AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is
made and entered into as of this 12th day of June, 1997, by and
between UNITED COMMUNITY BANKS, INC. ("United") and FIRST CLAYTON
BANCSHARES, INC. ("Clayton"), both Georgia corporations (said
corporations are hereinafter collectively referred to as the
"Constituent Corporations").
R E C I T A L S:
WHEREAS, the authorized capital stock of United
consists of 10,000,000 shares of Common Stock, $1.00 par value
per share (the "United Stock"), of which 6,887,248 shares are
issued and outstanding; and
WHEREAS, the authorized capital stock of Clayton
consists of 10,000,000 shares of Common Stock, $1.00 par value
per share, of which 400,691 shares are issued and outstanding and
5,000,000 shares of special stock $1.00 par value per share, none
of which is issued and outstanding ("Clayton Stock"); and
WHEREAS, the respective Boards of Directors of the
Constituent Corporations deem it advisable and in the best
interests of each such corporation and its shareholders that
Clayton merge with United, with United being the surviving
corporation; and
WHEREAS, the respective Boards of Directors of the
Constituent Corporations, by resolutions duly adopted, have
unanimously approved and adopted this Agreement, and the Board of
Directors of Clayton, by resolution duly adopted, has directed
that this Agreement be submitted to the shareholders of Clayton
for their approval; and
WHEREAS, United has agreed to issue shares of United
Stock which shareholders of Clayton will be entitled to receive,
according to the terms and conditions contained herein, on or
after the Effective Date (as defined herein) of the merger
provided for herein.
NOW, THEREFORE, for and in consideration of the
premises and the mutual agreements herein contained, and other
good and valuable consideration, the receipt and adequacy of
which as legally sufficient consideration are hereby
acknowledged, the parties hereto have agreed and do hereby agree,
as follows:
1. MERGER.
Pursuant to and with the effects provided in the
applicable provisions of Article 11 of the Georgia Business
Corporation Code, as amended (Chapter 2 of Title 14 of the
Official Code of Georgia), Clayton (hereinafter sometimes
referred to as the "Merged Corporation") shall be merged with and
into United (the "Merger"). United shall be the surviving
corporation (the "Surviving Corporation") and shall continue
under the name "United Community Banks, Inc.". On the Effective
Date (as defined herein) of the Merger, the individual existence
of the Merged Corporation shall cease and terminate.
2. ACTIONS TO BE TAKEN.
The acts and things required to be done by the Georgia
Business Corporation Code in order to make this Agreement
effective, including the submission of this Agreement to the
shareholders of the Merged Corporation and the filing of the
Certificate of Merger relating hereto in the manner provided in
said Code, shall be attended to and done by the proper officers
of the Constituent Corporations with the assistance of counsel as
soon as practicable.
3. EFFECTIVE DATE.
The Merger shall be effective upon the approval of this
Agreement by the shareholders of the Merged Corporation and the
filing of the Certificate of Merger relating hereto in the manner
provided in the Georgia Business Corporation Code (the "Effective
Date").
4. ARTICLES OF INCORPORATION AND BYLAWS OF THE SURVIVING
CORPORATION.
(a) The Articles of Incorporation of United, as
heretofore amended, shall on the Effective Date be the Articles
of Incorporation of the Surviving Corporation.
(b) Until altered, amended or repealed, as therein
provided, the Bylaws of United as in effect on the Effective Date
shall be the Bylaws of the Surviving Corporation.
5. MANNER AND BASIS OF CONVERTING SHARES OF CAPITAL STOCK;
CAPITAL STRUCTURE OF THE SURVIVING CORPORATION.
The manner and basis of converting the shares of
capital stock of each of the Constituent Corporations into shares
of the Surviving Corporation shall be as follows:
(a) Upon the Effective Date each of the shares of
Clayton Stock outstanding on the Effective Date shall be
converted into fully paid and nonassessable shares of United
Stock at the rate of 1.6136 shares of United Stock for each
outstanding share of Clayton Stock. If either party should
change the number of its outstanding shares as a result of a
stock split, stock dividend, or similar recapitalization with
respect to such shares prior to the Effective Date then the
shares to be issued hereunder to holders of Clayton Stock shall
be proportionately adjusted.
(b) No scrip or fractional share certificates of
United Stock shall be issued in connection with the Merger and an
outstanding fractional share interest will not entitle the owner
thereof to vote, to receive dividends or to have any of the
rights of a shareholder with respect to such fractional interest.
In lieu of any fractional interest, there shall be paid in cash
an amount (computed to the nearest cent) equal to such fraction
multiplied by $22.00.
(c) As soon as practicable after the Effective Date,
each holder as of the Effective Date of any of the shares of
Clayton Stock, upon presentation and surrender of the
certificates representing such shares to United, shall be
entitled to receive in exchange therefor a certificate
representing the number of shares of United Stock to which such
shareholder shall be entitled according to the terms of this
Agreement. Until such surrender, each such outstanding
certificate which prior to the Effective Date represented Clayton
Stock shall be deemed for all corporate purposes to evidence
ownership of the number of shares of United Stock into which the
same shall have been converted and the right to receive payment
for fractional shares.
(d) Upon the Effective Date, each share of United
Stock issued and outstanding immediately prior to the Effective
Date shall continue unchanged and shall continue to evidence a
share of common stock of the Surviving Corporation.
6. TERMINATION OF SEPARATE EXISTENCE.
Upon the Effective Date, the separate existence of the
Merged Corporation shall cease and the Surviving Corporation
shall possess all of the rights, privileges, immunities, powers
and franchises, as well of a public nature as of a private
nature, of each of the Constituent Corporations; and all
property, real, personal and mixed, and all debts due on whatever
account, and all other choses in action, and all and every other
interest of or belonging to or due to each of the Constituent
Corporations shall be taken and deemed to be transferred to and
vested in the Surviving Corporation without further act or deed,
and the title to any real estate or any interest therein, vested
in either of the Constituent Corporations shall not revert or be
in any way impaired by reason of the Merger. The Surviving
Corporation shall thenceforth be responsible and liable for all
the liabilities, obligations and penalties of each of the
Constituent Corporations; and any claim existing or action or
proceeding, civil or criminal, pending by or against either of
said Constituent Corporations may be prosecuted as if the Merger
had not taken place, or the Surviving Corporation may be
substituted in its place, and any judgment rendered against
either of the Constituent Corporations may thenceforth be
enforced against the Surviving Corporation; and neither the
rights of creditors nor any liens upon the property of either of
the Constituent Corporations shall be impaired by the Merger.
7. FURTHER ASSIGNMENTS.
If at any time the Surviving Corporation shall consider
or be advised that any further assignments or assurances in law
or any other things are necessary or desirable to vest in said
corporation, according to the terms hereof, the title to any
property or rights of the Merged Corporation, the proper officers
and directors of the Merged Corporation shall and will execute
and make all such proper assignments and assurances and do all
things necessary and proper to vest title in such property or
rights in the Surviving Corporation, and otherwise to carry out
the purposes of this Agreement.
8. CONDITIONS PRECEDENT TO CONSUMMATION OF THE MERGER.
This Agreement is subject to, and consummation of the
Merger is conditioned upon, the fulfillment as of the Effective
Date of each of the following conditions:
(a) Approval of this Agreement by the affirmative vote
of the holders of a majority of the outstanding voting shares of
Clayton Stock; and
(b) All the terms, covenants, agreements, obligations
and conditions of the Agreement and Plan of Reorganization (the
"Acquisition Agreement") of even date herewith by and between
Clayton and United to be complied with, satisfied and performed
on or prior to the Closing Date (as defined therein), shall have
been complied with, satisfied and performed in all material
respects unless accomplishment of such covenants, agreements,
obligations and conditions has been waived by the party benefited
thereby.
9. TERMINATION.
This Agreement may be terminated and the Merger
abandoned in accordance with the terms of the Acquisition
Agreement, at any time before or after adoption of this Agreement
by the directors of either of the Constituent Corporations, not-
withstanding favorable action on the Merger by the shareholders
of the Merged Corporation, but not later than the issuance of the
certificate of merger by the Secretary of State of Georgia with
respect to the Merger in accordance with the provisions of the
Georgia Business Corporation Code.
10. COUNTERPARTS; TITLE; HEADINGS.
This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same
instrument. The title of this Agreement and the headings herein
set out are for the convenience of reference only and shall not
be deemed a part of this Agreement.
11. AMENDMENTS; ADDITIONAL AGREEMENTS.
At any time before or after approval and adoption by
the shareholders of Clayton, this Agreement may be modified,
amended or supplemented by additional agreements, articles or
certificates as may be determined in the judgment of the
respective Boards of Directors of the Constituent Corporations to
be necessary, desirable or expedient to further the purposes of
this Agreement, to clarify the intention of the parties, to add
to or modify the covenants, terms or conditions contained herein
or to effectuate or facilitate any governmental approval of the
Merger or this Agreement, or otherwise to effectuate or
facilitate the consummation of the transactions contemplated
hereby; provided, however, that no such modification, amendment
or supplement shall reduce to any extent the consideration into
which shares of Clayton Stock shall be converted in the Merger
pursuant to Section 5 hereof.
IN WITNESS WHEREOF, the Constituent Corporations have
each caused this Agreement to be executed on their respective
behalfs and their respective corporate seals to be affixed hereto
as of the day and year first above written.
UNITED COMMUNITY BANKS, INC.
(CORPORATE SEAL)
By:/s/ Jimmy Tallent
ATTEST: Jimmy Tallent
President
/s/ Billy M. Decker
Secretary
FIRST CLAYTON BANCSHARES, INC.
(CORPORATE SEAL)
By:/s/ J. Mark Smith
J. Mark Smith
ATTEST: President
/s/ Ronald E. Vindiver
Secretary