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Exhibit 2(a)
AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This AMENDMENT (the "Amendment") to the AGREEMENT AND PLAN OF
MERGER dated as of July 5, 1995 (the "Agreement"), between First American
Corporation, a Tennessee corporation ("FAC") and First City Bancorp, Inc., a
Tennessee corporation ("FCBI") is made and entered as of February 2, 1996.
W I T N E S S E T H:
WHEREAS, the parties hereto have heretofore entered into the Agreement
and desire to amend the Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
1. Section 2.1(b) entitled "Conversion of FCBI Common Stock" is
hereby amended by substituting "third trading" for "fifth" in the sixteenth
line thereof.
Section 2.1(b) entitled "Conversion of FCBI Common Stock" is
hereby amended to delete the following phrase in the fifth and sixth lines
thereof "if the Average Closing Price is between $31.40 and $41.70", and to
delete the following:
"If the Average Closing Price is greater than $41.70, then FAC
shall have the right to notify FCBI on the first day following
the end of the Measurement Period of its election to terminate
the Agreement effective three days thereafter unless the
Exchange Ratio is reduced to $26.50 divided by the Average
Closing Price, and in that event this Agreement will terminate
at the close of business on such third day unless prior
thereto FCBI shall have agreed to such reduction in the
Exchange Ratio. If the Average Closing Price is less than
$31.40, then FCBI shall have the right to notify FAC on the
first day following the end of the Measurement Period of its
election to terminate this Agreement effective three days
thereafter unless the Exchange Ratio is increased to $26.50
divided by the Average Closing Price, and in that event this
Agreement will terminate at the close of business on such
third day unless prior thereto FAC shall have agreed to such
increase in the Exchange Ratio."
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Section 2.1(b) entitled "Conversion of FCBI Common Stock" is
hereby amended to add the following:
"Notwithstanding the foregoing, if the Average Closing Price
is greater than $44.06, then the Exchange Ratio shall be
determined by dividing $28.00 by the Average Closing Price;
provided that in such event the Exchange Ratio shall not be
less than .6000 shares of FAC Common Stock per share of FCBI
Common."
so that Section 2.1(b) shall read in its entirety as follows:
(b) Conversion of FCBI Common Stock. Subject to Section
2.2(a), each issued and outstanding share of FCBI Common Stock
(other than shares to be canceled in accordance with Section
2.1(a)) shall, by virtue of this Agreement and without any
action on the part of the holder thereof, be converted into
and exchangeable for the right to receive the number of fully
paid and nonassessable shares of FAC Common Stock rounded to
the nearest thousandth of a share, determined by dividing
$26.50 by the Average Closing Price, as defined below (the
"Exchange Ratio") including the corresponding number of rights
associated with the FAC Common Stock pursuant to the FAC
Rights Agreement (as defined in Section 3.2(b)) provided, that
except as set forth below, the Exchange Ratio shall not exceed
.8440 shares of FAC Common per share of FCBI Common and shall
not be less than .6355 shares of FAC Common per share of FCBI
Common. The Average Closing Price shall mean the average
closing sale price per share of FAC Common Stock on the NASDAQ
national market system (as reported in The Wall Street
Journal, or if not reported thereby, any other authoritative
source) for the twenty (20) consecutive trading days ending on
and including the third trading day immediately preceding
closing (the "Measurement Period").
Notwithstanding the foregoing, if the Average Closing Price is
greater than $44.06, then the Exchange Ratio shall be
determined by dividing $28.00 by the Average Closing Price;
provided that in such event the Exchange Ratio shall not be
less than .6000 shares of FAC Common Stock per share of FCBI
Common.
In the event that prior to the Effective Time the outstanding
shares of FAC Common Stock have been increased, decreased,
changed into or exchanged for a different number or kind of
shares through a reorganization, reclassification, stock
dividend, stock split, reverse stock split or other similar
change applicable adjustments shall be made to the Average
Closing Price and the maximum and minimum number of shares to
be exchanged.
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All such shares of FCBI Common Stock shall no longer be
outstanding and shall automatically be canceled and retired
and shall cease to exist, and each certificate previously
representing any such shares shall thereafter represent the
shares of FAC Common Stock into which FCBI Common Stock has
been converted and the right to cash payment for fractional
shares, if any. Certificates previously representing shares
of FCBI Common Stock shall be exchanged for certificates
representing whole shares of FAC Common Stock issued in
consideration therefor and cash for fractional shares, if any,
upon the surrender of such certificates in accordance with
Section 2.2.
2. Sections 2.1(b), (c), (d) and (e), respectively entitled
Conversion of FCBI Series A Preferred Stock, Conversion of FCBI Stock Options,
No Dissenters Rights and Shares of FAC Common Stock are hereby renumbered
Sections 2.1 (c), (d), (e) and (f), respectively.
3. The following language is hereby deleted from Section 4.2(c):
"provided that in the event that the Closing does not occur on
or before February 29, 1996 if as the result of action or
inaction on the part of FAC, FCBI may (to the extent allowable
under applicable law) accrue, declare and pay as a special
dividend on shares of FCBI Common Stock, an amount equal to
the difference between the FCBI dividend paid in the first and
succeeding calendar quarters of 1996 and the dividend which
would have been declared during the first and succeeding
calendar quarters of 1996 by FAC on the shares of FAC Common
Stock which would have been issuable in exchange for shares
FCBI Common Stock had Closing occurred on February 29, 1996;"
4. Section 7.1(3)(e) is hereby deleting in its entirety.
5. Section 7.1(4)(c) is hereby deleted in its entirety.
6. Section 1.1 entitled "Effective Time of the Merger" is hereby
amended to read in its entirety as follows:
Subject to the provisions of this Agreement, articles of
merger (the "Articles of Merger") including a plan of merger
consistent with this Agreement shall be duly prepared,
executed and acknowledged by the Surviving Corporation (as
defined in Section 1.3(b)) and thereafter delivered to the
Secretary of State of the State of Tennessee, for filing, as
provided in the Tennessee Business Corporation Act (the
"TBCA"), as soon as practicable on or after the Closing Date
(as defined in Section 1.2). The Merger shall become
effective upon the filing of the Articles of Merger with the
Secretary of State of the State of Tennessee or at such time
thereafter as is provided in the Articles of Merger (the
"Effective Time").
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7. Section 1.2 entitled "Closing" is hereby amended to read in
its entirety as follows:
The closing of the Merger (the "Closing") will take place at
10:00 a.m. Central Time on the first business day following
the satisfaction (or waiver) of each of the conditions set
forth in Sections 6.1, 6.2 and 6.3 (other than the delivery of
the officers' certificate referred to in Sections 6.2(b) and
6.3(b) (provided that the other closing conditions set forth
in Article VI have been met or waived as provided in Article
VI at or prior to the Closing (the "Closing Date"), at the
offices of FAC, First American Center, Nashville, Tennessee
37237, unless another time, date or place is agreed to in
writing by the parties hereto.
8. Capitalized terms, not specifically defined herein shall have
the meanings ascribed to them in the Agreement.
9. This Amendment shall become effective retroactively to the
execution of the Agreement. Except as expressly provided above, all of the
terms and conditions of the Agreement shall remain unchanged and in full force
and effect.
IN WITNESS WHEREOF, FAC and FCBI have caused this Amendment to be
signed by their respective officers thereunto duly authorized, all as of
February 2, 1996.
FIRST AMERICAN CORPORATION
BY:/s/ Dennis C. Bottorff
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Dennis C. Bottorff
Chairman and Chief Executive Officer
Attest:
/s/ Mary Neil Price
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Mary Neil Price
Title: Assistant Secretary
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FIRST CITY BANCORP, INC.
BY: /s/ William E. Rowland
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William E. Rowland
President and Chief Executive Officer
Attest:
/s/ Debbie Ferrell
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Debbie Ferrell
Title: Assistant Vice President