro rata bonus payment for
the year in which his employment terminates, which is the product
of the full bonus he would have received if employed for the
entire fiscal year multiplied by a fraction of actual days
employed divided by 365 days. Payment will be made in lump sum
when bonus payments are made to JAA's peer group.
5.Confidentiality. JAA will not disclose non-public information
concerning FCOM or its affiliates which was acquired in the
course of his employment without the prior written consent of
FCOM's CEO or COO, except where required by the lawful order of
the court, applicable regulatory authorities, or in the
performance of his duties under this Agreement.
6.Withholding. All payments under this Agreement are subject to
such deductions as required by law or regulation. All tax
liability resulting from these payments and benefits are the
responsibility of JAA.
7.Indemnification. JAA shall be indemnified for and defended
against any claims incurred by him or by FCOM or its affiliates
to the same extent as his peer group, provided that JAA's conduct
meets the applicable standard of conduct provided in Louisiana
law.
8.Successors. This Agreement shall be binding upon any successor
of FCOM or Central (by purchase of assets, merger, corporate
reorganization, or otherwise).
9.Applicable Law. The provisions of this Agreement shall be
construed in accordance with the laws of the State of Louisiana.
10.Arbitration. In the event there is a dispute arising under
this Agreement, the parties will submit their dispute to
arbitration in New Orleans for final resolution in accordance
with the rules and procedures of the American Arbitration
Association. If JAA prevails, FCOM and Central shall pay all
costs incurred by him as a result of the arbitration.
11.Entire Agreement. This document constitutes the entire
agreement between the parties concerning the subject matter
hereof.
In witness whereof, JAA has hereunto set his hand, and FCOM and
Central have each on its behalf caused these presents to be
executed on the day and year first written above.
By: ___________________________________
Ian Arnof
Chief Executive Officer
First Commerce Corporation
By: ___________________________________
James A. Altick
By: ___________________________________
Central Bank
Exhibit IV-A
Employment Agreement
This Agreement is made as of __________, 1995 by and between
First Commerce Corporation (FCOM), Central Bank (Central) and
Cary S. Davis (Executive) pursuant to the merger agreement
between FCOM and Central Corporation ("the Merger"). In
consideration of the covenants and agreements contained herein,
FCOM, Central, and Executive agree to the following:
1.Employment Period. FCOM or Central will employ Executive for
three years following the date this Agreement is signed (also
referred to herein as the term or duration of the Agreement),
subject to the terms and agreements contained herein. Executive
will remain in the employ of FCOM or Central and provide services
in accordance with this Agreement.
2.Performance of Duties. Executive's employment will be subject
to the following terms and conditions:
a.Executive will devote his full time, energies, and talents to
serving FCOM or Central.
b.Executive will perform his duties faithfully and efficiently
subject to the directions of the manager to whom he reports, his
"supervisor."
c.Executive can be offered a position outside of Monroe,
Louisiana and/or different job responsibilities. If he declines
and terminates employment, Executive has the right to base salary
and benefits as described in 4a(2).
d.Executive may devote a reasonable amount of time to
professional, charitable, educational, and religious
organizations; speaking engagements; membership on boards of
directors of other organizations (subject to prior approval of
FCOM); and in other similar activities that do not inhibit his
job performance or conflict with the business of FCOM or its
affiliates.
3.Compensation. Subject to the terms of this Agreement,
Executive will receive the following compensation:
a.Executive will receive an annual base salary which is equal to
the base salary he receives as of the effective date of the
Merger, plus an amount equal to the amount of any loss of fringe
benefits Executive enjoyed prior to the Merger payable in
accordance with FCOM's customary payroll practices. Executive's
supervisor will review this base salary annually to determine if
an increase is appropriate.
b.Executive will receive a lump sum cash payment of $35,000
within 45 days of the consummation of the merger between FCOM and
Central.
c.Executive is entitled to receive bonuses in such amounts, if
any, as determined from time to time under FCOM's bonus plan.
d.Executive is eligible to receive an annual entertainment
allowance covering certain social club dues consistent with FCOM
policy.
e.Executive is entitled to participate in all pension, benefit,
and vacation plans made available to FCOM's employees.
4.Rights upon Termination. Executive's right to payments and
benefits for periods after the date on which his employment with
FCOM terminates is determined as follows:
a.Base Salary and Employee Benefits.
(1)Termination for Cause. If Executive's employment is
terminated for cause during the period of this Agreement,
Executive will have no right to payments or benefits following
his termination date. "Cause" is defined as follows: (a)
Executive's engaging in gross misconduct which is materially and
demonstrably injurious to Central or FCOM; or (b) an official
determination of illegal or immoral activity by the Executive.
In order to terminate Executive for cause, Central or FCOM must
provide him with notice of such termination and allow him to
correct any breach within 10 days from the date notice is given.
(2)Other Reasons for Separation. If Executive's employment
terminates, including for reasons of voluntary termination,
during the period of this Agreement other than for cause as
described above, or for death or disability, he will continue to
receive his annual base salary and certain employee benefits
(medical, dental, life, and other insurance plans for which other
FCOM employees are eligible) for the duration of the Agreement
provided that he does not engage in the business of banking which
is directly competitive with FCOM or its affiliates in the State
of Louisiana, for a two-year period following the date of his
termination, or the remaining period of the Agreement, whichever
is shorter. For these purposes, an entity which is engaged in
the business of banking is an entity which engages in one or more
of the following: taking deposits, making loans, paying checks,
and providing trust, brokerage and investment services.
(3)Involuntary Termination. If Executive terminates his
employment with FCOM or Central due to (a) a reduction in his
annual rate of salary; (b) the elimination or material reduction
of his rights to indemnification; or (c) a material breach of
this employment agreement by Central or FCOM, Executive will
receive the benefits provided under subsection (2) hereof if he
does not compete with FCOM or its affiliates as described in
subsection (2).
b.Bonus Payments.
(1)No bonus payment shall be due if Executive terminates
voluntarily.
(2)No bonus payment shall be due if Executive's employment is
terminated for cause as defined in 4a(1).
(3)If Executive's employment terminates involuntarily for reasons
other than cause as defined in 4a(1) during the period of this
Agreement, he will be entitled to a pro rata bonus payment for
the year in which his employment terminates, which is the product
of the full bonus he would have received if employed for the
entire fiscal year multiplied by a fraction of actual days
employed divided by 365 days. Payment will be made in lump sum
when bonus payments are made for other FCOM employees.
5.Confidentiality. Executive will not disclose non-public
information concerning FCOM or its affiliates which was acquired
in the course of his employment without the prior written consent
of FCOM's Chief Executive Officer (CEO) or, if one is appointed,
the Chief Operating Officer (COO), except where required by the
lawful order of the court, applicable regulatory authorities, or
in the performance of his duties under this Agreement.
6.Withholding. All payments under this Agreement are subject to
such deductions as required by law or regulation. All tax
liability resulting from these payments and benefits are the
responsibility of Executive.
7.Indemnification. Executive shall be indemnified for and
defended against any claims incurred by him or by FCOM or its
affiliates to the same extent as other FCOM employees in similar
positions, provided that Executive's conduct meets the applicable
standard of conduct provided in Louisiana law.
8.Successors. This Agreement shall be binding upon any successor
of FCOM or Central (by purchase of assets, merger, corporate
reorganization, or otherwise).
9.Applicable Law. The provisions of this Agreement shall be
construed in accordance with the laws of the State of Louisiana.
10.Arbitration. In the event there is a dispute arising under
this Agreement, the parties will submit their dispute to
arbitration in New Orleans for final resolution in accordance
with the rules and procedures of the American Arbitration
Association. If Executive prevails, FCOM or Central shall pay
all costs incurred by him as a result of the arbitration.
11.Entire Agreement. This document constitutes the entire
agreement between the parties concerning the subject matter
hereof.
In witness whereof, Executive has hereunto set his hand, and FCOM
and Central have each on its behalf caused these presents to be
executed on the day and year first written above.
By: ___________________________________
Ian Arnof
Chief Executive Officer
First Commerce Corporation
By: ___________________________________
Central Bank
By: ___________________________________
Cary S. Davis
Exhibit IV-B
Employment Agreement
This Agreement is made as of __________, 1995 by and between
First Commerce Corporation (FCOM), Central Bank (Central) and
Willis T. McGhinnis (Executive) pursuant to the merger agreement
between FCOM and Central Corporation ("the Merger"). In
consideration of the covenants and agreements contained herein,
FCOM, Central, and Executive agree to the following:
1.Employment Period. FCOM or Central will employ Executive for
three years following the date this Agreement is signed (also
referred to herein as the term or duration of the Agreement),
subject to the terms and agreements contained herein. Executive
will remain in the employ of FCOM or Central and provide services
in accordance with this Agreement.
2.Performance of Duties. Executive's employment will be subject
to the following terms and conditions:
a.Executive will devote his full time, energies, and talents to
serving FCOM or Central.
b.Executive will perform his duties faithfully and efficiently
subject to the directions of the manager to whom he reports, his
"supervisor."
c.Executive can be offered a position outside of Monroe,
Louisiana and/or different job responsibilities. If he declines
and terminates employment, Executive has the right to base salary
and benefits as described in 4a(2).
d.Executive may devote a reasonable amount of time to
professional, charitable, educational, and religious
organizations; speaking engagements; membership on boards of
directors of other organizations (subject to prior approval of
FCOM); and in other similar activities that do not inhibit his
job performance or conflict with the business of FCOM or its
affiliates.
3.Compensation. Subject to the terms of this Agreement,
Executive will receive the following compensation:
a.Executive will receive an annual base salary which is equal to
the base salary he receives as of the effective date of the
Merger, plus an amount equal to the amount of any loss of fringe
benefits Executive enjoyed prior to the Merger payable in
accordance with FCOM's customary payroll practices. Executive's
supervisor will review this base salary annually to determine if
an increase is appropriate.
b.Executive will receive a lump sum cash payment of $35,000
within 45 days of the consummation of the merger between FCOM and
Central.
c.Executive is entitled to receive bonuses in such amounts, if
any, as determined from time to time under FCOM's bonus plan.
d.Executive is eligible to receive an annual entertainment
allowance covering certain social club dues consistent with FCOM
policy.
e.Executive is entitled to participate in all pension, benefit,
and vacation plans made available to FCOM's employees.
4.Rights upon Termination. Executive's right to payments and
benefits for periods after the date on which his employment with
FCOM terminates is determined as follows:
a.Base Salary and Employee Benefits.
(1)Termination for Cause. If Executive's employment is
terminated for cause during the period of this Agreement,
Executive will have no right to payments or benefits following
his termination date. "Cause" is defined as follows: (a)
Executive's engaging in gross misconduct which is materially and
demonstrably injurious to Central or FCOM; or (b) an official
determination of illegal or immoral activity by the Executive.
In order to terminate Executive for cause, Central or FCOM must
provide him with notice of such termination and allow him to
correct any breach within 10 days from the date notice is given.
(2)Other Reasons for Separation. If Executive's employment
terminates, including for reasons of voluntary termination,
during the period of this Agreement other than for cause as
described above, or for death or disability, he will continue to
receive his annual base salary and certain employee benefits
(medical, dental, life, and other insurance plans for which other
FCOM employees are eligible) for the duration of the Agreement
provided that he does not engage in the business of banking which
is directly competitive with FCOM or its affiliates in the State
of Louisiana, for a two-year period following the date of his
termination, or the remaining period of the Agreement, whichever
is shorter. For these purposes, an entity which is engaged in
the business of banking is an entity which engages in one or more
of the following: taking deposits, making loans, paying checks,
and providing trust, brokerage and investment services.
(3)Involuntary Termination. If Executive terminates his
employment with FCOM or Central due to (a) a reduction in his
annual rate of salary; (b) the elimination or material reduction
of his rights to indemnification; or (c) a material breach of
this employment agreement by Central or FCOM, Executive will
receive the benefits provided under subsection (2) hereof if he
does not compete with FCOM or its affiliates as described in
subsection (2).
b.Bonus Payments.
(1)No bonus payment shall be due if Executive terminates
voluntarily.
(2)No bonus payment shall be due if Executive's employment is
terminated for cause as defined in 4a(1).
(3)If Executive's employment terminates involuntarily for reasons
other than cause as defined in 4a(1) during the period of this
Agreement, he will be entitled to a pro rata bonus payment for
the year in which his employment terminates, which is the product
of the full bonus he would have received if employed for the
entire fiscal year multiplied by a fraction of actual days
employed divided by 365 days. Payment will be made in lump sum
when bonus payments are made for other FCOM employees.
5.Confidentiality. Executive will not disclose non-public
information concerning FCOM or its affiliates which was acquired
in the course of his employment without the prior written consent
of FCOM's Chief Executive Officer (CEO) or, if one is appointed,
the Chief Operating Officer (COO), except where required by the
lawful order of the court, applicable regulatory authorities, or
in the performance of his duties under this Agreement.
6.Withholding. All payments under this Agreement are subject to
such deductions as required by law or regulation. All tax
liability resulting from these payments and benefits are the
responsibility of Executive.
7.Indemnification. Executive shall be indemnified for and
defended against any claims incurred by him or by FCOM or its
affiliates to the same extent as other FCOM employees in similar
positions, provided that Executive's conduct meets the applicable
standard of conduct provided in Louisiana law.
8.Successors. This Agreement shall be binding upon any successor
of FCOM or Central (by purchase of assets, merger, corporate
reorganization, or otherwise).
9.Applicable Law. The provisions of this Agreement shall be
construed in accordance with the laws of the State of Louisiana.
10.Arbitration. In the event there is a dispute arising under
this Agreement, the parties will submit their dispute to
arbitration in New Orleans for final resolution in accordance
with the rules and procedures of the American Arbitration
Association. If Executive prevails, FCOM or Central shall pay
all costs incurred by him as a result of the arbitration.
11.Entire Agreement. This document constitutes the entire
agreement between the parties concerning the subject matter
hereof.
In witness whereof, Executive has hereunto set his hand, and FCOM
and Central have each on its behalf caused these presents to be
executed on the day and year first written above.
By: ___________________________________
Ian Arnof
Chief Executive Officer
First Commerce Corporation
By: ___________________________________
Central Bank
By: ___________________________________
Willis T. McGhinnis
Exhibit IV-C
Employment Agreement
This Agreement is made as of __________, 1995 by and between
First Commerce Corporation (FCOM), Central Bank (Central) and
Thomas J. Nicholson (Executive) pursuant to the merger agreement
between FCOM and Central Corporation ("the Merger"). In
consideration of the covenants and agreements contained herein,
FCOM, Central, and Executive agree to the following:
1.Employment Period. FCOM or Central will employ Executive for
three years following the date this Agreement is signed (also
referred to herein as the term or duration of the Agreement),
subject to the terms and agreements contained herein. Executive
will remain in the employ of FCOM or Central and provide services
in accordance with this Agreement.
2.Performance of Duties. Executive's employment will be subject
to the following terms and conditions:
a.Executive will devote his full time, energies, and talents to
serving FCOM or Central.
b.Executive will perform his duties faithfully and efficiently
subject to the directions of the manager to whom he reports, his
"supervisor."
c.Executive can be offered a position outside of Monroe,
Louisiana and/or different job responsibilities. If he declines
and terminates employment, Executive has the right to base salary
and benefits as described in 4a(2).
d.Executive may devote a reasonable amount of time to
professional, charitable, educational, and religious
organizations; speaking engagements; membership on boards of
directors of other organizations (subject to prior approval of
FCOM); and in other similar activities that do not inhibit his
job performance or conflict with the business of FCOM or its
affiliates.
3.Compensation. Subject to the terms of this Agreement,
Executive will receive the following compensation:
a.Executive will receive an annual base salary which is equal to
the base salary he receives as of the effective date of the
Merger, plus an amount equal to the amount of any loss of fringe
benefits Executive enjoyed prior to the Merger payable in
accordance with FCOM's customary payroll practices. Executive's
supervisor will review this base salary annually to determine if
an increase is appropriate.
b.Executive will receive a lump sum cash payment of $35,000
within 45 days of the consummation of the merger between FCOM and
Central.
c.Executive is entitled to receive bonuses in such amounts, if
any, as determined from time to time under FCOM's bonus plan.
d.Executive is eligible to receive an annual entertainment
allowance covering certain social club dues consistent with FCOM
policy.
e.Executive is entitled to participate in all pension, benefit,
and vacation plans made available to FCOM's employees.
4.Rights upon Termination. Executive's right to payments and
benefits for periods after the date on which his employment with
FCOM terminates is determined as follows:
a.Base Salary and Employee Benefits.
(1)Termination for Cause. If Executive's employment is
terminated for cause during the period of this Agreement,
Executive will have no right to payments or benefits following
his termination date. "Cause" is defined as follows: (a)
Executive's engaging in gross misconduct which is materially and
demonstrably injurious to Central or FCOM; or (b) an official
determination of illegal or immoral activity by the Executive.
In order to terminate Executive for cause, Central or FCOM must
provide him with notice of such termination and allow him to
correct any breach within 10 days from the date notice is given.
(2)Other Reasons for Separation. If Executive's employment
terminates, including for reasons of voluntary termination,
during the period of this Agreement other than for cause as
described above, or for death or disability, he will continue to
receive his annual base salary and certain employee benefits
(medical, dental, life, and other insurance plans for which other
FCOM employees are eligible) for the duration of the Agreement
provided that he does not engage in the business of banking which
is directly competitive with FCOM or its affiliates in the State
of Louisiana, for a two-year period following the date of his
termination, or the remaining period of the Agreement, whichever
is shorter. For these purposes, an entity which is engaged in
the business of banking is an entity which engages in one or more
of the following: taking deposits, making loans, paying checks,
and providing trust, brokerage and investment services.
(3)Involuntary Termination. If Executive terminates his
employment with FCOM or Central due to (a) a reduction in his
annual rate of salary; (b) the elimination or material reduction
of his rights to indemnification; or (c) a material breach of
this employment agreement by Central or FCOM, Executive will
receive the benefits provided under subsection (2) hereof if he
does not compete with FCOM or its affiliates as described in
subsection (2).
b.Bonus Payments.
(1)No bonus payment shall be due if Executive terminates
voluntarily.
(2)No bonus payment shall be due if Executive's employment is
terminated for cause as defined in 4a(1).
(3)If Executive's employment terminates involuntarily for reasons
other than cause as defined in 4a(1) during the period of this
Agreement, he will be entitled to a pro rata bonus payment for
the year in which his employment terminates, which is the product
of the full bonus he would have received if employed for the
entire fiscal year multiplied by a fraction of actual days
employed divided by 365 days. Payment will be made in lump sum
when bonus payments are made for other FCOM employees.
5.Confidentiality. Executive will not disclose non-public
information concerning FCOM or its affiliates which was acquired
in the course of his employment without the prior written consent
of FCOM's Chief Executive Officer (CEO) or, if one is appointed,
the Chief Operating Officer (COO), except where required by the
lawful order of the court, applicable regulatory authorities, or
in the performance of his duties under this Agreement.
6.Withholding. All payments under this Agreement are subject to
such deductions as required by law or regulation. All tax
liability resulting from these payments and benefits are the
responsibility of Executive.
7.Indemnification. Executive shall be indemnified for and
defended against any claims incurred by him or by FCOM or its
affiliates to the same extent as other FCOM employees in similar
positions, provided that Executive's conduct meets the applicable
standard of conduct provided in Louisiana law.
8.Successors. This Agreement shall be binding upon any successor
of FCOM or Central (by purchase of assets, merger, corporate
reorganization, or otherwise).
9.Applicable Law. The provisions of this Agreement shall be
construed in accordance with the laws of the State of Louisiana.
10.Arbitration. In the event there is a dispute arising under
this Agreement, the parties will submit their dispute to
arbitration in New Orleans for final resolution in accordance
with the rules and procedures of the American Arbitration
Association. If Executive prevails, FCOM or Central shall pay
all costs incurred by him as a result of the arbitration.
11.Entire Agreement. This document constitutes the entire
agreement between the parties concerning the subject matter
hereof.
In witness whereof, Executive has hereunto set his hand, and FCOM
and Central have each on its behalf caused these presents to be
executed on the day and year first written above.
By: ___________________________________
Ian Arnof
Chief Executive Officer
First Commerce Corporation
By: ___________________________________
Central Bank
By: ___________________________________
Thomas J. Nicholson
Exhibit IV-D
Employment Agreement
This Agreement is made as of __________, 1995 by and between
First Commerce Corporation (FCOM), Central Bank (Central) and
Edmond L. Pennington (Executive) pursuant to the merger agreement
between FCOM and Central Corporation ("the Merger"). In
consideration of the covenants and agreements contained herein,
FCOM, Central, and Executive agree to the following:
1.Employment Period. FCOM or Central will employ Executive for
three years following the date this Agreement is signed (also
referred to herein as the term or duration of the Agreement),
subject to the terms and agreements contained herein. Executive
will remain in the employ of FCOM or Central and provide services
in accordance with this Agreement.
2.Performance of Duties. Executive's employment will be subject
to the following terms and conditions:
a.Executive will devote his full time, energies, and talents to
serving FCOM or Central.
b.Executive will perform his duties faithfully and efficiently
subject to the directions of the manager to whom he reports, his
"supervisor."
c.Executive can be offered a position outside of Monroe,
Louisiana and/or different job responsibilities. If he declines
and terminates employment, Executive has the right to base salary
and benefits as described in 4a(2).
d.Executive may devote a reasonable amount of time to
professional, charitable, educational, and religious
organizations; speaking engagements; membership on boards of
directors of other organizations (subject to prior approval of
FCOM); and in other similar activities that do not inhibit his
job performance or conflict with the business of FCOM or its
affiliates.
3.Compensation. Subject to the terms of this Agreement,
Executive will receive the following compensation:
a.Executive will receive an annual base salary which is equal to
the base salary he receives as of the effective date of the
Merger, plus an amount equal to the amount of any loss of fringe
benefits Executive enjoyed prior to the Merger payable in
accordance with FCOM's customary payroll practices. Executive's
supervisor will review this base salary annually to determine if
an increase is appropriate.
b.Executive will receive a lump sum cash payment of $35,000
within 45 days of the consummation of the merger between FCOM and
Central.
c.Executive is entitled to receive bonuses in such amounts, if
any, as determined from time to time under FCOM's bonus plan.
d.Executive is eligible to receive an annual entertainment
allowance covering certain social club dues consistent with FCOM
policy.
e.Executive is entitled to participate in all pension, benefit,
and vacation plans made available to FCOM's employees.
4.Rights upon Termination. Executive's right to payments and
benefits for periods after the date on which his employment with
FCOM terminates is determined as follows:
a.Base Salary and Employee Benefits.
(1)Termination for Cause. If Executive's employment is
terminated for cause during the period of this Agreement,
Executive will have no right to payments or benefits following
his termination date. "Cause" is defined as follows: (a)
Executive's engaging in gross misconduct which is materially and
demonstrably injurious to Central or FCOM; or (b) an official
determination of illegal or immoral activity by the Executive.
In order to terminate Executive for cause, Central or FCOM must
provide him with notice of such termination and allow him to
correct any breach within 10 days from the date notice is given.
(2)Other Reasons for Separation. If Executive's employment
terminates, including for reasons of voluntary termination,
during the period of this Agreement other than for cause as
described above, or for death or disability, he will continue to
receive his annual base salary and certain employee benefits
(medical, dental, life, and other insurance plans for which other
FCOM employees are eligible) for the duration of the Agreement
provided that he does not engage in the business of banking which
is directly competitive with FCOM or its affiliates in the State
of Louisiana, for a two-year period following the date of his
termination, or the remaining period of the Agreement, whichever
is shorter. For these purposes, an entity which is engaged in
the business of banking is an entity which engages in one or more
of the following: taking deposits, making loans, paying checks,
and providing trust, brokerage and investment services.
(3)Involuntary Termination. If Executive terminates his
employment with FCOM or Central due to (a) a reduction in his
annual rate of salary; (b) the elimination or material reduction
of his rights to indemnification; or (c) a material breach of
this employment agreement by Central or FCOM, Executive will
receive the benefits provided under subsection (2) hereof if he
does not compete with FCOM or its affiliates as described in
subsection (2).
b.Bonus Payments.
(1)No bonus payment shall be due if Executive terminates
voluntarily.
(2)No bonus payment shall be due if Executive's employment is
terminated for cause as defined in 4a(1).
(3)If Executive's employment terminates involuntarily for reasons
other than cause as defined in 4a(1) during the period of this
Agreement, he will be entitled to a pro rata bonus payment for
the year in which his employment terminates, which is the product
of the full bonus he would have received if employed for the
entire fiscal year multiplied by a fraction of actual days
employed divided by 365 days. Payment will be made in lump sum
when bonus payments are made for other FCOM employees.
5.Confidentiality. Executive will not disclose non-public
information concerning FCOM or its affiliates which was acquired
in the course of his employment without the prior written consent
of FCOM's Chief Executive Officer (CEO) or, if one is appointed,
the Chief Operating Officer (COO), except where required by the
lawful order of the court, applicable regulatory authorities, or
in the performance of his duties under this Agreement.
6.Withholding. All payments under this Agreement are subject to
such deductions as required by law or regulation. All tax
liability resulting from these payments and benefits are the
responsibility of Executive.
7.Indemnification. Executive shall be indemnified for and
defended against any claims incurred by him or by FCOM or its
affiliates to the same extent as other FCOM employees in similar
positions, provided that Executive's conduct meets the applicable
standard of conduct provided in Louisiana law.
8.Successors. This Agreement shall be binding upon any successor
of FCOM or Central (by purchase of assets, merger, corporate
reorganization, or otherwise).
9.Applicable Law. The provisions of this Agreement shall be
construed in accordance with the laws of the State of Louisiana.
10.Arbitration. In the event there is a dispute arising under
this Agreement, the parties will submit their dispute to
arbitration in New Orleans for final resolution in accordance
with the rules and procedures of the American Arbitration
Association. If Executive prevails, FCOM or Central shall pay
all costs incurred by him as a result of the arbitration.
11.Entire Agreement. This document constitutes the entire
agreement between the parties concerning the subject matter
hereof.
In witness whereof, Executive has hereunto set his hand, and FCOM
and Central have each on its behalf caused these presents to be
executed on the day and year first written above.
By: ___________________________________
Ian Arnof
Chief Executive Officer
First Commerce Corporation
By: ___________________________________
Central Bank
By: ___________________________________
Edmond L. Pennington
Exhibit V
[SEVERANCE PLAN OF CENTRAL]
Exhibit VI
AFFILIATE AGREEMENT
First Commerce Corporation
210 Baronne St.
New Orleans, LA 70112
Ladies and Gentlemen:
I am a shareholder of Central Corporation ("Central") and
will become a shareholder of First Commerce Corporation ("FCC")
pursuant to an Agreement and Plan of Merger dated as of May 15,
1995 (the "Agreement") between FCC and Central pursuant to which
Central will merge into FCC (the "Merger").
1. Affiliate Status; Accounting and Tax Treatment. I
understand that I may be an "affiliate" of Central within the
meaning of Rule 145(c) of the Securities and Exchange Commission
("SEC"), that FCC intends to account for the Merger as a pooling
of interests; and that FCC intends to treat the Merger as a tax-
free reorganization under Section 368 of the Internal Revenue
Code (the "Code").
2. Covenants and Warranties. I represent, warrant, and
agree that:
(a) The shares of FCC received by me in connection with
the Merger ("FCC Shares") will be taken for my own account and
not for others.
(b) Without the prior written consent of FCC, I will
not, except by operation of law, by will or under the laws of
descent and distribution, sell, transfer, or otherwise dispose of
my interests in, or reduce my risk relative to, any of the shares
of my Common Stock of Central ("Central Stock") or any FCC Shares
into which my shares of Central Stock are converted upon
consummation of the Merger until FCC notifies me that the
requirements of SEC Accounting Series Release Nos. 130 and 135
have been met. I understand that such releases relate to
publication of financial results of post-Merger combined
operations of FCC and Central, and FCC agrees that it will
publish such results as soon as may be practicable and consistent
with its past practices after the end of the first fiscal quarter
of FCC containing the required period of post-Merger combined
operations and that it will notify me promptly following such
publication.
(c) I understand that any distribution by me of the FCC
Shares has not been registered under the Securities Act of 1933
("1933 Act") and that, except as may otherwise be expressly
provided hereinbelow, FCC is not obligated to register any
disposition of my FCC Shares. I agree that the FCC Shares
distributed to me will not be sold or otherwise transferred, nor
may I reduce my risks relative thereto in any way, unless (1)
covered by an effective registration statement under the 1933
Act, (2) in accordance with Rule 145(d), or (3) in accordance
with a legal opinion satisfactory to counsel for FCC that such
sale or transfer is otherwise exempt from registration.
(d) I am aware that FCC intends to treat the Merger in
a manner consistent with Section 368 of the Code. I acknowledge
that applicable tax regulations require "continuity of interest"
in order for the Merger to qualify under Section 368. This
requirement is satisfied if, taking into account those
shareholders of Central who receive cash, there is no plan or
intention on the part of the shareholders of Central to sell or
otherwise dispose of the FCC Shares to be received in the Merger
in an aggregate amount that would reduce their ownership to a
number of FCC Shares having an aggregate value, at the time of
the Merger, of less than 50% of the total fair market value of
the Central Stock (other than shares held by Central or any
subsidiary of Central except in a fiduciary capacity for third
persons) outstanding immediately prior to the Merger. I have no
plan or intention to dispose of a number of FCC Shares to be
received by me in the Merger which would, taking into account any
plan or intention on the part of other former shareholders of
Central or Bank to dispose of FCC Shares received in the Merger,
cause the foregoing requirement not to be satisfied.
3. Legend. I understand that FCC will give stop transfer
instructions to its transfer agent for any transfer or attempted
transfer of FCC Shares in violation of this Affiliate Agreement,
and that the following legend will be placed on my certificates:
The shares represented hereby were issued in a merger accounted
for as a "pooling of interests" and may not be sold, nor may the
holder reduce his risks relative thereto in any way, until First
Commerce Corporation ("FCC") has published financial results
covering at least 30 days of combined operations after the
merger's effective date. In addition, the shares may not be
sold, transferred, or otherwise disposed of unless (1) covered by
an effective registration statement under the Securities Act of
1933, (2) in accordance with Rule 145(d) under such Act, or (3)
in accordance with a legal opinion satisfactory to counsel for
FCC that such disposition is exempt from registration.
Such legend will also be placed on any certificate representing
FCC securities issued after original issuance of the FCC Shares
as a result of any stock dividend, split, or other
recapitalization, as long as the FCC Shares themselves contain
such legend. Upon my request, FCC will cause the certificates to
be reissued free of the first sentence of the legend as soon as
practicable after it becomes inapplicable. In addition, if Rule
145 is amended to eliminate restrictions applicable to the FCC
Shares or at the expiration of the restrictive period in
Rule 145(d) or if such restrictions should otherwise cease to be
applicable, FCC, upon my request, will cause the certificates to
be reissued free of the second sentence of the legend upon
receipt by FCC of an opinion of counsel satisfactory to it that
such legend may be removed.
4. Understanding of Requirements. I have carefully read
the Agreement and this Affiliate Agreement and discussed their
requirements and impact with my or Central's counsel.
5. Transfer Under Rule 145(d). If I desire to sell,
transfer or otherwise dispose of any FCC Shares during the
restrictive period set forth in Rule 145(d), I will provide the
necessary representation letter to FCC's transfer agent together
with such additional information as the transfer agent may
reasonably request. FCC will request its transfer agent to send
a copy of such representation letter and other information to
FCC's counsel. If FCC's counsel concludes that such proposed
disposition complies with Rule 145(d) or another available
exemption, FCC shall request such counsel, at FCC's expense, to
provide such opinions as may be necessary to FCC's transfer agent
so that I may complete the proposed disposition. If such counsel
is unable to so conclude, such counsel will immediately notify me
of the reasons and of any action that would enable such counsel
to conclude that such proposed disposition complies with Rule
145(d) or another available exemption.
6. Other Persons. I recognize and agree that the
foregoing provisions also apply to (i) my spouse, (ii) any
relative of me or of my spouse who shares my home, (iii) any
trust or estate in which I, my spouse, and any such relative
collectively own at least a 10% beneficial interest or of which
any of the foregoing serves as trustee, executor, or in any
similar capacity, and (iv) any corporation or other organization
in which I, my spouse and any such relative collectively own at
least 10% of any class of equity securities or of the equity
interest.
7. Limited Registration Rights. I understand that I will
have the limited registration rights described on Schedule I to
this Affiliate Agreement.
8. Miscellaneous. Any notice required to be sent to any
party hereunder shall be sent by registered or certified mail,
return receipt requested, using the addresses set forth herein or
such other address as shall be furnished in writing by the
parties. This Affiliate Agreement shall be governed by the laws
of the State of Louisiana.
This Affiliate Agreement is executed as of the ______ day of
_________________, 1995.
Very truly yours,
___________________________________
Signature
___________________________________
Print Name
___________________________________
___________________________________
___________________________________
Address
AGREED TO AND ACCEPTED
as of__________________, 1995
FIRST COMMERCE CORPORATION
By: ___________________________
Schedule I to Exhibit VI
REGISTRATION RIGHTS
If, and only if, the FCC Shares (defined in the Affiliate
Agreement to which this document is annexed as Schedule I)
received by the affiliate identified in such Affiliate Agreement
(the "Affiliate") are subject to the holding period of
Rule 144(d) and by reason thereof do not qualify for sale under
Rule 145(d), or the SEC takes the position that they are so
subject and therefore do not so qualify, then the Affiliate shall
have, but only for so long as such FCC Shares are so subject to
such holding period and by reason thereof do not qualify for sale
under Rule 145(d), or the SEC takes that position, the following
registration rights.
FCC shall, if requested by the Affiliate, as expeditiously
as practicable file a registration statement on a form of general
use under the Securities Act of 1933 ("Securities Act") or a
post-effective amendment to the registration statement relating
to the merger if necessary in order to permit the sale or other
disposition of the shares of Common Stock acquired pursuant to
the Merger in accordance with the intended method of sale or
other disposition requested by the Affiliate. The Affiliate
shall provide all information reasonably requested by FCC for
inclusion in any registration statement or post-effective
amendment to be filed hereunder. FCC will use its reasonable
best efforts to cause such registration statement or post-
effective amendment to become and remain effective, as provided
below, and to provide the Affiliate with copies of prospectuses
thereunder and any necessary supplements thereto meeting the
requirements of the Securities Act. In the event that any such
registration statement or post-effective amendment is requested,
FCC will enter into an indemnification agreement with the
Affiliate in customary form with respect to the information
included therein, and will enter into such other customary
agreements (including underwriting agreements in customary form)
and take all such other actions as the Affiliate or any
underwriters reasonably request in order to expedite or
facilitate the disposition of such FCC Shares, and take any
actions necessary to register or qualify such FCC Shares under
such other securities or Blue Sky laws as the Affiliate shall
reasonably request. All action required hereunder shall be at
FCC's expense, except that the Affiliate will be responsible for
all brokerage commissions or underwriting discounts and
commissions and all fees and expenses of its own counsel and of
the underwriters and their counsel (to the extent normally
reimbursable to them) incurred in connection therewith. Upon
receiving any request from the Affiliate hereunder, FCC agrees to
send a copy of the registration statement to the Affiliate by
promptly mailing the same, postage prepaid, to the address of
record of the Affiliate.
FCC shall not be obligated to file a registration statement
hereunder if:
(a)a registration statement (other than one effected solely
to implement an employee benefit plan) covering any securities of
FCC has become effective within the preceding ninety days;
(b)at the time of the request or at any time before the
registration statement becomes effective, Form S-3 or its then
equivalent may not be used by FCC, or financial statements or
data of FCC or of any other entity would be required to be
included in such registration statement which are not included in
FCC's latest annual report on Form 10-K or quarterly report on
Form 10-Q; or
(c)FCC shall furnish to the Affiliate a certificate signed
by its President stating that in the good faith judgment of the
Board of Directors of FCC (or Executive Committee thereof) it
would be seriously detrimental to FCC or its shareholders for a
registration statement to be filed in the near future, in which
case the term of FCC's obligation hereunder shall be extended for
six months.
FCC shall use its best efforts to continue any registration
statement filed pursuant hereto in effect for at least ninety
days or, if earlier, until the date on which counsel for FCC
shall determine, and shall provide Affiliate and FCC with an
opinion to the effect, that Affiliate's FCC Shares can be sold,
transferred, and otherwise disposed of without regard to the
holding period of Rule 144(d), provided, however, that:
(a)a registration statement filed in connection with a firm
commitment underwritten public offering of the shares covered by
the request shall be kept effective until the earlier of ninety
days following the effective date or the completion of such
offering;
(b)FCC shall not be required to keep the registration
statement in effect after the occurrence of an event which would
require the inclusion therein of financial statements of FCC or
any other person which are not included in the latest annual
report on Form 10-K or quarterly report on Form 10-Q of FCC; and
(c)the Affiliate will not effect sales of any of the
Affiliate's FCC Shares included in such registration statement
after receipt of telegraphic or written notice from FCC to
suspend sales to permit FCC to correct or update a registration
statement or prospectus, but the obligation to maintain the
registration statement in effect shall be extended by a period of
days equal to the period such suspension is in effect.
The registration rights provided for herein may be exercised
by you but twice during the term of this Agreement. Such rights
shall be deemed to have been exercised by you if either (i) any
of your shares have been included at your request in any
registration statement filed by FCC which has been declared
effective or (ii) the shares of any other affiliate who has
executed an Affiliates Agreement substantially the same as the
one to which this Schedule I is attached have been included in
such a registration statement and you received notice of such
registration statement and were given an opportunity to include
your FCC Shares therein. This Agreement shall terminate two
years after the Merger.
FIRST COMMERCE CORPORATION
By: _______________________________
Exhibit VII
INSIDER'S COMMITMENT
This Insider's Commitment ("Agreement") is entered into as
of May 15, 1995 between the undersigned and First Commerce
Corporation ("FCC").
FCC and Central Corporation ("Central") propose to enter
into an Agreement and Plan of Merger (the "Plan"), which provides
for the merger of Central into FCC (the "Merger"). I am an
executive officer of Central and/or a member of Central's Board
of Directors and/or own such number of shares of common stock of
Central (the "Central Shares") that I will receive 5% or more of
the total number of shares of common stock of FCC to be issued in
the Mergers. In order to induce FCC to enter into the Plan, I am
entering into this Agreement with FCC.
1. Without FCC's prior consent, I will not transfer any
Central Shares except transfers (i) by operation of law, by will,
or pursuant to the laws of descent and distribution, (ii) in
which the transferee agrees in writing to be bound by paragraphs
1 and 2 of this Agreement as fully as I, or (iii) to FCC pursuant
to the Plan. Without limiting the generality of the foregoing, I
will not grant any option or right to acquire the Central Shares
or any interest therein or approve or ratify any agreement
pursuant to which the Central Shares would be transferred as a
result of a consolidation, merger, share exchange, or
acquisition. Without FCC's prior written consent, which will not
be unreasonably withheld, I will not deliver any proxy that
pertains to any Central Shares except a proxy that requires the
Central Shares to be voted in accordance with this Agreement.
2. I will vote (or cause to be voted) all of the Central
Shares over which I have voting authority (other than in a
fiduciary capacity) (i) for the Plan, (ii) against any share
exchange, merger (other than the Merger), consolidation, sale of
substantial assets, recapitalization or liquidation of or by
Central and (iii) against any amendment of Central's Articles of
Incorporation or Bylaws or other proposal involving Central or
any of its subsidiaries, which would in any manner impede or
prevent the Merger. The voting agreement contained in this
Section 2 is entered into solely in my capacity as a beneficial
owner (other than in a fiduciary capacity) of Central Shares and
not in my capacity as a director or officer of Central or in any
other fiduciary capacity. Such voting agreement may be
terminated by me if my compliance with it would breach my
fiduciary duties as a director and/or officer of Central. No
such termination shall affect any of my other agreements in this
Agreement.
3. I acknowledge that the effect of the Merger will be,
among other things, the transfer of the goodwill of Central to
FCC. I agree that, for a period of two years after the effective
time of the Merger, I will refrain from carrying on or engaging
in, as a consultant to, or management official of, a business
similar to the business conducted prior to the Merger by Central
and/or its subsidiary, Central Bank (and conducted thereafter by
Central Bank as a subsidiary of FCC) or from soliciting customers
of the business of Central Bank, in each such case within the
Parishes of Ouachita, Lincoln, Rapides and Natchitoches, so long
as Central Bank carries on a like business therein. The
foregoing restriction shall not apply to advisory relationships
with a financial institution which I had as of, and may have
after, the date hereof solely as legal counsel, accountant,
investment advisor or broker/dealer. As used herein, "financial
institution" includes any bank, savings and loan association or
similar institution that accepts deposit and makes loans, or a
holding company for such a bank, savings bank or similar
institution, or any person or entity that after the date hereof
applies to an appropriate regulatory authority to organize such a
bank, savings and loan association or similar institution, or as
a holding company thereof, and (ii) "management official" means
an employment position of an officer or with the responsibilities
of an officer or giving me authority to participate in policy-
making functions of the financial institution. If this paragraph
exceeds in duration or scope that permitted by applicable law, it
shall be reduced to the maximum that is permitted. This
paragraph is severable from, and shall be deemed to be a separate
agreement from, the remainder of this Agreement, so that no
invalidity of this paragraph shall in any manner affect such
other provisions.
4. I agree that my sole right to indemnification and
insurance, following the Merger, from FCC (as successor to
Central) or Central Bank, in connection with any claims, suits,
proceedings, investigations or other actions, and any related
losses, damages, costs, expenses, liabilities or judgments, to
which I am or may become a party or may be subjected by reason of
the fact that, at any time prior to the Effective Time of the
Merger, I am or have been a director or officer or employee of
Central or Central Bank or any other entity at their request,
shall be the rights provided in section 4.5 of the Plan and I
relinquish, effective at the Effective Time, all other such
rights, howsoever arising.
5. I acknowledge and agree that FCC could not be made
whole by monetary damages if I breach this Agreement. It is
accordingly agreed and understood that FCC in addition to any
other remedy which it may have at law or in equity, shall be
entitled to an injunction or injunctions to prevent breaches of
this Agreement and specifically to enforce it.
6. This Agreement will terminate upon any termination of
the Plan or upon any material amendment of the Conversion Ratio
under the Plan.
IN WITNESS WHEREOF, this Agreement has been duly executed
and delivered as of the day and year first above written.
NAME:_____________________________
(Please print or type)
FIRST COMMERCE CORPORATION
By:__________________________________
Exhibit VIII-A
The opinion letter referred to in Section 8.11 of the
Agreement from counsel for Central shall state that:
(i) Central and Central Bank are duly organized,
validly existing and in good standing under the laws of
Louisiana, have all requisite corporate power and authority to
own and lease the property described as being owned and leased by
them in the Joint Proxy Statement and to carry on the business
described as being carried on by them in the Joint Proxy
Statement;
(ii) the execution, delivery and performance of this
Agreement and the Merger Agreement have been duly authorized by
the Board of Directors and shareholders of Central and all
corporate acts and other corporate proceedings required by the
laws of Louisiana or of the United States on the part of Central
for the due and valid authorization, execution, delivery and
performance of this Agreement and the Merger Agreement, and the
consummation of the Merger, have been validly taken. Upon the
filing of the fully executed, certified and acknowledged Merger
Agreement with the Secretary of State of Louisiana, the Merger
will be effective as of the Effective Time;
(iii) this Agreement and the Merger Agreement are the
legal, valid and binding obligations of Central and are
enforceable against Central in accordance with their respective
terms, except as such enforcement may be limited by bankruptcy,
reorganization, insolvency and other similar laws and court
decisions relating to or affecting the enforcement of creditors'
rights generally, and except as to the availability of specific
performance, injunction or other equitable remedies or remedies
that under Louisiana law are similar to equitable remedies in
jurisdictions recognizing a distinction between law and equity;
(iv) neither the execution, delivery or performance
of this Agreement or the Merger Agreement by Central, nor the
consummation of the transactions contemplated hereby or thereby,
will violate, conflict with or result in a breach of any
provision of the articles of incorporation (or association) or
by-laws of Central or Central Bank;
(v) the authorized capital stock of Central and
Central Bank are as set forth in Schedule 5.2(a) to this
Agreement and Section 5.3 of this Agreement, respectively, and
all shares described therein as issued and outstanding have been
duly authorized and validly issued, and are fully paid and non-
assessable. To such counsel's knowledge, except as contemplated
in this Agreement there are no outstanding options, warrants,
contracts or commitments entitling any person to purchase or
otherwise acquire from Central or Central Bank any shares of its
capital stock; nor to such counsel's knowledge has Central or
Central Bank any outstanding obligation with respect to its
unissued capital stock or treasury stock, nor any outstanding
obligation to repurchase, redeem or otherwise acquire any of its
outstanding shares of capital stock.
In addition, such counsel shall state that they have
examined various documents and records and participated in
conferences with representatives of FCC and representatives of
Central, at which time the contents of the Registration
Statement, the Joint Proxy Statement and related matters were
discussed, and that they have also examined the opinions and the
documents delivered at the closing. Such counsel shall further
state that they are not passing upon and assume no responsibility
for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Joint Proxy
Statement, but that, subject to the foregoing, no facts have come
to their attention which lead them to believe that the
Registration Statement (including the documents incorporated by
reference therein pursuant to Item 11 of Form S-4) at the time
such Registration Statement became effective contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or the Joint Proxy Statement as of its
date and the date of its distribution to stockholders (including
the documents incorporated by reference therein pursuant to
Item 11 of Form S-4) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statement therein, in light of
the circumstances under which they were made, not misleading,
except that such counsel need not express any belief with respect
to the financial statements and schedules and other financial
data included or incorporated by reference in the Registration
Statement or Joint Proxy Statement.
In connection with such opinion such counsel may rely as to
factual matters on certificates of officers of Central and
Central Bank, and such counsel's knowledge shall mean its actual
knowledge as such counsel.
[The opinions in clauses (i) through (v) shall be given by
Louisiana counsel for Central. The statement in the second
preceding paragraph shall be made by Central's special merger
counsel.]
Exhibit VIII-B
The opinion letter referred to in Section 8.11 of the
Agreement from counsel for FCC shall state that:
(i) FCC is duly organized, validly existing and in
good standing under the laws of Louisiana, has all requisite
corporate power and authority to own and lease the property
described as being owned and leased by it in the Joint Proxy
Statement and to carry on the business described as being carried
on by it in the Joint Proxy Statement;
(ii) the execution, delivery and performance of this
Agreement and the Merger Agreement have been duly authorized by
the Board of Directors and shareholders of FCC and all corporate
acts and other corporate proceedings required by the laws of
Louisiana or of the United States on the part of FCC for the due
and valid authorization, execution, delivery and performance of
this Agreement and the Merger Agreement, and the consummation of
the Merger, have been validly taken. Upon the filing of the
fully executed, certified and acknowledged Merger Agreement with
the Secretary of State of Louisiana, the Merger will be effective
as of the Effective Time;
(iii) this Agreement and the Merger Agreement are the
legal, valid and binding obligations of FCC and are enforceable
against FCC in accordance with their respective terms, except as
such enforcement may be limited by bankruptcy, reorganization,
insolvency and other similar laws and court decisions relating to
or affecting the enforcement of creditors' rights generally, and
except as to the availability of specific performance, injunction
or other equitable remedies or remedies that under Louisiana law
are similar to equitable remedies in jurisdictions recognizing a
distinction between law and equity;
(iv) neither the execution, delivery or performance
of this Agreement or the Merger Agreement by FCC, nor the
consummation of the transactions contemplated hereby or thereby,
will violate, conflict with or result in a breach of any
provision of the articles of incorporation or by-laws of FCC;
(v) the authorized capital stock of FCC is as set
forth in Schedule 5.2(a) to this Agreement, and all shares of FCC
Common Stock to be issued to holders of Central Common Stock will
be, when issued as described in this Agreement and the
Registration Statement, duly authorized and validly issued, fully
paid and non-assessable; and
(vi) the Registration Statement has become effective,
and, to such counsel's knowledge, no stop order suspending its
effectiveness has been issued nor have any proceedings for that
purpose been instituted.
In addition, such counsel shall state that they have
examined various documents and records and participated in
conferences with representatives of FCC and representatives of
Central, at which time the contents of the Registration
Statement, the Joint Proxy Statement and related matters were
discussed, and that they have also examined the opinions and the
documents delivered at the closing. Such counsel shall further
state that they are not passing upon and assume no responsibility
for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Joint Proxy
Statement, but that, subject to the foregoing, no facts have come
to their attention which lead them to believe that the
Registration Statement (including the documents incorporated by
reference therein pursuant to Item 11 of Form S-4) at the time
such Registration Statement became effective contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or the Joint Proxy Statement as of its
date and the date of its distribution to stockholders (including
the documents incorporated by reference therein pursuant to
Item 11 of Form S-4) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statement therein, in light of
the circumstances under which they were made, not misleading,
except that such counsel need not express any belief with respect
to the financial statements and schedules and other financial
data included or incorporated by reference in the Registration
Statement or Joint Proxy Statement.
In connection with such opinion such counsel may rely as to
factual matters on certificates of officers of FCC, and such
counsel's knowledge shall mean its actual knowledge as such
counsel.