ANNEX A
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER Between
CNL FINANCIAL CORPORATION and
NEWCO MERGER COMPANY
Dated as of
August 9, 1994
TABLE OF CONTENTS
SECTION DESCRIPTION PAGE
ARTICLE 1 DEFINITIONS ................................................................................................... 2
ARTICLE 2 THE MERGER .................................................................................................. 3
2.1 Articles and Plan of Merger. ................................................................................ 3
2.2 Conversion of Shares; Effect on Capital Stock .................................................... 4
2.3 Funds; Surrender of Certificates; Payment .......................................................... 4
2.4 No Further Ownership Rights in Shares of Common Stock ................................ 5
2.5 Escheat Laws. ....................................................................................................... 5
ARTICLE 3 CLOSING ........................................................................................................... 5
3.1 Time and Place of Closing. .................................................................................. 5
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF CNL ................................ 6
4.1 Organization, Good Standing and Power. ............................................................ 6
4.2 Capitalization. ...................................................................................................... 6
4.3 Authority. ............................................................................................................. 6
4.4 Non-Contravention; Consents ................................................................................ 6
ARTICLE 5 ADDITIONAL REPRESENTATIONS, WARRANTIES AND
COVENANTS OF CNL .....................................................................................
7
5.1 Fairness Opinion. ................................................................................................. 7
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF NEWCO ......................... 8
6.1 Organization, Good Standing and Power ............................................................. 8
6.2 Capitalization ....................................................................................................... 8
6.3 Authority .............................................................................................................. 8
6.4 Consents ............................................................................................................... 8
ARTICLE 7 CERTAIN COVENANTS ................................................................................. 9
7.1 Covenants of CNL and NEWCO. ........................................................................ 9
7.2 Consents. .............................................................................................................. 9
7.3 Further Assurances. .............................................................................................. 9
7.4 Shareholder Approvals. ........................................................................................ 9
7.5 Tax Treatment. ..................................................................................................... 10
ARTICLE 8 CONDITIONS PRECEDENT TO MERGER ................................................ 10
8.1 Conditions to Each Party’s Obligations. .............................................................. 10
8.2 Conditions to Obligations of CNL. ...................................................................... 11
8.3 Conditions to Obligations of NEWCO. ............................................................... 11
Section DescriptionPage
ARTICLE 9 TERMINATION AND ABANDONMENT OF THE MERGER .................... 12
9.1 Termination. .......................................................................................................... 12
9.2 Effect of Termination. ........................................................................................... 13
ARTICLE 10 MISCELLANEOUS ............................................................................................ 13
10.1 Waiver and Amendment. ....................................................................................... 13
10.2 Survival of Representations, Warranties and Agreements. ................................... 13
10.3 Notices. .................................................................................................................. 13
10.4 Descriptive Headings. ............................................................................................ 14
10.5 Counterparts. .......................................................................................................... 15
10.6 Entire Agreement. .................................................................................................. 15
10.7 Governing Law. ..................................................................................................... 15
10.8 Assignment. ........................................................................................................... 15
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
THIS AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (the
“Agreement”) dated as of August 9, 1994 between CNL FINANCIAL CORPORATION, a
Georgia corporation (“CNL”), and NEWCO MERGER COMPANY, a Georgia corporation
(“NEWCO”).
WHEREAS, the Board of Directors of CNL believes that it is in CNL’s best interest to
eliminate the necessity for it to comply with the reporting and other Filing require ments of the
U.S. Securities and Exchange Commission (“SEC”) for public companies and to become a
private, non-reporting corporation;
WHEREAS, in order to become exempt from SEC reporting requirements, CNL must
reduce its number of stockholders to less than 300;
WHEREAS, the Board of Directors of CNL desires to reduce its number of stockholders
as described above by means of a statutory merger (the “Merger”) of CNL into NEWCO, a
newly-formed corporation wholly-owned by Don K. Miller, with CNL as the surviving
corporation (“Surviving Corporation”), and the purchase by CNL of stock held by CNL
shareholders who each own 500 shares or less of CNL;
WHEREAS, the Boards of Directors of CNL and NEWCO have approved the Merger,
the terms and provisions of this Agreement and the transactions contemplated hereby a nd have
recommended the approval of the foregoing to their respective shareholders;
WHEREAS, for federal income tax purposes, it is intended that the Merger shall qualify
as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986,
as amended (the “Code”); and
WHEREAS, the Boards of Directors of CNL and NEWCO believe that the transactions
described herein are in the best interest of CNL and NEWCO and their respective shareholders;
WHEREAS, the Board of Directors of CNL and NEWCO approved the Merger, subject
to shareholder approval, on March 23, 1994 and caused the Agreement and Plan of Merger
between CNL and NEWCO (the “Original Agreement”) to be executed on such date;
WHEREAS, due to the change of certain dates referenced in the Original Agreement,
CNL and NEWCO desire to amend and restate the Original Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual representations,
warranties, covenants and agreements herein contained, CNL and NEWCO agree as follows:
ARTICLE 1
DEFINITIONS
The following terms are defined in the Agreement in the paragraph and section numbers
listed beside each defined term:
DEFINED TERMS S E C T I O N
NUMBER
“Articles of Merger” 2.1
“Closing” 3.1
“Closing Date” 3.1
“CNL Employee Stock Ownership Piling” 7.1(b)
“CNL Proxy Statement” 7.4
“CNL Shareholders’ Meeting” 7.4
“CNL Stock” 2.2(a)
“Code” Recitals
“Determination Date” 2.2(a)
“Dissenting CNL Holders” 2.2(a)
“Effective Time” 2.1
“Exchange Act” 4.4(b)
“Fairness Opinion” 5.1
“Former Shareholder” 2.2(a)
“GBCC” 2.2(a)
“NEWCO Stock” 2.2(c)
“Merger” Recitals
“SEC” Recitals
“Securities Act” 4.4(b)
“Subsidiary” and “Subsidiaries” 4.1
“Surviving Corp-oration” Recitals
ARTICLE 2
THE MERGER
2.1 Articles and Plan of Merger. (a) Subject to the terms and conditions of this
Agreement, at the Effective Time (as hereinafter defined), NEWCO shall be m erged with and
into CNL in accordance with the Articles and Plan of Merger attached hereto a s Exhibit A (the
“Articles of Merger”). The filing of the Articles of Merger with the Secretary of Stat e of Georgia
shall be made as soon as practicable after the satisfactory completion of the Closing (as defined
in Article 3 below). The date and time when the Merger becomes effective is he rein referred to
as the “Effective Time.”
(b) Effectiveness of Merger. The Surviving Corporation shall, by virtue of the Merger
and in accordance with the GBCC, possess all of the properties and fights and be subject to all of
the liabilities of CNL and NEWCO and be governed by the laws of the State of Georgia. From
and after the Effective Time, the Merger shall have all the effects provided by applicable law.
(c) All Necessary Action. Subject to the terms and conditions hereof, the parties
hereto shall take all action necessary in accordance with applicable la w and their respective
articles of incorporation and bylaws to cause the Merger to be consummated as soon as i s
reasonably practicable.
(d) Articles of Incorporation. The Articles of Incorporation of CNL in effect
immediately prior to the Effective Time shall be the Articles of Incorporation of the Surviving
Corporation until thereafter amended in accordance with the provisions thereof and the GBCC.
(e) Bylaws. The Bylaws of CNL in effect immediately prior to the Effective Tim e
shall be the Bylaws of the Surviving Corporation until altered, amended or repealed as provided
therein, in the Articles of Incorporation of the Surviving Corporation or in the GBCC.
(f) Officers and Directors. The officers and directors of CNL immediately prior to
the Effective Time shall be the officers and directors of the Surviving Corporation unti l their
respective successors are duly elected and qualified.
2.2 Conversion of Shares; Effect on Capital Stock. As of the Effective Time, by
virtue of the Merger and without any further action on the part of NEWCO or CNL or their
respective shareholders:(a) Holders of 500 or Fewer Shares of CNL Common Stock. Except for shares of the
common stock of CNL (“CNL Stock”) owned by holders who have taken the necessary actions
and are entitled to dissent to the Merger pursuant to Section 14-2-1302 of the Georgia Business
Corporation Code as currently in effect and as amended from time to time aft er the date hereof
(“GBCC”), and do not waive or forfeit any of their rights to dissent after the Effective Time (the
“Dissenting CNL Holders”), each share of CNL Stock held of record by any shareholder of CNL
other than an officer or director of CNL as of September 7, 1994 (the “Determination Date ”)
who, according to the stock record books of CNL immediately prior to such Determination Date,
was a record holder of 500 or fewer shares of CNL Common Stock (each, a “Former
Shareholder”) shall be converted into, and shall thereafter represent the sole right to re ceive from
the Surviving Corporation, cash in an amount equal to $6.00 per share of CNL Stock.
(b) Holders of More Than 500 Shares of CNL Common Stock. Except for (i) the
shams of CNL Stock owned by Dissenting CNL Holders owning of record more than 500 such
shams at the applicable time, and (ii) the shares of CNL Stock owned by CNL’s officers and
directors, each share of CNL Stock held of record by any shareholder of CNL as of the
Determination Date who, according to the stock record books of CNL immediately prior to such
Determination Date, was a record holder of more than 500 shares of CNL Stock shall continue to
represent an equal number of shares of Surviving Corporation Common Stock after the Effective
Time. Any fractional shares of CNL Stock will be converted into the right to recei ve cash in an
amount equal to $6.00 per share of CNL Stock.
(c) Holders of NEWCO Common Stock. As of the Effective Time all NEWCO
common stock (“NEWCO Stock”) shall be converted into, and shall thereafter represent t he sole
right to receive from the Surviving Corporation, cash in an amount equal to $5.00 per sham of
Newco Common Stock.
(d) Dissenting Holders. Shares of CNL Stock owned by Dissenting CNL Holders
shall only be entitled to payment of the fair value of such shares to the extent permitted by and in
accordance with the provisions of the GBCC.
(e) Other Capital Stock. All CNL treasury shares shall be cancelled without any
payment therefor or other rights being granted with respect thereto. CNL Common Stock owned
by Cherokee National Life Insurance Company (“Cherokee”) shall remain issued in the nam e of
Cherokee and shall continue to be treated for all purposes as treated prior to the Merger.
2.3 Funds; Surrender of Certificates; Payment.
(a) At or prior to the Effective Time, the Surviving Corporation shall set aside funds
sufficient to make the payments to be made pursuant to the Articles of Merger to a pplicable
Former Shareholders and Dissenting CNL Holders using, for purposes hereof, a $6.00 valuation
for shares held by Dissenting CNL Holders.
(b) Promptly after the Effective Time, the Surviving Corporation shall cause to be
mailed to each person who is a Former Shareholder a letter of transmittal and i nstructions for use
in effecting the surrender of the certificates which, immediately prior to the E ffective Time,
represent shares of CNL Stock.
(c) Upon surrender to the Surviving Corporation of certificates representing shares of
CNL Stock held by Former Shareholders, together with such letter of transmittal, dul y executed
and completed in accordance with the instructions thereto, the Surviving Corporation shall
promptly pay to the persons entitled thereto the amount in cash to which such persons are
entitled hereunder. No interest will be paid or will accrue on the cash payable upon the surrender
of any such certificate.
(d) Certificates representing shares of CNL Stock held by persons other than Former
Shareholders shall continue to represent an identical number of shares of the Surviving
Corporation.
2.4 No Further Ownership Rights in Shares of Common Stock. Until surrendered as
contemplated by Section 2.3, each certificate representing any shares of CNL Stock hel d by
Former Shareholders (other than those held by Dissenting CNL Holders) shall be deemed at a ll
times after the Effective Time to represent only the right to receive upon such surrender $6.00
per share, without interest. If, after the Effective Time, certificates representi ng shares of CNL
Stock held by Former Shareholders are presented to the Surviving Corporation for any reason,
they shall be cancelled as provided in this Article 2.
2.5 Escheat Laws. Notwithstanding any other provision of this Article 2, the
Surviving Corporation shall not be liable to any holder of CNL Common Stock for any
Surviving Corporation Common Stock, or dividends or distributions thereon or cash in lieu of
fractional shares, delivered to a public official pursuant to applicable abandoned property,
escheat or similar laws.
ARTICLE 3CLOSING
3.1 Time and Place of Closing. Unless otherwise agreed by the parties hereto, the
closing of the transactions precedent to the Merger (the “Closing”) will be held as soon as
practicable after approval of the Merger by the shareholders of CNL and NEWCO (such date
being referred to hereinafter as the “Closing Date”) at the offices of Arnall Golden & Gregory,
First Liberty Bank Tower, 201 Second Street, Suite 1000, Macon, Georgia 31201 or at such
other place as may be agreed in writing between CNL and NEWCO. At the Closi ng, the
certificates, opinions and other evidences of satisfaction of the conditions set forth in Article 7
will be delivered by or on behalf of the parties hereto.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF CNL
CNL hereby represents and warrants to NEWCO as follows:
4.1 Organization, Good Standing and Power. CNL is a corporation duly organized
and validly existing under the laws of the State of Georgia, with all requisite corpora te power
and authority to own, lease and operate its properties and to carry on its business as now being
conducted. CNL is duly qualified to do business and is in good standing in each jurisdict ion in
which the nature of its business or the ownership or leasing of its properties makes such
qualification necessary, except where the failure to be so qualified or to be in good standing
would not have a material adverse effect on CNL and its Subsidiaries on a consolidat ed basis.
For purposes of this Agreement, a “Subsidiary” means any entity of which CNL (or NEWCO, as
applicable) owns or controls, directly or indirectly, more than 50% of the outstanding equity
securities.
4.2 Capitalization. The authorized and issued capital stock of CNL is set forth on
Schedule 4.2. All outstanding shares of CNL Stock have been duly authorized, and are validly
issued, fully paid and nonassessable. Except as set forth on Schedule 4.2, including any stock
options identified thereon, as of the date hereof, CNL has no convertible securities, options, or
other contracts, commitments, agreements, understandings, arrangements or restrictions by
which it is bound to issue any additional shares of its capital stock or other securities.
4.3 Authority. CNL has the corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby, subject to the approval of
this Agreement by its shareholders and the consents referred to in Section 4.4(b). Subject to such
approvals and consents, the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by al l necessary
corporate action on the part of CNL, and this Agreement constitutes the valid and binding
obligation of CNL, enforceable against it in accordance with its terms except a s such
enforceability (i) may be limited by bankruptcy, insolvency, moratorium or other simila r laws
affecting or relating to enforcement of creditors’ rights generally and (ii) is subject t o general
principles of equity.
4.4 Non-Contravention; Consents. (a) Neither the execution, delivery, or performance
by CNL of this Agreement, nor the consummation of the transactions contemplated hereby, nor
compliance by CNL with any of the provisions hereof, will: (i) violate, result in a breach of any provision of, constitute a default (or an
event that, with notice or lapse of time or both, would constitute a default) under, re sult in
the termination of, accelerate the performance required by, or result in a right of
termination or acceleration, or the creation of any lien, security interest, charge or
encumbrance upon any of the properties or assets of CNL, under any of the terms,
conditions, or provisions of, (x) its Articles of Incorporation or Bylaws, or (y) any note,
bond, mortgage, indenture, deed of trust, deed to secure debt, license, lease, agreement,
or other instrument or obligation to which CNL or any of its Subsidiaries is a party, or by
which CNL or any of its Subsidiaries may be bound, or to which CNL or any of its
Subsidiaries or the properties or assets of any of them may be subject, and that would, in
any such event, have a material adverse effect on the financial condition or results of
operations of CNL and its Subsidiaries on a consolidated basis; or
(ii) subject to compliance with the statutes and regulations referred to in
Section 4.4(b), violate any valid and enforceable judgment, ruling, order, writ, injunction,
decree, or any statute, rule or regulation applicable to CNL, or any of its Subsidiari es or
any of its properties or assets where such violation would prevent the consummation of
the Merger or have a material adverse effect on CNL or any of its Subsidiaries.
(b) Other than in connection or compliance with the provisions of the GBCC, the
Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securit ies
Act”), the Securities Exchange Act of 1934, as amended and the rules and regulations t hereunder
(“Exchange Act”) the securities or blue sky laws of the various states, and other than consent s,
authorizations, approvals, or exemptions required under any applicable insurance and insurance
holding company system statutes, 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 CNL
of the transactions contemplated by this Agreement.
ARTICLE 5
ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF CNL
CNL further represents, warrants and covenants to NEWCO as follows:
5.1 Fairness Opinion. The Board of Directors of CNL has received an opinion
(“Fairness Opinion”) from Valuation Counselors Group, Inc. dated March 23, 1994, to the effect
that as of such date the cash consideration to be received by certain Shareholders of CNL
pursuant to the Merger as provided in Section 2.2(a) of this Agreement is fair to the share holders
of CNL from a financial point of view. A copy of the Fairness Opinion will be attached t o the
CNL Proxy Statement and referred to therein.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF NEWCO
NEWCO hereby represents and warrants to CNL as follows:
6.1 Organization, Good Standing and Power. NEWCO is a corporation duly
organized and validly existing under the laws of the State of Georgia, with all requisi te corporate
power and authority to own, lease and operate its properties and to carry on its business as now
being conducted. NEWCO is duly qualified to do business and is in good standing in each
jurisdiction in which the nature of its business or the ownership or leasing of its properties ma kes
such qualification necessary, except where the failure to be so qualified or to be in good standing
will not have a material adverse effect on NEWCO.
6.2 Capitalization. NEWCO has 1,000 shares of authorized and 100 shares of issued
and outstanding common stock, no par value per share. All outstanding shares of NEWCO Stock
have been duly authorized, and are validly issued, fully paid and nonassessable. NEWCO has no
convertible securities, options, or other contracts, commitments, agreements, understandings,
arrangements or restrictions by which it is bound to issue any additional shares of its c apital
stock or other securities.
6.3 Authority. NEWCO has the corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby, subject to the approval of
this agreement by its shareholders and the consents referred to in Section 6.4. Subject t o such
approvals and consents, the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by al l necessary
corporate action on the part of NEWCO, and this Agreement constitutes the valid and binding
obligation of NEWCO, enforceable against it in accordance with its terms except as such
enforceability (i) may be limited by bankruptcy, insolvency, moratorium or other simila r laws
affecting or relating to enforcement of creditors’ rights generally and (ii) is subject t o general
principles of equity.
6.4 Consents. Other than in connection or compliance with the provisions of the
GBCC, the Securities Act, the Exchange Act, the securities or blue sky laws of the various states,
and other than consents, authorizations, approvals or exemptions required under any applicable
insurance and insurance holding company system statutes, no notice to, filing with, authoriza tion
of, exemption by, or consent or approval of any public body or authority is necessary for the
consummation by NEWCO of the transactions contemplated by this Agreement.
ARTICLE 7
CERTAIN COVENANTS
7.1 Covenants of CNL and NEWCO. (a) Each party to this Agreement agrees that
from the date hereof to the Effective Time, except as contemplated in t his Agreement or to the
extent that the other party shall otherwise consent in writing, such party will, and wi ll cause its
Subsidiaries to, operate its and their business only in the ordinary course.
(b) Each party to this Agreement agrees that from the date hereof to the Effective
Time, except as otherwise consented to by the other party in writing or as permitte d, required or
contemplated by this Agreement (i) neither it nor any of its Subsidiaries will change any
provision of its Articles of Incorporation or Bylaws or similar governing documents; (ii) it will
not make, declare or pay any dividend; and (iii) except for transactions by the Cherokee National
Life Insurance Company Money Purchase Employee Stock Ownership Plan and Trust or the
Cherokee National Life Insurance Company Employee Stock Ownership Plan and Trust (the
“CNL Employee Stock Ownership Plans”) in the ordinary course of business, it will not make
any distribution or directly or indirectly sell, issue, redeem, purchase or otherwise acquire, any
shares of its outstanding capital stock, change the number of shares of its authorized or issue d
capital stock. or (except with respect to transactions by the CNL Employee Stock Ownership
Plans in the ordinary course of business), issue or grant any option, warrant, call, commitment,
subscription, right to purchase or agreement of any character relating to its authorized or issued
capital stock or any securities convertible into shares of such stock.
7.2 Consents. Each party to this Agreement will cooperate with the other party hereto
to take all steps reasonably necessary to obtain the written consent or approval or ea ch and every
governmental agency, including, without limitation, the Departments of Insurance of Georgia
and Arizona, the consent or approval of which shall be required in order to permit the part ies
hereto to consummate the transactions contemplated by this Agreement. Each party to this
Agreement shall take all reasonable steps necessary (without undue expense) to obtain the
written consent or approval, in form and substance reasonably satisfactory to the other party
hereto, of each person whose consent or approval shall be required in order to permit the parti es
hereto to consummate the transactions contemplated by this Agreement.
7.3 Further Assurances. Each party hereto agrees to use its best efforts to take, or
cause to be taken, all action and to do, or cause to be done, all things necessary, prope r or
advisable under applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement. In case at any time after the Effec tive Time any
further action is necessary or desirable to carry out the purposes of this Agreement, the proper
officers and directors of each corporation which is a party to this Agreement shall take all such
necessary action.
7.4 Shareholder Approvals. Each party hereto shall call a Shareholders’ Meeting as
soon as practicable after the date hereof for the purpose of voting upon the Merger and this
Agreement. In connection with the CNL Shareholders’ Meeting scheduled to consider the
Merger (“CNL Shareholders’ Meeting”), CNL shall prepare and file the proxy statement bei ng
furnished to CNL’s shareholders in connection with the CNL Shareholders’ Meeting (“CNL
Proxy Statement”) for review by the SEC, CNL shall mail its Proxy Statement to its
shareholders, each party’s Board of Directors shall (subject to the fiduciary duties of its di rectors
to their shareholders) recommend to its shareholders the approval of the Merger and this
Agreement, and each party hereto (subject to the fiduciary obligations of its direc tors to its
shareholders) shall use its reasonable efforts to obtain such shareholder approvals. CNL shall use
its best efforts to cause the CNL Proxy Statement to be approved as promptly as pract icable after
such filing and shall take all reasonable actions required to be taken under a ny applicable state
blue sky or securities laws in connection with the issuance of the Surviving Corporation
Common Stock pursuant to this Agreement. The CNL Shareholders’ Meeting shall be held as
soon as practicable after the date on which CNL files its definitive Proxy Sta tement with the
SEC.
7.5 Tax Treatment. CNL and NEWCO agree to treat the Merger as a reorganization
within Section 368(a) of the Code.ARTICLE 8
CONDITIONS PRECEDENT TO MERGER
8.1 Conditions to Each Party’s Obligations. The respective obligations of each party
to effect the Merger shall be subject to the satisfaction on or prior to the Closing Date of each of
the following conditions:
(a) Shareholder Approval. The holders of the NEWCO and CNL Common Stock
shall have approved this Agreement.(b) Authorization of Merger. All corporate action necessary to authorize the
execution, delivery and performance of this Agreement by the parties hereto and the
consummation of the transactions contemplated hereby have been duly and validly taken.(c) Injunction. At the Effective Time there shall be no effective injunction, wri t
or preliminary restraining order or any order of any nature issued by a court or
governmental agency of competent jurisdiction that the transactions provided for herein
or any of them not be consummated as herein provided and no proceeding or lawsuit
shall have been commenced or threatened by any governmental or regulatory agency with
respect to any other transactions contemplated by this Agreement.
(d) Consents. All consents, authorizations, orders and approvals of (or filings or
registrations with) any governmental commission, board or other regulatory body,
including the Insurance Commissioners of the States of Georgia and Arizona required in
connection with the execution, delivery and performance of this Agreement, the failure to
obtain which would prevent the consummation of the Merger, shall have been obtained.
CNL shall have received all state securities or “Blue Sky” permits and othe r
authorizations necessary for the consummation of the Merger.
(e) Effectiveness of CNL Proxy Statement. The CNL Proxy Statement shall
have been filed with the SEC and no stop order suspending the use of the CNL Proxy
Statement shall be in effect, and no proceedings for such purpose under the proxy rules of
the SEC pursuant to the Exchange Act and with respect to the transactions contempla ted
hereby shall be pending before or threatened by the SEC.
(f) Number of Shareholders. Each party to this Agreement shall be reasonably
assured that there will be less than 300 record shareholders in the Surviving Corporation
as a result of the Merger and that a Form 15 pursuant to the Exchange Act has been
signed and is ready to be filed with the SEC.(g) Available Funds. Each party to this Agreement shall be reasonably assured
as to the availability of unrestricted funds sufficient to pay the Former Shareholders and
Dissenting CNL Holders as a result of the Merger.(h) Schedule 13e-3 Filing. CNL shall have filed a Schedule 13e-3 with the
SEC.
(i) Fairness Opinion. The Fairness Opinion referred to in Section 5.1 shall
have been obtained.
8.2 Conditions to Obligations of CNL. The obligations of CNL to effect the Merger
shall be subject to the satisfaction on or prior to the Closing Date of each of the fol lowing
conditions unless waived by CNL:
(a) Representations and Warranties. Except as otherwise provided in this
Agreement, the representations and warranties of NEWCO set forth in this Agreement
shall be true and correct as of the date of this Agreement and as of the Closing Da te as
though made on and as of the Closing Date, except to the extent such representations and
warranties speak as of a specified date.
(b) Performance of Obligations by NEWCO. NEWCO shall have performed all
covenants and agreements required to be performed by it under this Agreement at or prior
to the Closing Date.
8.3 Conditions to Obligations of NEWCO. The obligations of NEWCO to effect the
Merger shall be subject to the satisfaction on or prior to the Closing Date of each of the
following conditions unless waived by NEWCO:
(a) Representations and Warranties. Except as otherwise provided in this
Agreement, the representations and warranties of CNL set forth in this Agreement shall
be true and correct as of the date of this Agreement and as of the Closing Date, exc ept to
the extent such representations and warranties speak as of a specified date.
(b) Performance of Obligations of CNL. CNL shall have performed all
covenants and agreements required to be performed by it under this Agreement at or prior
to the Closing Date. ARTICLE 9
TERMINATION AND ABANDONMENT OF THE MERGER
9.1 Termination. This Agreement may be terminated, whether before or after the
approval of the Merger by the shareholders of CNL and NEWCO, and the Merger abandoned:
(a) At any time prior to the Effective Time by mutual agreement of CNL and
NEWCO;(b) by CNL if:(i) its Board of Directors determines in good faith that CNL should
not consummate the Merger;
(ii) events occur which render impossible the satisfaction of one or
more of the conditions set forth in Sections 8.1 and 8.2 hereof and such conditions
are not waived by CNL, provided that such events did not result from any action
or omission by CNL which was within CNL’s control and which CNL was not
expressly permitted to take or omit by the terms of this Agreement; or
(iii) CNL is enjoined or restrained by any administrative agency,
commission or court, such injunction or restraining order prevents the
performance by CNL of its obligations hereunder and such injunction shall not
have been withdrawn by the earlier to occur of the date 60 days after the date on
which such injunction was first issued or May 11, 1994.
(c) by NEWCO if:
(i) its Board of Directors determines in good faith that NEWCO
should not consummate the Merger;
(ii) events occur which render impossible the satisfaction of one or
more of the conditions set forth in Sections 8.1 and 8.3 hereof and such conditions
are not waived by NEWCO, provided that such events did not result from any
action or omission by NEWCO which was within its control and which NEWCO
was not expressly permitted to take or omit by the terms of this Agreement; or
(iii) NEWCO is enjoined or restrained by any administrative agency,
commission or court, such injunction or restraining order prevents the
performance by NEWCO of its obligations hereunder and such injunction shall
not have been withdrawn by the earlier to occur of the date 60 days after the date
on which such injunction was first issued or May 11, 1994.
9.2 Effect of Termination. In the event of the termination and abandonment of this
Agreement under Section 9.1, this Agreement shall become void and have no effect, without any
liability on the part of any party or its directors, officers or shareholders.
ARTICLE 10
MISCELLANEOUS
10.1 Waiver and Amendment. Any term or provision of this Agreement may be
waived in writing at any time by the party which is, or whose shareholders are, entitled to the
benefits thereof, and any term or provision of this Agreement may be amended or supplemente d
at any time by action of the respective Boards of Directors of CNL or NEWCO without action of
the shareholders, whether before or after the meeting of CNL’s shareholders; provided, however,
that after approval of the shareholders of CNL and NEWCO no such amendment shall reduce the
amount or change the form of the consideration to be delivered to CNL’s shareholders as
contemplated by this Agreement or otherwise materially adversely affect the inte rests of such
shareholders unless such amendment is approved by CNL’s shareholders. No amendment to this
Agreement shall be effective unless it has been executed by CNL and NEWCO.
10.2 Survival of Representations, Warranties and Agreements. None of the
representations, warranties and agreements of CNL and NEWCO in this Agreement, or in any
instrument delivered pursuant to this Agreement, shall survive the Merger nor shall their
respective shareholders, directors or officers have any liability to the other after the Effective
Time on account of any breach of warranty or failure or the incorrectness of any of the
representations or warranties contained herein or in any certificate or other instrument delivered
pursuant to this Agreement. The sole right and remedy arising from a misrepresentation or
breach of warranty, from the failure of any of the conditions of the Merger to be met, or from the
failure to perform any promise or discharge any obligation in this Agreement shall be
termination of this Agreement by the aggrieved party and the remedies provided in Section 9.2.
10.3 Notices. All notices or other communications which are required or permitted
hereunder shall be in writing and sufficient if delivered personally, telecopied (if confi rmed) or
sent by registered or certified mail, postage prepaid, return receipt requested, addressed as
follows:
If to CNL:
CNL Financial Corporation
P.O. Box 6097
Macon, Georgia 31213-1399
Telecopy No.: 912-477-1177
Telephone No.: 912-477-0400
Attention: Don K. Miller
With a copy to:Arnall Golden & Gregory
First Liberty Bank Tower
201 Second Street, Suite 1000
Macon, Georgia 31201
Telecopy No.: 912-743-0239
Telephone No.: 912-745-3344
Attention: Jerome L. Kaplan, Esq.
If to NEWCO:
NEWCO Merger Company
P.O. Box 6097
Macon, Georgia 31213-1399
Telecopy No.: 912-477-1177
Telephone No.: 912-477-0400
Attention: Don K. Miller
10.4 Descriptive Headings. The descriptive headings are for convenience of reference
only and shall not control or affect the meaning or construction of any provision of this
Agreement. When a reference is made in this Agreement to Sections, such reference sha ll be to a
Section of this Agreement unless otherwise indicated. The phrase “made available” in this
Agreement shall mean that the information referred to has been made available if requested by
the party to whom such information is to be made available.
10.5 Counterparts. This 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.
10.6 Entire Agreement. This Agreement and the other agreements referred to herein
being executed and delivered in connection with the consummation of the Merger conta in the
entire agreements between CNL and NEWCO with respect to the Merger, and supersede al l prior
arrangements or understandings with respect to the subject matter hereof. This Agreeme nt is not
intended to confer upon any person other than the parties hereto any rights or remedie s
hereunder.
10.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.10.8 Assignment. Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other party. This Agreement will be bi nding
upon, inure to the benefit of and be enforceable by the parties hereto and their respec tive
successors and assigns.IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed and delivered by its respective duly authorized officers, all as of the date first above
written.
CNL FINANCIAL CORPORATION
By: /s/ Don K. Miller Don K. Miller, President
NEWCO MERGER COMPANY By: /s/ Don K. Miller Don K. Miller, President
SCHEDULE 4.2
CNL Capitalization
Authorized capital stock: 5,000,000 shares of common stock, $1.00 par value Issued
capital stock: 1,898,278 shares of common stock EXHIBIT A
ARTICLES OF MERGEROF
CNL FINANCIAL CORPORATION
AND
NEWCO MERGER COMPANY
To the Secretary of State
State of Georgia
Pursuant to the provisions of the Georgia Business Corporation Code (the “Code”), the
domestic corporations herein named do hereby adopt the following Articles of Merger:
I.
Attached hereto as Exhibit A and incorporated herein by this reference is a copy of the
Plan of Merger of Newco Merger Company into CNL Financial Corporation (the “Plan of
Merger”), for merging Newco Merger Company (“Newco”), a Georgia corporation, with and
into CNL Financial Corporation (“CNL”), a Georgia corporation, (the “Merger”).
II.
The charter number of CNL on __________, is ___________The charter number of
Newco on _________________, is ______________.
III.
Under the Plan of Merger, CNL shall be the surviving corporation of the Merger. IV.
Pursuant to Section 14-2-1101 of the Code, the Plan of Merger was duly adopted by the
Boards of Directors and the shareholders of CNL and Newco.
V.
The Merger shall be effective as of the time of filing of these Articles of Merger with the
Secretary of State of the State of Georgia.
IN WITNESS WHEREOF, the undersigned duly authorized officers of CNL and Newco
do hereby execute these Articles of Merger as of the _____ day of _______________, 1994.
CNL FINANCIAL CORPORATION
By:___________________________
Title:__________________________
NEWCO MERGER COMPANY
By:___________________________
Title:__________________________
EXHIBIT A
PLAN OF MERGEROF
NEWCO MERGER COMPANY WITH AND INTO
CNL FINANCIAL CORPORATION
I.
NAMES
The names of the corporations planning to merge are CNL Financial Corporation, a
corporation for profit organized under the laws of the State of Georgia (“CNL”) and Newco
Merger Company, a corporation for profit organized under the laws of the State of Georgia
(“Newco”).
II.
MERGER
CNL and Newco shall, pursuant to the provisions of the Georgia Business Corporation
Code (the “Code”), be merged (the “Merger”) with and into a single corporation, to wit , CNL,
which shall be the surviving corporation when the Merger takes effect and which is sometim es
hereinafter referred to as the “Surviving Corporation”, and which shall continue to exist a s the
Surviving Corporation under the name “CNL Financial Corporation” pursuant to the provisions
of the Code. The separate existence of Newco, which is sometimes hereinafter refe rred to as the
“Terminating Corporation”, shall cease when the Merger takes effect (the “Effecti ve Time”) in
accordance with the provisions of the Code.
III.
ARTICLES OF INCORPORATION
The Articles of Incorporation of the Surviving Corporation (the “Articles of
Incorporation”) as in effect immediately before the Effective Time of the Merger shall be the
Articles of Incorporation of the Surviving Corporation and shall continue to be the Articles of
Incorporation of the Surviving Corporation until thereafter amended as provided by law.
IV.
BYLAWS
The Bylaws of the Surviving Corporation as in effect immediately before the Effective
Time of the Merger shall be the Bylaws of the Surviving Corporation and shall continue t o be the
Bylaws of the Surviving Corporation until thereafter amended as provided by law, the Article s of
Incorporation of the Surviving Corporation or such Bylaws.
V.
DIRECTORS AND OFFICERS
The directors and officers of the Surviving Corporation in office immediately before the
Effective Time of the Merger shall continue to be the directors and officers of the Surviving
Corporation, all of whom shall hold their directorships and offices until the election and
qualification of their respective successors or Until their tenure is otherwise termi nated by law or
in accordance with the Bylaws of the Surviving Corporation.
VI.
SHARES
Each issued share of stock of Newco, as of the Effective Time of the Merger, shall be
converted into the right to receive $5.00 in cash, without interest. Each issued share of st ock of
CNL (“CNL Stock”) outstanding on September 7, 1994 (the “Determination Date”) owned by
any shareholder who at the Determination Date is not a director or officer of CNL and is a record
holder of 500 shares or less of CNL Stock shall be converted as of the Effective Time of the
Merger into the right to receive $6.00 in cash, without interest, for each such share of former
CNL Stock. Each issued share of CNL Stock owned by any shareholder who, on September 7,
1994, is a director or officer of CNL or is a record holder of more than 500 shares of CNL Stock
shall not be converted in any manner but each said share as of the Effective Time of the Merger
shall continue to represent one issued share of the Surviving Corporation.
VII.
EFFECTIVE TIME 0F MERGER
The Merger shall take effect when the Articles of Merger, setting forth this Plan of
Merger, are filed with the Secretary of State of Georgia.
VIII.
GENERAL AUTHORITY OF DIRECTORS AND OFFICERS
The Board of Directors and the officers of the Terminating Corporation and of the
Surviving Corporation are hereby authorized, empowered, and directed to do any and all acts a nd
things, and to make, execute, deliver, file, and record any and all instruments, pape rs, and
documents which shall be or become necessary, proper, or convenient to carry out or put into
effect any of the provisions of this Plan of Merger or the Merger.
IN WITNESS WHEREOF, the undersigned duly authorized officers of CNL and Newco
do hereby execute this Plan of Merger as of the _____ day of ________________, 1994.
CNL FINANCIAL CORPORATION
By:___________________________
Title:__________________________
NEWCO MERGER COMPANY
By:___________________________
Title:__________________________
