Filed pursuant to
Rule 424(b)(3)
COMMUNITY FINANCIAL GROUP, INC.
401 Church Street
Suite 200
Nashville, Tennessee 37219
SPECIAL MEETING OF SHAREHOLDERS
You are cordially invited to attend a special meeting of shareholders
of Community Financial Group, Inc. to be held at the Nashville City Club, 20th
Floor, SunTrust Bank Building, 201 4th Avenue, North, Nashville, Tennessee
37219, on Thursday, July 25, 2002, at 9:00 a.m. local time.
At the special meeting you will be asked to vote upon a proposal to
approve the acquisition of Community Financial by Synovus Financial Corp. by
means of the merger of Community Financial with and into Synovus. Community
Financial's subsidiary, The Bank of Nashville, will continue to operate as a
separately chartered subsidiary of Synovus following the proposed merger.
In the merger, each share of Community Financial common stock will be
converted into between .860 and .969 shares of Synovus common stock, with the
exact exchange ratio to be determined based on the price of Synovus common stock
over a 15-day measurement period ending immediately prior to the effective date
of the merger. Because the price of Synovus common stock fluctuates, the value
of the securities you will receive will fluctuate on a day-to-day basis.
Shareholders of Community Financial generally will not recognize a gain or a
loss for tax purposes in connection with the conversion of their shares of
Community Financial common stock into Synovus common stock.
Synovus common stock is traded on the New York Stock Exchange and
Synovus has registered 3,412,300 shares of its common stock for issuance in
connection with the merger.
Community Financial has received from its financial advisor, Trident
Securities, an opinion that the terms of the transaction are fair from a
financial point of view to the shareholders of Community Financial.
The merger cannot be completed unless holders of a majority of the
outstanding shares of Community Financial common stock approve it. The board of
directors urges you to consider the enclosed material carefully and recommends
that you vote "FOR" approval of the merger.
Whether or not you plan to attend the special meeting, please take the
time to vote by completing and mailing the enclosed proxy card to us. If you
fail to return your card or vote in person, the effect will be a vote against
the merger.
On behalf of the Board of Directors of Community Financial, we urge you
to vote "FOR" the merger.
/s/J. Hunter Atkins
J. Hunter Atkins
President and Chief Executive Officer
Community Financial Group, Inc.
Neither the Securities and Exchange Commission nor any state securities
commission has approved of the securities to be issued in the merger or
determined if this document is accurate or adequate. It is illegal to tell you
otherwise. The securities to be issued in the merger are not savings or deposit
accounts and are not insured by the Federal Deposit Insurance Corporation or any
other governmental agency.
The date of this proxy statement/prospectus is June 20, 2002, and it
is first being mailed to the shareholders of Community Financial on or about
June 24, 2002.
REFERENCES TO ADDITIONAL INFORMATION
This document incorporates important business and financial information
about Synovus and Community Financial from documents that are not included in or
delivered with this document. The information is available to you without charge
upon your written or oral request. You can obtain documents incorporated by
reference in this document, other than certain exhibits to those documents, by
requesting them in writing or by telephone from the appropriate company at the
following addresses:
Synovus Financial Corp. Community Financial Group, Inc.
901 Front Avenue, Suite 301 401 Church Street
Columbus, Georgia 31901 Suite 200
Attn: G. Sanders Griffith, III Nashville, Tennessee 37219
Senior Executive Vice President, Attn: Attilio F. Galli
General Counsel & Secretary Chief Financial Officer
Telephone: (706) 649-2267 Telephone: (615) 271-2010
If you would like to request documents, please do so by July 18,
2002 in order to receive them before the special meeting.
Please see "Where You Can Find More Information" on page 43 for further
information.
COMMUNITY FINANCIAL GROUP, INC.
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
To be held on July 25, 2002
To Our Shareholders:
Notice is hereby given that a special meeting of the shareholders of
Community Financial Group, Inc. will be held at the Nashville City Club, 20th
Floor, SunTrust Bank Building, 201 4th Avenue, North, Nashville, Tennessee
37219, on Thursday, July 25, 2002, at 9:00 a.m. local time, for the
following purposes:
1. To consider and vote upon a proposal to approve and adopt the merger
agreement, dated as of April 29, 2002, between Synovus Financial Corp. and
Community Financial Group, Inc. Under the terms of this merger agreement,
Community Financial Group, Inc. will be merged with and into Synovus, and
Community Financial Group, Inc. shareholders will receive shares of Synovus
common stock, as more fully described in the accompanying proxy
statement/prospectus dated June 20, 2002.
2. To consider and vote upon such other matters as may properly come before
the special meeting or any adjournments or postponements of the special
meeting.
Only shareholders of record on June 18, 2002 are entitled to receive
notice of the special meeting and to vote at the special meeting.
The merger is described in the accompanying proxy statement/prospectus,
which you are urged to read carefully. A copy of the merger agreement is
attached as Appendix "A" to the accompanying proxy statement/prospectus.
By Order of the Board of Directors
/s/J. Hunter Atkins
J. Hunter Atkins
President and Chief Executive Officer
Nashville, Tennessee
June 24, 2002
Please mark, date, sign and promptly return the enclosed proxy card so
that your shares may be voted in accordance with your wishes and so that a
quorum may be assured. The giving of a proxy does not affect your right to vote
in person if you attend the special meeting.
The Board of Directors of Community Financial Group, Inc. Unanimously
Recommends that You Vote in Favor of the Merger.
Do Not Send Stock Certificates With Your Proxy Card.
TABLE OF CONTENTS
Caption Page
--------- -----
QUESTIONS AND ANSWERS ABOUT THE MERGER............................................................................1
WHO CAN HELP ANSWER YOUR QUESTIONS................................................................................2
SUMMARY...........................................................................................................3
The Companies..................................................................................................3
The Merger.....................................................................................................3
Community Financial's Reasons for the Merger...................................................................3
Opinion of Financial Advisor...................................................................................4
Community Financial Special Shareholders' Meeting..............................................................4
Conditions to the Merger.......................................................................................4
Accounting Treatment ..........................................................................................5
Tax Opinion....................................................................................................5
Effective Date of Merger.......................................................................................5
Dissenters' Rights.............................................................................................5
Interests of Certain Persons in the Merger.....................................................................5
Termination of the Merger Agreement............................................................................5
No Solicitation................................................................................................6
Effect of Merger on Rights of Community Financial Shareholders.................................................6
Comparative Market Price Information and Dividends.............................................................6
UNAUDITED COMPARATIVE PER SHARE AND SELECTED FINANCIAL DATA.......................................................7
THE SPECIAL MEETING..............................................................................................12
Date, Time and Place..........................................................................................12
Matters to Be Considered at the Special Meeting...............................................................12
Record Date; Stock Entitled to Vote; Quorum...................................................................12
Vote Required.................................................................................................12
Stock Ownership of Community Financial Directors and Executive Officers.......................................12
Voting of Proxies.............................................................................................12
Revoking Proxies..............................................................................................13
Proxy Solicitation............................................................................................13
Recommendation of the Community Financial Board...............................................................14
THE MERGER.......................................................................................................14
Terms of the Merger...........................................................................................14
Background of the Merger......................................................................................16
Recommendation of Community Financial Board and Reasons for the Merger........................................16
Opinion of Community Financial Financial Advisor..............................................................17
Conditions to the Merger......................................................................................22
No Solicitation...............................................................................................24
Conduct of Business of Community Financial Pending the Merger.................................................24
Regulatory Approvals..........................................................................................25
Waiver and Amendment..........................................................................................25
Termination and Termination Fee...............................................................................25
Interests of Community Financial's Directors and Officers in the Merger.......................................26
Employee Benefits.............................................................................................26
Tax Opinion...................................................................................................27
Accounting Treatment..........................................................................................27
Expenses......................................................................................................28
New York Stock Exchange Listing...............................................................................28
Resales of Synovus Common Stock...............................................................................28
i
DESCRIPTION OF STOCK AND EFFECT OF MERGER ON RIGHTS OF
COMMUNITY FINANCIAL SHAREHOLDERS.................................................................................28
Synovus Common Stock..........................................................................................29
Community Financial Capital Stock.............................................................................34
DISSENTERS' RIGHTS...............................................................................................36
DESCRIPTION OF SYNOVUS...........................................................................................36
Business......................................................................................................36
Management and Additional Information.........................................................................36
Recent Developments...........................................................................................37
DESCRIPTION OF COMMUNITY FINANCIAL...............................................................................37
Business......................................................................................................37
Management and Additional Information.........................................................................37
REGULATORY MATTERS...............................................................................................37
General.......................................................................................................37
Dividends.....................................................................................................37
Capital Requirements..........................................................................................38
Commitments to Subsidiary Banks...............................................................................39
Prompt Corrective Action......................................................................................40
Safety and Soundness Standards................................................................................41
Depositor Preference Statute..................................................................................41
Gramm-Leach-Bliley Act........................................................................................41
LEGAL MATTERS....................................................................................................42
EXPERTS..........................................................................................................42
OTHER MATTERS....................................................................................................42
SHAREHOLDER PROPOSALS............................................................................................42
WHERE YOU CAN FIND MORE INFORMATION..............................................................................43
FORWARD-LOOKING STATEMENTS.......................................................................................44
PRO FORMA FINANCIAL INFORMATION..................................................................................45
APPENDIX A Agreement and Plan of Merger.....................................................................A-1
APPENDIX B Fairness Opinion of Trident Securities...........................................................B-1
APPENDIX C Tax Opinion of KPMG LLP..........................................................................C-1
ii
QUESTIONS AND ANSWERS ABOUT THE MERGER
Q: Why is the merger being proposed?
A: Community Financial's board of directors believes the merger is in the
best interests of Community Financial and will provide significant
benefits to its shareholders. Synovus' board of directors believes that
the acquisition of Community Financial will offer Synovus the
opportunity to expand its banking operations into an additional
attractive banking market, the state of Tennessee. To review the
background and reasons for the merger in greater detail, see pages 16
and 17.
Q: What will I receive in the merger?
A: Community Financial shareholders will receive between .860 and .969
shares of Synovus common stock for each share of Community Financial
common stock they hold, with the exact exchange ratio to be determined
based on the price of Synovus common stock over a 15-day measurement
period ending immediately prior to the effective date of the merger.
Because the market price of Synovus common stock fluctuates, the value
of securities you will receive will fluctuate on a day-to-day basis.
Synovus will not issue fractional shares in the merger. Instead,
Community Financial shareholders will receive a cash payment, without
interest, for the value of any fraction of a share of Synovus common
stock that they would otherwise be entitled to receive, based upon the
closing price of Synovus common stock on the fifth business day prior
to the effective date of the merger.
Q: What happens as the market price of Synovus common stock fluctuates?
A: The exchange ratio floats when the market price of Synovus stock is
between $26.83 and $30.25 per share. Since the market price of Synovus
common stock fluctuates, at the time you vote you will not know what
the shares will be worth when issued in the merger.
Q: When is the merger expected to be completed?
A: We expect to complete the merger in the third quarter of 2002.
Q: What am I being asked to vote upon and what is the required
shareholder vote?
A: You are being asked to approve the merger of Community Financial into
Synovus. Approval of the proposal requires the affirmative vote of
holders of a majority of the shares of outstanding common stock of
Community Financial. Community Financial's board of directors
encourages you to vote at the special meeting. The Community Financial
board of directors has unanimously approved and adopted the merger
agreement and recommends that Community Financial shareholders vote FOR
the approval of the merger.
Q: What should I do now?
A: You should read this document carefully and determine whether you
desire to vote for approval of the merger.
Q: Should I send in my stock certificates now?
A: No. If the merger is completed, we will send you written instructions
for exchanging your Community Financial common stock certificates for
Synovus common stock certificates.
1
WHO CAN HELP ANSWER YOUR QUESTIONS
If you want additional copies of this document, or if you want to ask
any questions about the merger, you should contact:
Community Financial Group, Inc.
401 Church Street
Suite 200
Nashville, Tennessee 37219
Attn: Attilio F. Galli
Chief Financial Officer
Telephone: (615) 271-2010
SUMMARY
This summary highlights selected information from this document and may
not contain all the information that is important to you. For a more complete
understanding of the merger and for a more complete description of the legal
terms of the merger, you should read this entire document carefully, as well as
the additional documents to which we refer you, including the merger agreement.
The Companies (pages 36 and 37)
Synovus Financial Corp.
Suite 301, One Arsenal Place
901 Front Avenue
Columbus, Georgia 31901
(706) 649-4751
Synovus Financial Corp., a Georgia corporation, is a financial services
company whose stock is traded on the New York Stock Exchange under the symbol
"SNV." Synovus is registered as a bank holding company under the Bank Holding
Company Act of 1956 and became a financial holding company in April 2000. As of
March 31, 2002, Synovus had total assets of approximately $16.7 billion, total
deposits of $12.5 billion, shareholders' equity of $1.7 billion and net loans of
$12.7 billion. Synovus and its 38 commercial banking affiliates presently
provide banking services at approximately 253 offices located in Georgia,
Alabama, Florida and South Carolina. Synovus also provides a variety of other
financial services including mortgage banking, securities brokerage, insurance
agency, equipment leasing and trust services. In addition, Synovus holds an
81.1% interest in Total System Services, Inc. Total System Services, Inc. is an
information technology processor of credit, debit, stored value, commercial and
retail cards whose stock is traded on the New York Stock Exchange.
Community Financial Group, Inc.
401 Church Street
Suite 200
Nashville, Tennessee 37219
Telephone: (615) 271-2000
Community Financial Group is registered as a bank holding company under
the Bank Holding Company Act. As of March 31, 2002, Community Financial had
total assets of $491 million, total deposits of $358 million, shareholders'
equity of $38 million and net loans and leases of $341 million. Community
Financial has one banking subsidiary, The Bank of Nashville, Nashville,
Tennessee, which provides services through five offices.
The Merger (page 14)
If the merger is approved by Community Financial's shareholders,
Community Financial will be merged with and into Synovus, and Community
Financial's banking subsidiary, through which it operates, will become a wholly
owned subsidiary of Synovus. In addition, Community Financial's indirect
subsidiaries, through which it offers equipment leasing and title agency
services, will become indirect subsidiaries of Synovus. The merger requires the
approval of the holders of a majority of the Community Financial common stock
outstanding on the record date. The directors and executive officers of
Community Financial together own about 26% of the shares entitled to vote at
the meeting, and we expect them to vote their shares in favor of the merger.
We have attached the merger agreement as Appendix "A" to this document.
We encourage you to read the merger agreement, as it is the legal document that
governs the merger.
Community Financial's Reasons for the Merger (page 16)
In reaching its decision to approve and recommend approval of the
merger agreement, the Community Financial board of directors considered a number
of factors, including the following:
3
* the value of the consideration to be received by Community Financial
shareholders relative to the book value and earnings per share of
Community Financial common stock;
* information concerning the financial condition, results of operations
and business prospects of Synovus;
* the fact that, following the merger, The Bank of Nashville would
continue to operate under its existing name and management team;
* the financial terms of recent business combinations in the financial
services industry and a comparison of the multiples of selected
combinations with the terms of the proposed transaction with Synovus;
* the alternatives to the merger, including remaining an independent
institution;
* the competitive and regulatory environment for financial institutions
generally;
* the fact that the merger will enable Community Financial shareholders
to exchange their shares of Community Financial common stock, in a
tax-free transaction, for shares of common stock of a regional
company, the stock of which is widely held and actively traded; and
* the opinion of Trident Securities that the exchange ratio in the
merger is fair, from a financial point of view, to the shareholders of
Community Financial.
Opinion of Financial Advisor (page 17)
Community Financial asked its financial advisor, Trident Securities,
for advice on the fairness, from a financial point of view, of the exchange
ratio in the merger to Community Financial's shareholders. Trident Securities
has delivered its written opinion to the Community Financial board that as of
April 29, 2002, the date the Community Financial board approved the merger
agreement, the exchange ratio was fair, from a financial point of view, to the
shareholders of Community Financial. The opinion is attached Appendix "B" to
this proxy statement/prospectus. You should read this opinion completely to
understand the procedures followed, assumptions made, matters considered and
limitations of the review undertaken by Trident Securities. Trident Securities'
opinion is addressed to the Community Financial board and does not constitute a
recommendation to any shareholder as to how to vote with respect to matters
relating to the proposed merger.
Community Financial Special Shareholders' Meeting (page 6)
The special meeting will be held at the Nashville City Club, 20th
Floor, SunTrust Bank Building, 201 4th Avenue, North, Nashville, Tennessee 37219
on July 25, 2002, at 9:00 a.m. local time.
Conditions to the Merger (page 22)
Consummation of the merger is subject to various conditions, including:
* receipt of Community Financial shareholder approval;
* receipt of the necessary regulatory approvals;
* receipt of an opinion from KPMG regarding tax aspects of the merger;
and
* satisfaction of other customary closing conditions.
The regulatory approvals necessary to consummate the merger and the
other transactions contemplated by the merger agreement include the approval of
the Board of Governors of the Federal Reserve System, the Georgia Department of
Banking and Finance and the Tennessee Department of Financial Institutions. The
merger has been approved by the Georgia Department of Banking and Finance but
has not yet been approved by the other regulatory agencies.
4
Accounting Treatment (page 27)
The merger will be accounted for as a purchase for financial reporting
purposes.
Tax Opinion (page 27)
The merger is structured so that Community Financial shareholders
generally will not recognize gain or loss for federal income tax purposes for
the whole shares of Synovus common stock they receive in the merger. KPMG has
issued an opinion to this effect, which is attached to this document as Appendix
"C." Community Financial shareholders will be taxed on cash received instead of
any fractional share of Synovus common stock. Tax matters are complicated, and
tax results may vary among shareholders. We urge you to contact your own tax
advisor to understand fully how the merger will affect you.
Effective Date of Merger (page 14)
The merger will become effective when all of the conditions to the
merger have been satisfied and Articles of Merger are filed with the Tennessee
Secretary of State and the Georgia Secretary of State. Subject to the conditions
specified in the merger agreement, the parties anticipate that the merger will
become effective in the third quarter of 2002. There can be no assurances,
however, as to whether or when the merger will occur.
Dissenters' Rights (page 36)
Under Tennessee law, Community Financial shareholders will not have
dissenters' rights with respect to the merger, meaning that you will have no
right to dissent from the merger and receive a cash payment for the fair value
of your Community Financial shares.
Interests of Certain Persons in the Merger (page 26)
Certain executive officers of Community Financial have interests in the
merger that are different from your interests. J. Hunter Atkins, President and
Chief Executive Officer of Community Financial, will enter into an employment
agreement with Synovus providing for his continued employment as the President
and Chief Executive Officer of The Bank of Nashville for a period of five years
following the merger. In addition, Synovus will assume the obligations of
Community Financial under its current employment agreement with Attilio F.
Galli, Executive Vice President and Chief Financial Officer of Community
Financial, providing for his employment as Chief Financial Officer of The Bank
of Nashville through March 1, 2003. The employment agreement automatically
renews for successive one year terms unless terminated by either party at least
30 days prior to the expiration of any term. The Board of Directors of Community
Financial was aware of these interests and took them into account in approving
the merger agreement.
Termination of the Merger Agreement (page 25)
Either Community Financial or Synovus may terminate the merger
agreement under the following circumstances, among others:
* the mutual consent of Synovus and Community Financial;
* the merger is not completed before October 31, 2002, unless the
failure to consummate by this time is due to a breach of the merger
agreement by the party seeking to terminate; or
* failure of any of the conditions set forth in the merger agreement
unless the failure is due to a breach of the merger agreement by the
party seeking to terminate.
Also, Community Financial may terminate the merger agreement if the
closing price of Synovus common stock decreases by more than 15% from $26.83 and
such decrease as measured from April 26, 2002 exceeds the change in the
aggregate closing price per share of an index of Southeastern Bank Holding
Company stocks. Synovus may terminate the merger agreement if the closing price
of Synovus common stock exceeds $30.25 by 15% or more and such percentage
increase, as measured from the first date the closing price of Synovus common
5
stock on the NYSE exceeds $30.25, exceeds the change in the aggregate closing
price per share of the same index of Southeastern Bank Holding Company stocks.
No Solicitation (page 24)
Community Financial has agreed that until the completion of the merger,
Community Financial will not directly or indirectly take any specified actions
with respect to any acquisition proposal. However, notwithstanding these
restrictions, Community Financial may, if necessary to comply with its fiduciary
obligations and subject to other qualifications and conditions, furnish
information and engage in discussions or negotiations in response to unsolicited
acquisition proposals.
Effect of Merger on Rights of Community Financial Shareholders (page 28)
Community Financial is a Tennessee corporation and, therefore, the
rights of shareholders of Community Financial currently are determined by
reference to the Tennessee Business Corporation Act and Community Financial's
Charter and bylaws. At the effective time of the merger, shareholders of
Community Financial will become shareholders of Synovus, which is a Georgia
corporation. As a result, their rights as shareholders of Synovus will then be
determined by reference to the Georgia Business Corporation Code and Synovus'
Articles of Incorporation and bylaws. The laws of these jurisdictions vary.
There are also various differences between Synovus' Articles of Incorporation
and bylaws and Community Financial's Charter and bylaws.
Comparative Market Price Information and Dividends
Synovus common stock is listed on the NYSE under the symbol "SNV" and
Community Financial common stock is included on the Nasdaq National Market under
the symbol "CFGI." The table below shows the high and low closing prices of
Synovus common stock and Community Financial common stock and cash dividends
declared per share for the last two fiscal years plus the interim period.
Synovus Community Financial
------- -------------------
Cash Cash
High Low Dividend High Low Dividend
---- --- -------- ---- --- --------
Quarter Ended
March 31, 2002 $31.74 $24.75 $.1475 $18.74 $15.10 $.17
Quarter Ended
March 31, 2001 28.31 24.04 .1275 13.88 12.00 .17
June 30, 2001 31.77 26.00 .1275 14.10 13.25 .17
September 30, 2001 34.45 24.63 .1275 15.00 13.56 .17
December 31, 2001 28.00 23.02 .1275 15.75 13.72 .17
For year 2001 34.45 23.02 .5100 15.75 12.00 .68
Quarter Ended
March 31, 2000 19.19 14.50 .1100 14.13 11.63 .17
June 30, 2000 20.94 17.56 .1100 13.75 12.88 .17
September 30, 2000 21.44 17.94 .1100 13.50 11.63 .17
December 31, 2000 27.19 19.31 .1100 12.69 10.13 .17
For year 2000 27.19 14.50 .4400 14.13 10.13 .68
The table below shows the closing prices of Synovus common stock and
Community Financial common stock on April 29, 2002, the last full trading day
before public announcement of the proposed merger, and on June 18, 2002.
April 29, 2002 June 18, 2002
-------------- -------------
Synovus $26.50 $25.46
Community Financial 18.46 23.98
6
UNAUDITED COMPARATIVE PER SHARE AND SELECTED FINANCIAL DATA
The following tables show summary historical financial data for Synovus
and Community Financial and also show similar information reflecting the merger
of Synovus and Community Financial (which is referred to as "pro forma"
information). In presenting the comparative pro forma information for certain
time periods, it was assumed that Synovus and Community Financial had been
merged throughout those periods. The pro forma financial information does not
include the effects of recently completed or other pending immaterial
acquisitions by Synovus. The following tables show information about Synovus and
Community Financial's net income per diluted share, dividends per share and book
value per share, and similar pro forma information.
The tables present unaudited pro forma combined financial information
for Synovus and Community Financial that has been prepared to provide
information regarding the possible financial results of the combined company had
the merger already taken place at the beginning of each fiscal period described
therein. This information is known as "pro forma" information and has been
prepared by considering certain historical information about Synovus and
Community Financial together. The information listed as "pro forma equivalent"
for Community Financial was computed by multiplying the pro forma amounts by
either the maximum exchange ratio of .969 shares of Synovus common stock or the
minimum exchange ratio of .860 shares of Synovus common stock. This information
reflects the fact that Community Financial shareholders will receive less than
one share of Synovus common stock for each share of Community Financial common
stock they own before the merger.
The pro forma information, while helpful in illustrating the financial
characteristics of the continuation of Synovus and Community Financial under one
set of assumptions, does not attempt to predict or suggest future results. The
pro forma information also does not attempt to show how Synovus and Community
Financial would actually have performed had the companies been combined
throughout these periods. All adjustments, consisting only of normal recurring
adjustments, necessary for a fair presentation of results of the unaudited
historical interim periods have been included.
The information in the following tables was derived from historical
financial information contained in annual and quarterly reports and other
information Synovus and Community Financial have filed with the SEC. When you
read the summary financial information provided in the following tables, you
should also read the historical financial information contained in annual and
quarterly reports and other information Synovus and Community Financial have
filed with the SEC. See "WHERE YOU CAN FIND MORE INFORMATION" on page 43.
[Rest of page intentionally left blank]
7
MAXIMUM EXCHANGE RATIO
The following table reflects the issuance of 2,983,270 shares of Synovus common
stock pursuant to the maximum exchange ratio of .969 shares of Synovus common
stock for each share of Community Financial common stock currently outstanding.
Three Months
Ended Year Ended
March 31, 2002 December 31, 2001
-------------- -----------------
(Unaudited) (Unaudited except
Synovus and
CFGI historical)
Net Income per Common Share - Basic
Historical:
Synovus $ 0.28 $ 1.07
CFGI 0.31 1.02
Pro forma combined 0.28 1.07
Pro forma equivalent per CFGI common share 0.27 1.04
Net Income per Common Share - Diluted
Historical:
Synovus $ 0.28 $ 1.05
CFGI 0.31 1.02
Pro forma combined 0.27 1.05
Pro forma equivalent per CFGI common share 0.26 1.02
Cash Dividends Declared per Common Share
Historical:
Synovus $ 0.15 $ 0.51
CFGI 0.17 0.68
Pro forma equivalent per CFGI common share 0.14 0.49
Book Values per Common Share at Period End
Historical:
Synovus $ 5.85 $ 5.75
CFGI 12.46 12.55
Pro forma combined 6.08 5.97
Pro forma equivalent per CFGI common share 5.89 5.78
- ------------------------------------------------------------------------
Determined by multiplying the pro forma combined amounts by the maximum
exchange ratio of .969:1.
Determined by multiplying the Synovus historical
cash dividends declared per share by the maximum exchange ratio of .969:1.
MINIMUM EXCHANGE RATIO
The following table reflects the issuance of 2,647,691 shares of Synovus common
stock pursuant to the minimum exchange ratio of .860 shares of Synovus common
stock for each share of Community Financial common stock currently outstanding.
Three Months Year Ended
Ended December 31,
March 31, 2002 2001
------------------------ ---------------------
(Unaudited) (Unaudited except
Synovus and
CFGI historical)
Net Income per Common Share - Basic
Historical:
Synovus $ 0.28 $ 1.07
CFGI 0.31 1.02
Pro forma combined 0.28 1.07
Pro forma equivalent per CFGI common share 0.24 0.92
Net Income per Common Share - Diluted
Historical:
Synovus $ 0.28 $ 1.05
CFGI 0.31 1.02
Pro forma combined 0.27 1.05
Pro forma equivalent per CFGI common share 0.23 0.90
Cash Dividends Declared per Common Share
Historical:
Synovus $ 0.15 $ 0.51
CFGI 0.17 0.68
Pro forma equivalent per CFGI common share 0.13 0.44
Book Values per Common Share at Period End
Historical:
Synovus $ 5.85 $ 5.75
CFGI 12.46 12.55
Pro forma combined 6.05 5.94
Pro forma equivalent per CFGI common share 5.20 5.11
- -------------------------------------------------------------
Determined by multiplying the pro forma combined amounts by the minimum
exchange ratio of .860:1.
Determined by multiplying the Synovus historical
cash dividends declared per share by the minimum exchange ratio of .860:1.
9
SYNOVUS FINANCIAL CORP.
Selected Financial Data
(Dollars in thousands, except per share data)
Three Months Ended
March 31,
(Unaudited) Years Ended December 31,
---------------------------- --------------------------------------------------------------
2002 2001 2001 2000 1999 1998 1997
---------------------------- --------------------------------------------------------------
Income Statement Data:
Net interest income $ 172,617 146,413 $ 629,791 562,332 513,294 455,065 425,920
Provision for losses on loans 13,109 10,987 51,673 44,341 34,007 26,882 32,485
Non-interest income 289,298 285,580 937,697 833,513 739,765 582,213 501,412
Non-interest expense 314,516 303,736 1,005,963 923,274 856,549 695,812 618,691
Net income 82,752 71,885 311,616 262,557 225,307 196,465 170,829
Balance Sheet Data:
Investment securities $ 2,076,461 2,063,315 $ 2,088,287 2,077,928 1,993,957 1,877,473 1,702,681
Loans, net of unearned income 12,698,763 11,155,864 12,417,917 10,751,887 9,068,239 7,603,605 6,752,154
Total assets 16,725,734 15,178,638 16,657,947 14,908,092 12,547,001 10,811,592 9,530,541
Deposits 12,451,008 11,487,328 12,146,198 11,161,710 9,440,087 8,797,412 7,928,211
Long-term debt 1,114,742 884,971 1,052,943 840,859 318,620 131,802 131,492
Average total shareholders'
equity 1,719,380 1,451,560 1,548,030 1,303,634 1,165,426 1,013,334 865,232
Average total assets 16,522,858 14,792,026 15,375,004 13,466,385 11,438,696 9,827,925 9,067,237
Per Share Data:
Net income - basic $ 0.28 0.25 $ 1.07 0.93 0.80 0.72 0.63
Net income - diluted 0.28 0.25 1.05 0.92 0.80 0.71 0.63
Cash dividends declared 0.15 0.13 0.51 0.44 0.36 0.29 0.24
Book value per share 5.85 5.18 5.75 4.98 4.35 3.99 3.50
Ratios:
Return on assets 2.03 % 1.97 2.03 % 1.95 1.97 2.00 1.88
Return on equity 19.52 20.08 20.13 20.14 19.33 19.39 19.74
Dividend payout ratio 53.19 51.39 47.67 47.56 43.70 39.55 36.85
Average shareholders'
equity to average assets 10.41 9.81 10.07 9.68 10.19 10.31 9.54
- --------------------------------
Ratios for the three month periods have been annualized.
Determined by dividing dividends declared by net income, excluding pooled
subsidiaries.
10
Community Financial Group, Inc.
Selected Financial Data
(Dollars in thousands, except per share data)
Three Months Ended
March 31,
(Unaudited) Years Ended December 31,
------------------------ -----------------------------------------------------
2002 2001 2001 2000 1999 1998 1997
------------------------ -----------------------------------------------------
Income Statement Data:
Net interest income $ 3,923 3,844 $ 16,654 14,356 11,922 8,556 7,304
Provision for losses on loans and 1,080 255 2,216 1,256 106 128 100
leases
Non-interest income 2,053 771 4,301 2,785 2,675 1,805 1,421
Non-interest expense 3,366 2,976 13,226 10,542 8,845 6,071 5,236
Net income 962 851 3,326 3,257 3,501 2,581 2,058
Balance Sheet Data:
Investment securities $ 103,453 72,555 $ 113,356 62,775 74,877 71,662 66,059
Loans and leases, net of unearned
income 346,398 278,737 339,937 270,568 205,511 152,675 122,749
Total assets 490,547 369,971 482,310 354,620 308,106 238,185 204,887
Deposits 358,229 281,105 349,948 273,036 229,141 162,553 164,099
Long-term debt 89,000 41,685 89,000 36,236 29,500 14,500 14,500
Average total shareholders' equity 38,929 42,421 40,724 43,205 49,200 27,313 22,846
Average total assets 478,122 367,330 436,795 324,738 269,137 209,501 190,766
Per Share Data:
Net income - basic $ 0.31 0.25 $ 1.02 0.90 0.86 1.08 0.93
Net income - diluted 0.31 0.25 1.02 0.90 0.85 0.78 0.89
Cash dividends declared 0.17 0.17 0.68 0.68 0.46 0.24 0.20
Book value per share 12.46 12.54 12.55 12.34 12.06 12.14 10.87
Ratios:
Return on assets 0.82 0.94 0.76 % 1.00 1.30 1.23 1.08
Return on equity 10.02 8.19 8.20 7.39 7.09 9.56 9.05
Dividend payout ratio 54.37 69.92 66.24 76.05 53.73 22.05 21.43
Average shareholders'
equity to average assets 8.14 11.55 9.22 13.30 18.28 13.04 11.98
---------------------------------------------------
Ratios for the three month periods have been annualized.
Determined by dividing dividends declared by net income.
11
THE SPECIAL MEETING
We are furnishing this document to shareholders of Community Financial
in connection with the solicitation of proxies by the board of directors of
Community Financial for use at the special meeting of its shareholders.
Date, Time and Place
The special meeting will be held at the Nashville City Club, 20th
Floor, SunTrust Bank Building, 201 4th Avenue, North, Nashville, Tennessee 37219
on Thursday, July 25, 2002, at 9:00 a.m. local time.
Matters to Be Considered at the Special Meeting
At the special meeting, the shareholders of Community Financial will be
asked to consider and vote upon the approval of the merger, and such other
matters as may properly be brought before the special meeting.
The Community Financial board has unanimously approved the merger
agreement and the transactions contemplated by the merger agreement and
recommends that you vote "FOR" approval of the merger.
Record Date; Stock Entitled to Vote; Quorum
Only holders of record of Community Financial common stock at the close
of business on June 18, 2002, the record date for the Community Financial
special meeting, are entitled to receive notice of the special meeting and to
vote at the special meeting. Holders of record of shares of Community Financial
common stock on the record date are each entitled to one vote per share on each
matter to be considered at the special meeting.
On the record date, 3,163,452 shares of Community Financial common
stock were issued and outstanding and were held by 370 holders of record.
A majority of all the issued and outstanding shares of Community
Financial common stock, present in person or by proxy, will constitute a quorum
for the special meeting.
Vote Required
The approval of the merger requires the affirmative vote of the holders
of a majority of the outstanding shares of Community Financial common stock.
The merger does not require the approval of Synovus' shareholders.
Synovus' board of directors approved the merger on April 29, 2002.
Stock Ownership of Community Financial Directors and Executive Officers
At the close of business on the record date, the directors and
executive officers of Community Financial beneficially owned and were entitled
to vote approximately 902,379 shares of Community Financial common stock. This
ownership represents approximately 26% of the shares of Community Financial
common stock outstanding on that date.
Voting of Proxies
Shares represented by all properly executed proxies received in time
for the special meeting will be voted at the special meeting according to the
voting instructions of the shareholder who executed the proxy. Properly executed
proxies which do not contain voting instructions will be voted in favor of the
merger.
Community Financial intends to count shares of Community Financial
common stock present in person at the special meeting but not voting, and shares
of Community Financial common stock for which proxies are received but with
respect to which holders of shares have abstained from voting on or voted
against any matter, as
12
present at the special meeting for purposes of determining the presence or
absence of a quorum for the special meeting.
For voting purposes at the special meeting, only shares voted in favor
of approval of the merger will be counted as favorable votes for such approval
and adoption. A shareholder's failure to submit a proxy, failure to vote in
person, or abstention from voting with respect to the approval of the merger
will have the same effect as if the shareholder voted against approval of the
merger.
Shares held in street name that have been designated by brokers on
proxy cards as not voted with respect to the merger ("broker non-votes") will
not be counted as votes cast on the merger. Shares with respect to which proxies
have been marked as abstentions also will not be counted as votes cast on the
merger. Shares with respect to which proxies have been marked as abstentions and
broker non-votes will, however, be treated as shares present for purposes of
determining whether a quorum is present.
The proposal to adopt the merger agreement is a non-discretionary item,
meaning that brokerage firms may not vote shares in their discretion on behalf
of a client if the client has not furnished voting instructions. Because the
merger must be approved by the holders of a majority of the outstanding shares
of Community Financial common stock, abstentions and broker non-votes will have
the same effect as a vote against the merger at the meeting. Accordingly, the
Community Financial board urges Community Financial shareholders to complete,
date and sign the accompanying proxy and return it promptly in the enclosed
postage prepaid envelope.
We do not expect that any matters other than the proposal to approve
the merger will be brought before the special meeting. However, if other matters
are properly presented for a vote, the persons named as proxies will vote in
accordance with their judgment with respect to those matters.
The persons named as proxies by a Community Financial shareholder may
propose and vote for one or more adjournments of the special meeting to permit
further solicitations of proxies in favor of approval of the merger. However,
the persons named as proxies will not vote any shares which are voted against
the approval of the merger in favor of such an adjournment.
Revoking Proxies
Community Financial shareholders of record may revoke their proxies at
any time before the time their proxies are voted at the special meeting. A
shareholder may revoke a proxy by taking any of the following actions:
* sending a written notice indicating his or her intention to revoke the
proxy, including by telegram or facsimile, to the Corporate Secretary
of Community Financial;
* submitting a later-dated signed proxy; or
* attending the special meeting and voting or abstaining from voting in
person.
Attendance at the special meeting alone without voting or abstaining
from the vote on the merger will not revoke a proxy. Any written notice of a
revocation of a proxy must be sent so that it will be delivered to the Corporate
Secretary of Community Financial, at Community Financial's principal executive
offices, before the voting begins at the special meeting.
Proxy Solicitation
Community Financial will pay the costs of printing this document and
all other costs of soliciting proxies. In addition to solicitation by mail, the
directors, officers and employees of Community Financial may solicit proxies
from shareholders of Community Financial by telephone or by other means of
communication. These directors, officers and employees will not be additionally
compensated but may be reimbursed for reasonable out-of-pocket expenses in
connection with the solicitation. Community Financial will arrange with
brokerage firms and other custodians, nominees and fiduciaries for the
forwarding of solicitation material to the beneficial owners of stock
13
held of record by such persons, and Community Financial will reimburse these
record holders for their reasonable out-of-pocket expenses.
Recommendation of the Community Financial Board
The Community Financial board has unanimously adopted the merger
agreement and believes that the proposed transaction is fair to and in the best
interests of Community Financial and its shareholders. The Community Financial
board unanimously recommends that Community Financial shareholders vote "FOR"
approval of the merger.
THE MERGER
The following is a description of the material information pertaining
to the merger. This description is qualified in its entirety by reference to the
full text of the merger agreement, a copy of which is attached as Appendix "A"
to this document and is incorporated by reference. All shareholders are urged to
read carefully the merger agreement, as well as the other appendices, in their
entirety.
The boards of directors of Synovus and Community Financial have
approved, and the proper officers of Synovus and Community Financial have
executed and delivered, the merger agreement.
Terms of the Merger
On the effective date of the merger, which will be specified in the
Articles of Merger to be filed with the Tennessee Secretary of State and the
Georgia Secretary of State, each issued and outstanding share of Community
Financial common stock will be converted into the right to receive between .860
and .969 shares of Synovus common stock. The exact exchange ratio will be
determined based on the average closing price of Synovus common stock during the
15-day period ending immediately prior to the effective date of the merger. If
the average price of Synovus common stock during the measurement period is
between $26.83 and $30.25 per share, the exchange ratio will be set so that each
Community Financial shareholder will receive approximately $26.00 worth of
Synovus common stock in exchange for each share of Community Financial common
stock the shareholder owns. If the average price of Synovus common stock during
the measurement period is equal to or less than $26.83 per share, the exchange
ratio will be set at .969 per share. If the average price of Synovus common
stock during the measurement period is equal to or greater than $30.25 per
share, the exchange ratio will be set at .860 per share.
The following table provides examples of the operation of the exchange
ratio. The first column shows various possible average closing prices of Synovus
common stock. The second column shows the exchange ratio which would be
applicable based on the corresponding price of Synovus common stock. The
exchange ratio is the number of shares of Synovus common stock which will be
issued in exchange for each share of Community Financial. The third column shows
the dollar value of the Synovus common stock, valued at the average closing
price of Synovus common stock during the measurement period, which Community
Financial shareholders will be entitled to receive in exchange for each share of
Community Financial common stock owned.
- ---------------------------------------------------------------------------------------------------------------------------
Average Closing Price of
Synovus Common Stock During Equivalent Price Per
Measurement Period Exchange Ratio Community Financial Share
- ------------------------------ -------------------------- ----------------------------------------
$30.25 or above .860 $26.02 or above
29.75 .874 26.00
29.25 .889 26.00
28.75 .904 25.99
28.25 .920 25.99
27.75 .937 26.00
27.25 .954 26.00
26.83 or below .969 26.00 or below
14
If the closing price of Synovus common stock decreases by more than 15%
from $26.83 and such decrease as measured from April 26, 2002 exceeds the change
in the aggregate closing price per share of an index of Southeastern Bank
Holding Company stocks consisting of BB&T Corporation, SunTrust Banks, Inc.,
SouthTrust Corporation, First Tennessee National Corporation, AmSouth
Bancorporation, Wachovia Corporation, Compass Bancshares, Inc., First Virginia
Banks, Inc., Hibernia Corporation, The Colonial BancGroup, Inc., Regions
Financial Corporation and Union Planters Corporation, on any date of
determination, including the effective date of the merger, by more than 15
percentage points, Community Financial may terminate the merger agreement.
If the closing price of Synovus common stock exceeds $30.25 by 15% or
more and such percentage increase over $30.25, as measured from the first date
the closing price of Synovus common stock exceeds $30.25, exceeds the change in
the aggregate closing price per share of the foregoing index of Southeastern
Bank Holding Company stocks on any date of determination, including the
effective date of the merger, by more than 15 percentage points, Synovus may
terminate the merger agreement.
You should obtain current stock price quotations for Synovus common
stock. The market price of Synovus common stock will fluctuate before and after
completion of the merger. You will not know when you vote on the merger
precisely what the shares of Synovus common stock will be worth when issued in
the merger.
After the effective date of the merger, outstanding certificates
representing shares of Community Financial common stock will represent shares of
Synovus common stock. Certificates representing shares of Community Financial
common stock may be surrendered to Synovus by the Community Financial
shareholders on or after the effective date of the merger for new certificates
representing shares of Synovus common stock. Until so surrendered to Synovus,
the certificates which previously represented shares of Community Financial
common stock will be deemed for all corporate purposes to evidence the ownership
of the respective number of shares of Synovus common stock which the holders are
entitled to receive upon their surrender to Synovus except for the payment of
dividends, which is subject to the exchange of stock certificates.
Until the stock certificates nominally representing shares of Community
Financial common stock are surrendered to Synovus in exchange for certificates
representing shares of Synovus common stock, no dividends payable as of any date
after the effective date of the merger on the shares of Synovus common stock
represented by the Community Financial common stock certificates will be paid.
However, Forms 1099 reporting the payment of such dividends will be filed with
the Internal Revenue Service and mailed to each shareholder. Upon the surrender
to Synovus of the Community Financial common stock certificates, Synovus will
pay to the record holders the amount of dividends which previously had become
payable, without interest, upon the shares of Synovus common stock represented
by the outstanding Community Financial common stock certificates.
Synovus will not issue fractional shares of Synovus common stock in the
merger. Instead, Synovus will pay cash, without interest, in lieu of fractional
shares, in an amount equal to such fractional part of a share of Synovus common
stock multiplied by the closing price per share of Synovus common stock on the
fifth business day immediately preceding the effective date of the merger.
The delivery of Synovus stock certificates and other amounts may be
subject to forfeiture under applicable escheat laws if Community Financial stock
certificates are not surrendered for exchange within the legally specified
periods of time, which vary with the state of residence of the certificate
holder. Therefore, we urge all Community Financial shareholders to surrender
their Community Financial stock certificates at the earliest possible date after
consummation of the merger in accordance with instructions provided to you by
Synovus in the letter of transmittal described in the following paragraph.
As soon as practicable following consummation of the merger, Synovus
will send each shareholder of Community Financial common stock a letter of
transmittal explaining the procedure to be followed in exchanging certificates
representing shares of Community Financial common stock for certificates
representing shares of Synovus common stock. Until the letter of transmittal is
received, shareholders of Community Financial should continue to hold their
certificates representing shares of Community Financial common stock. Do not
send any Community Financial stock certificates with your proxy card.
15
After the effective date of the merger, each outstanding Community
Financial stock option will be converted into an option to acquire shares of
Synovus common stock. The exercise price of the converted options and the number
of shares subject to the converted options will be adjusted in accordance with
the exchange ratio.
Background of the Merger
The Board of Directors of Community Financial has, over time,
considered the possibility of strategic combinations with a number of other
financial institutions in assessing the means by which to maximize the value of
Community Financial stock to its shareholders. The factors which the Board of
Directors of Community Financial have taken into account in evaluating potential
combinations have included, but were not limited to, compatibility of
management, employee and credit cultures, potential savings inherent in the
potential combination, as well as the comparability of business lines and
geographic locations. As part of its ongoing operations, management and the
Board of Directors of Community Financial regularly assess the financial
services industry as a whole, including the regulatory and competitive
environments for banking services. Since its formation as a bank holding company
in 1995, Community Financial has had a goal of providing a community-banking
alternative to consumers in the Nashville and middle Tennessee market. From time
to time, management of Community Financial has had informal discussions with
potential strategic partners in furtherance of this goal.
In December 2001, Community Financial engaged Trident Securities to
explore its strategic options, including potential merger partners. Pursuant to
this engagement, in January 2002, Trident Securities contacted a number of
financial institutions, including Synovus, regarding their interest in Community
Financial and the Nashville, Tennessee banking market. Indications of interest
were received from several financial institutions, and were analyzed and
considered by management and the Board of Directors of Community Financial with
the assistance of its financial and legal advisors.
On March 7 and 8, 2002, Synovus conducted preliminary due diligence of
Community Financial. On March 13, 2002, the Board of Directors of Community
Financial authorized management to pursue discussions with Synovus. On February
1, 2002 and March 25, 2002, Synovus and Community Financial, respectively,
entered into confidentiality agreements with respect to a potential transaction.
During the following weeks, management of the two companies and their respective
legal and financial advisors negotiated the terms of a proposed merger agreement
under which Community Financial would merge with and into Synovus. During this
time period, Community Financial conducted due diligence with respect to
Synovus, and Synovus concluded its due diligence with respect to Community
Financial.
On April 29, 2002, the Board of Directors of Community Financial held a
special meeting to consider the proposed merger with Synovus. At the meeting, J.
Hunter Atkins, CEO of Community Financial reviewed the strategic alternatives
available to Community Financial as well as the course of discussions and
rationale for the proposed merger with Synovus. The results of Community
Financial's due diligence investigation of Synovus were also reviewed with the
Board of Directors. Trident Securities summarized certain financial information
with respect to Synovus and the proposed transaction to the Community Financial
Board of Directors and rendered an opinion that, as of April 29, 2002, the terms
of the merger as set forth in the proposed merger agreement were fair to the
Community Financial shareholders from a financial point of view. Also at this
meeting, Miller & Martin, Community Financial's outside legal counsel, reviewed
with the Board of Directors the terms of the merger and the definitive agreement
documenting the proposed transaction. After questions by and discussions among
the members of the Community Financial Board of Directors, and after
consideration of the factors described under "Community Financial's Reasons For
the Merger; Recommendation of the Community Financial Board of Directors", the
Community Financial Board of Directors voted unanimously to approve the merger
agreement and the transactions contemplated thereby and to recommend the
approval of the merger agreement and the transactions contemplated thereby to
the Community Financial shareholders. Following the conclusion of the meeting,
Synovus and Community Financial executed and delivered the merger agreement.
Recommendation of Community Financial Board and Reasons for the Merger
On April 29, 2002 the board of directors of Community Financial
unanimously approved and adopted the merger agreement. The board of directors of
Community Financial believes that the merger and the terms and
16
provisions of the merger agreement are fair to and in the best interests of
Community Financial shareholders. The board of directors of Community Financial
unanimously recommends that you vote to approve the merger.
In reaching its decision to adopt and recommend approval of the merger
agreement, the board of directors of Community Financial considered a number of
factors, including the following:
* the value of the consideration to be received by Community Financial
shareholders relative to the book value and earnings per share of
Community Financial common stock;
* information concerning the financial condition, results of operations
and business prospects of Synovus;
* the fact that following the merger, The Bank of Nashville would
continue to operate under its existing name and management team;
* the financial terms of recent business combinations in the financial
services industry and a comparison of the multiples of selected
combinations with the terms of the proposed transaction with Synovus;
* the alternatives to the merger, including remaining an independent
institution;
* the competitive and regulatory environment for financial institutions
generally;
* the fact that the merger will enable Community Financial shareholders
to exchange their shares of Community Financial common stock, in a
tax-free transaction, for shares of common stock of a regional
company, the stock of which is widely held and actively traded; and
* the opinion of Trident Securities that the exchange ratio is fair,
from a financial point of view, to the shareholders of Community
Financial.
The foregoing discussion of the information and factors considered by
the Community Financial board is not intended to be exhaustive, but includes the
material factors considered. In view of the variety of factors considered in
connection with its evaluation of the merger and the offer price, the Community
Financial board did not find it practicable to, and did not, quantify or
otherwise assign relative weight to the specific factors considered in reaching
its determinations and recommendations, and individual directors may have given
differing weight to different factors.
Each member of the Board of Directors of Community Financial has
indicated that he intends to vote his shares of Community Financial stock in
favor of the merger.
COMMUNITY FINANCIAL'S BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT
COMMUNITY FINANCIAL SHAREHOLDERS VOTE FOR THE PROPOSAL TO APPROVE THE MERGER
AGREEMENT.
Management of Synovus believes that the merger will provide Synovus
with expanded market share opportunities for profitable long-term growth and
result in the addition of a well-suited and positioned banking organization into
Synovus' existing organization.
Opinion of Community Financial's Financial Advisor
Merger - General. Pursuant to an engagement letter dated December 27,
2001 between Community Financial and Trident Securities, Community Financial
retained Trident to act as its sole financial advisor in connection with a
possible merger and related matters. As part of its engagement, Trident agreed,
if requested by Community Financial, to render an opinion with respect to the
fairness, from a financial point of view, to the holders of Community Financial
common stock, of the consideration as set forth in the Agreement. Trident is a
nationally recognized specialist in the financial services industry, in general,
and in Southeastern banks in particular. Trident is regularly engaged in
evaluations of similar businesses and in advising institutions with regard to
mergers and acquisitions, as well as raising debt and equity capital for such
institutions. Community Financial selected Trident as its financial advisor
based upon Trident's qualifications, expertise and reputation in such capacity.
17
On April 29, 2002, Trident delivered its oral opinion that the
consideration was fair to Community Financial shareholders, from a financial
point of view, as of the date of such opinion. Trident also delivered to the
Community Financial board a written opinion dated as of April 29, 2002,
confirming its oral opinion. No limitations were imposed by Community Financial
on Trident with respect to the investigations made or the procedures followed in
rendering its opinion.
The full text of Trident's written opinion to the Community Financial
board, dated as of the date of this document, which sets forth the assumptions
made, matters considered and extent of review by Trident, is attached as
Appendix "B" and is incorporated herein by reference. It should be read
carefully and in its entirety in conjunction with this document. The following
summary of Trident's opinion is qualified in its entirety by reference to the
full text of the opinion. Trident's opinion is addressed to the Community
Financial board and does not constitute a recommendation to any shareholder of
Community Financial as to how such shareholder should vote at the Community
Financial special meeting described in this document.
Trident, in connection with rendering its opinion:
* reviewed Community Financial's audited financial statements for each
of the years ended December 31, 2001, December 31, 2000, and December
31, 1999, and Community Financial's Annual Report on Form 10-K for the
year ended December 31, 2001;
* reviewed Synovus' Annual Report to Shareholders and Annual Report on
Form 10-K for each of the years ended December 31, 2001, 2000 and
1999, including the audited financial statements contained therein;
* reviewed certain other public and non-public information, primarily
financial in nature, relating to the respective businesses, earnings,
assets and prospects of Community Financial and Synovus provided to
Trident or publicly available;
* participated in meetings and telephone conferences with members of
senior management of Community Financial and Synovus concerning the
financial condition, business, assets, financial forecasts and
prospects of the respective companies, as well as other matters
Trident believed relevant to its inquiry;
* reviewed certain stock market information for Community Financial and
Synovus common stock and compared it with similar information for
certain companies, the securities of which are publicly traded;
* compared the results of operations and financial condition of
Community Financial and Synovus with that of certain companies which
Trident deemed to be relevant for purposes of this opinion;
* reviewed the financial terms, to the extent publicly available, of
certain acquisition transactions which Trident deemed to be relevant
for purposes of this opinion;
* reviewed the Agreement dated April 29, 2002; and
* performed such other reviews and analyses as Trident deemed
appropriate.
The oral and written opinions provided by Trident to Community
Financial were necessarily based upon economic, monetary, financial market and
other relevant conditions as of the dates thereof.
In connection with its review and arriving at its opinion, Trident
relied upon the accuracy and completeness of the financial information and other
pertinent information provided by Community Financial and Synovus to Trident for
purposes of rendering its opinion. Trident did not assume any obligation to
independently verify any of the provided information as being complete and
accurate in all material respects. With regard to the financial forecasts
established and developed for Community Financial and Synovus with the input of
the respective
18
managements, Trident assumed that these forecasts reflected the most reasonable
estimates and judgments of Community Financial and Synovus as to the future
performance of the separate and combined entities and that the projections
provided a reasonable basis upon which Trident could formulate its opinion.
Community Financial does not publicly disclose such internal management
projections of the type utilized by Trident in connection with Trident's role as
financial advisor to Community Financial with respect to the review of the
merger. Therefore, such projections cannot be assumed to have been prepared with
a view towards public disclosure. The projections were based upon numerous
variables and assumptions that are inherently uncertain, including, among
others, factors relative to the general economic and competitive conditions
facing Community Financial and Synovus. Accordingly, actual results could vary
significantly from those set forth in the respective projections.
Trident does not claim to be an expert in the evaluation of loan
portfolios or the allowance for loan losses with respect thereto and therefore
assumes that such allowances for Community Financial and Synovus are adequate to
cover such losses. In addition, Trident does not assume responsibility for the
review of individual credit files and did not make an independent evaluation,
appraisal or physical inspection of the assets or individual properties of
Community Financial or Synovus, nor was Trident provided with such appraisals.
Furthermore, Trident assumes that the merger will be consummated in accordance
with the terms set forth in the Agreement, without any waiver of any material
terms or conditions by Community Financial, and that obtaining the necessary
regulatory approvals for the merger will not have an adverse effect on either
separate institution or the combined entity. Trident assumes that the merger
will be recorded as a "purchase" in accordance with generally accepted
accounting principles.
In connection with rendering its opinion to the Community Financial
board, Trident performed a variety of financial and comparative analyses, which
are briefly summarized below. Such summary of analyses does not purport to be a
complete description of the analyses performed by Trident. Moreover, Trident
believes that these analyses must be considered as a whole and that selecting
portions of such analyses and the factors considered by it, without considering
all such analyses and factors, could create an incomplete understanding of the
scope of the process underlying the analyses and, more importantly, the opinion
derived from them. The preparation of a financial advisor's opinion is a complex
process involving subjective judgments and is not necessarily susceptible to
partial analyses or a summary description of such analyses. In its full
analysis, Trident also included assumptions with respect to general economic,
financial market and other financial conditions. Furthermore, Trident drew from
its past experience in similar transactions, as well as its experience in the
valuation of securities and its general knowledge of the banking industry as a
whole. Any estimates in Trident's analyses were not necessarily indicative of
actual future results or values, which may significantly diverge more or less
favorably from such estimates. Estimates of company valuations do not purport to
be appraisals nor to necessarily reflect the prices at which companies or their
respective securities actually may be sold. None of the analyses performed by
Trident were assigned a greater significance by Trident than any other in
deriving its opinion.
Comparable Company Analysis: Trident reviewed and compared actual stock
market data and selected financial information for Community Financial with
corresponding information for 12 publicly traded banks with assets less than
$2.0 billion and located in metropolitan and suburban markets primarily in the
southeast, (the "Community Financial Peer Group"). The Community Financial Peer
Group is listed below:
1.Banc Corporation Birmingham, AL 7.Fidelity National Corp Atlanta, GA
2.Bank of the Ozarks Little Rock, AR 8.First Security Bancorp Lexington, KY
3.CCF Holding Company Jonesboro, GA 9.GB&T Bancshares Gainesville, GA
4.Carrollton Bancorp Baltimore, MD 10.Main Street Banks Kennesaw, GA
5.Cavalry Bancorp Murfreesboro, TN 11.Republic Bancorp Louisville, KY
6.Columbia Bancorp Columbia, MD 12.S.Y. Bancorp Louisville, KY
The table below represents a summary analysis of the Community
Financial Peer Group based on market prices as of April 23, 2002 and the latest
publicly available financial data as of or for the last twelve months ended
December 31, 2001:
Community
Mean Median Financial (1)
----- ------- ----------
Price to last twelve months earnings 15.6x 15.2x 24.3x
Price to book value 168.4% 165.1% 208.0%
19
Price to tangible book value 203.7% 166.5% 208.0%
Dividend yield 2.5% 2.6% 2.2%
Return on average assets .98% 1.06% .74%
Return on average equity 11.6% 11.8% 8.7%
Capital to assets ratio 7.4% 7.6% 7.8%
Non-performing Assets Ratio 0.53% 0.50% 0.72%
(1)Community Financial valuation based on price of $26.
Trident reviewed and compared actual stock market data and actual and
estimated selected financial information for Synovus with corresponding
information for 13 publicly traded regional banks with assets between $6 billion
and $35 billion and primarily located in the southeast, (the "Synovus Peer
Group"). The Synovus Peer Group is listed below:
1.BancorpSouth Tupelo, MS 8.First Virginia Banks Falls Church,
VA
2.Colonial BancGroup Montgomery, AL 9.FirstMerit Corporation Akron, OH
3.Commerce Bancshares Kansas City, MO 10.Mercantile Bankshares Baltimore, MD
4.Compass Bancshares Birmingham, AL 11.National Commerce Memphis, TN
5.Cullen/Frost Bankers San Antonio, TX 12.Sky Financial Group Bowling Green,
OH
6.F.N.B. Corporation Naples, FL 13.Union Planters Corp Memphis, TN
7.First Tennessee Memphis, TN
The following table below represents a summary analysis of the Synovus
Peer Group based on market prices as of April 23, 2002 and the latest publicly
available financial data as of or for the last twelve months ended December,
2001:
Mean Median Synovus
----- ------ -----------
Price to last twelve month earnings 15.6x 15.5x 24.8x
Price to book value 218.9% 229.0% 466.8%
Price to tangible book value 266.8% 245.3% 518.0%
Dividend yield 2.5% 2.6% 2.2%
Return on average assets 1.38% 1.35% 2.04%
Return on average equity 15.3% 14.7% 20.0%
Capital to assets ratio 7.9% 7.6% 9.3%
Non Performing Asset Ratio 0.63% 0.55% 0.57%
Comparable Transaction Analysis: Trident reviewed and compared actual
information for groups of comparable recent (announced in preceding 12 months)
transactions it deemed pertinent to an analysis of the merger. The implied
acquisition price was compared to the median ratios of (i) price to last twelve
months earnings, (ii) price to book value, and (iii) core deposit premium for
each of the following five pending and recently completed transaction comparable
groups:
* all bank acquisitions with the selling bank headquartered in Alabama,
North Carolina, Georgia, South Carolina, Tennessee, Virginia and West
Virginia ("Comparable Regional Deals");
* all bank acquisitions with the selling bank having assets between $300
million and $500 million ("Comparable Asset Size");
* all bank acquisitions with the selling bank having an equity to assets
ratio between 7.0% and 8.0% ("Comparable Capitalization");
* all bank acquisitions with the selling bank having a return on average
equity between 7.0% and 9.0% ("Comparable Profitability");
* eight recently announced transactions with multiple similar
characteristics to Community Financial ("Guideline Companies").
20
The following table represents a summary analysis of the
comparable transactions analyzed by Trident based on the announced transaction
values:
Tang. Median As a As a
Book Price to Premium Premium
Number Value LTM EPS to Deposits to Market Price
------ ----- ------- ----------- ---------------
Comparable Regional Deals 23 174% 20.3x 12.3% 48.6%
Comparable Asset Size 16 233% 16.1x 17.7% 42.3%
Comparable Capitalization 32 204% 16.7x 10.9% 38.3%
Comparable Profitability 23 148% 19.5x 8.5% 33.9%
Guideline Companies 8 224% 20.1x 16.8% 28.5%
Community Financial 208% 24.3x 17.6% 38.0%
Community Financial pricing data based on a price of $26.
Based on the above information, Trident concluded that this analysis showed an
imputed reference range of $17.00 to $30.00 per share.
Contribution Analysis: Trident analyzed the contribution of each
company to the pro forma company relative to the approximate ownership of the
pro forma company. The analysis indicated that Community Financial shareholders,
would hold approximately 1.0% of the pro forma diluted shares. Community
Financial's approximate contributions are listed below by category:
Community
Financial
-----------------
Assets 2.8%
Loans 2.7%
Deposits 2.8%
Equity 2.2%
Last twelve month earnings 1.1%
2002 estimated earnings 1.1%
Accretion/Dilution Analysis: On the basis of current and projected
financial data, as well as estimated one-time costs related to the transaction,
Trident compared pro forma per share equivalent earnings, book value and
dividends to the stand-alone projections for Community Financial and Synovus.
The exchange ratio used in this analysis was .9517 shares of Synovus for each
share of Community Financial. The actual exchange ratio will not be determined
until a pricing period prior to closing. The exchange ratio can range from .8595
to .9691, based on Synovus' average closing price over the pricing period.
The accretion/dilution analysis demonstrated, among other things, that
for each share of Community Financial exchanged for a share of Synovus the
merger would result in:
* 0.9% dilution to fully diluted earnings per share for Community
Financial shareholders in the first full year of combined operations;
* 0.0% accretion to earnings per share for Synovus shareholders in the
first full year of combined operations, and remaining relatively flat
over the period of the analysis;
* 16.1% lower cash dividends for Community Financial immediately;
* 0.0% increase in cash dividends for Synovus shareholders;
21
* 55.4% dilution to book value per share for Community Financial; and
* 3.7% accretion to book value per share for Synovus shareholders.
Discounted Earnings Analysis: Trident performed a discounted earnings
analysis with regard to Community Financial on a stand alone basis. This
analysis utilized a range of discount rates of 11.0% to 13.0% and a range of
terminal earnings multiples of 13.0x to 15.0x. The analysis resulted in a range
of present values of $16.41 per share to $26.78 per share for Community
Financial. As indicated above, this analysis was based on estimates and is not
necessarily indicative of actual values or actual future results and does not
purport to reflect the prices at which any securities may trade at the present
or at any time in the future. Trident noted that the discounted earnings
analysis was included because it is a widely used valuation methodology, but
noted that the results of such methodology are highly dependent upon the
numerous assumptions that must be made, including earnings growth rates,
discount rates, and terminal values.
Other Analyses: Trident also reviewed certain other information
including pro forma estimated balance sheet composition, pro forma financial
performance and pro forma deposit market share.
No company used as a comparison in the above analyses is identical to
Community Financial, Synovus or the combined entity and no other transaction is
identical to the merger. Accordingly, an analysis of the results of the
foregoing is not purely mathematical; rather, such analyses involve complex
considerations and judgments concerning differences in financial market and
operating characteristics of the companies and other factors that could affect
the public trading volume of the companies to which Community Financial, Synovus
and the combined entity are being compared.
In connection with delivery of its opinion, Trident performed
procedures to update, as necessary, certain of the analyses described above and
reviewed the assumptions on which such analyses described above were based and
the factors considered in connection therewith. Trident did not perform any
analyses in addition to those described above in updating the opinion.
For its financial advisory services provided to Community Financial,
Trident has been paid fees of $120,000 to date and will be paid an approximate
fee of $725,000 at the time of closing of the merger. In addition, Community
Financial has agreed to reimburse Trident for all reasonable out-of-pocket
expenses, incurred by it on Community Financial's behalf, as well as indemnify
Trident against certain liabilities, including any which may arise under the
federal securities laws.
Trident is a member of all principal securities exchanges in the United
States and in the conduct of its broker-dealer activities has from time to time
purchased securities from, and sold securities to, Community Financial and/or
Synovus. As a market maker Trident may also have purchased and sold the
securities of Community Financial for Trident's own account and for the accounts
of its customers. In the past, Trident has also provided certain investment
banking services for Community Financial and has received customary compensation
for such services.
Conditions to the Merger
Each party's obligation to effect the merger is subject to the
satisfaction or waiver of conditions which include, in addition to other closing
conditions, the following:
* approval of the merger agreement and the transactions contemplated by
the merger agreement by the affirmative vote of the holders of a
majority of the shares of Community Financial common stock;
* approval of the merger agreement and the transactions contemplated by
the merger agreement by the Federal Reserve Board, the Georgia
Department of Banking and Finance and the Tennessee Department of
Financial Institutions, and the receipt of all other regulatory
consents and approvals that are necessary to the consummation of the
transactions contemplated by the merger agreement;
* the satisfaction of all other statutory or regulatory requirements
which are necessary to the consummation of the transactions
contemplated by the merger agreement;
22
* no party shall be subject to any order, decree or injunction or any
other action of a United States federal or state court or a United
States federal or state governmental, regulatory or administrative
agency or commission restraining, enjoining or otherwise prohibiting
the transactions contemplated by the merger agreement;
* the registration statement of which this prospectus forms a part will
have become effective and no stop order suspending the effectiveness
of the registration statement will have been issued and no proceedings
for that purpose will have been initiated or threatened by the SEC or
any other regulatory authority; and
* each party shall have received an opinion from KPMG LLP to the effect
that the merger will be treated for federal income tax purposes as a
tax-free reorganization within the meaning of Section 368 of the
Internal Revenue Code.
The obligation of Synovus to effect the merger is subject to the
satisfaction or waiver of conditions, which include, in addition to the other
closing conditions, the following:
* each of the representations, warranties and covenants of Community
Financial contained in the merger agreement will be true on, or
complied with by, the effective date of the merger in all material
respects as if made on such date (or on the date when made in the case
of any representation or warranty which specifically relates to an
earlier date) and Synovus will have received a certificate signed by
the Chief Executive Officer of Community Financial, dated the
effective date, to such effect;
* there will be no discovery of facts, or actual or threatened causes of
action, investigations or proceedings by or before any court or other
governmental body that relates to or involves Community Financial: (a)
which, in the reasonable judgment of Synovus, would, or which may be
forseen to have, a material adverse effect upon Community Financial or
the consummation of the transactions contemplated by the merger
agreement; (b) that challenges the validity or legality of the merger
agreement or the consummation of the transactions contemplated by the
merger agreement; or (c) that seeks to restrain or invalidate the
consummation of the transactions contemplated by the merger agreement
or seeks damages in connection therewith;
* Synovus will not have learned of any fact or condition with respect to
the business, properties, assets, liabilities, deposit relationships
or earnings of Community Financial which, in the reasonable judgment
of Synovus, is materially at variance with one or more of the
warranties or representations set forth in the merger agreement or
which, in the reasonable judgment of Synovus, has or will have a
material adverse effect on Community Financial;
* J. Hunter Atkins will have entered into an employment agreement with
Synovus;
* on the effective date of the merger, The Bank of Nashville will have a
CAMEL rating of at least 2 and a Compliance Rating and Community
Reinvestment Act Rating of at least Satisfactory;
* on the effective date of the merger, Community Financial will have a
loan loss reserve of at least 1.50% of loans and which will be
adequate in all material respects under generally accepted accounting
principles applicable to banks; and
* Community Financial will have delivered to Synovus certain
environmental reports.
The obligation of Community Financial to effect the merger is subject
to the satisfaction or waiver of conditions, which include, in addition to other
closing conditions, the following;
* each of the representations, warranties and covenants of Synovus
contained in the merger agreement will be true on, or complied with
by, the effective date of the merger in all material respects as if
made on such date (or on the date when made in the case of any
representation or warranty which specifically relates to an earlier
date) and Community Financial will have received a certificate signed
by the Chief Executive Officer of Synovus, dated the effective date,
to such effect;
* the listing for trading of the shares of Synovus common stock to be
issued pursuant to the terms of the
23
merger agreement on the NYSE shall have been approved by the NYSE
subject to official notice of issuance;
* there will be no discovery of facts, or actual or threatened causes of
action, investigations or proceedings by or before any court or other
governmental body that relates to or involves Synovus: (a) which, in
the reasonable judgment of Community Financial, would, or which may be
forseen to have, have a material adverse effect upon either Synovus or
the consummation of the transactions contemplated by the merger
agreement; (b) that challenges the validity or legality of the merger
agreement or the consummation of the transactions contemplated by the
merger agreement; or (c) that seeks to restrain or invalidate the
consummation of the transactions contemplated by the merger agreement
or seeks damages in connection therewith;
* Community Financial will not have learned of any fact or condition
with respect to the business, properties, assets, liabilities, deposit
relationships or earnings of Synovus which, in the reasonable judgment
of Community Financial, is materially at variance with one or more of
the warranties or representations set forth in the merger agreement or
which, in the reasonable judgment of Community Financial, has or will
have a material adverse effect on Synovus;
* Community Financial shall have received a letter from Trident
Securities to the effect that, in the opinion of such firm, the
exchange ratio is fair from a financial point of view to the holders
of Community Financial stock; and
* Community Financial shall have received from the Senior Deputy General
Counsel of Synovus an opinion to the effect that, among other
opinions, the shares of Synovus common stock to be issued in the
merger are duly authorized, validly issued, fully paid, nonassessable,
and not subject to any preemptive rights.
No Solicitation
In the merger agreement, Community Financial has agreed that it will
not solicit or encourage any inquiry or proposal relating to the merger or
consolidation of Community Financial with any entity or the acquisition of all
or a significant portion of its assets or properties or equity securities by any
person or entity, and that, subject to the fiduciary duties of the board of
directors of Community Financial, it will not negotiate with respect to any such
transaction, nor reach any agreement or understanding with respect thereto.
Community Financial has also agreed that it will promptly notify Synovus in the
event it receives any inquiry or proposal relating to any such transaction.
These provisions are intended to increase the likelihood that the merger will be
consummated in accordance with the terms of the merger agreement and may have
the effect of discouraging persons who might now or prior to the effective date
of the merger be interested in acquiring all of or a significant interest in
Community Financial from considering or proposing such an acquisition.
Conduct of Business of Community Financial Pending the Merger
The merger agreement provides that prior to the effective date of the
merger, Community Financial and its subsidiaries will conduct business only in
the ordinary course and will not, without the prior written consent of Synovus:
* issue any options to purchase capital stock or issue any shares of
capital stock, other than shares of Community Financial common stock
issued in connection with the exercise of currently outstanding
options to purchase shares of Community Financial common stock;
* declare, set aside, or pay any dividend or distribution with respect
to the capital stock of Community Financial, other than normal and
customary quarterly cash dividends in accordance with past practices;
* directly or indirectly redeem, purchase or otherwise acquire any
capital stock of Community Financial or its subsidiaries;
* effect a split or reclassification of the capital stock of Community
Financial or its subsidiaries or a recapitalization of Community
Financial or its subsidiaries;
24
* amend the Articles of Association, charter or bylaws of Community
Financial or its subsidiaries;
* grant any increase in the salaries payable or to become payable by
Community Financial or its subsidiaries to any employee other than
normal, annual salary increases to be made with regard to employees;
* make any change in any bonus, group insurance, pension, profit
sharing, deferred compensation, or other benefit plan, payment or
arrangement made to, for or with respect to any employees or
directors, except to the extent such changes are required by
applicable laws or regulations;
* enter into, terminate, modify or amend any contract, lease or other
agreement with any officer or director of Community Financial or its
subsidiaries or any "associate" of any such officer or director, as
such term is defined in Regulation 14A under the Securities Exchange
Act of 1934, as amended, other than in the ordinary course of
Community Financial's banking business;
* incur or assume any liabilities, other than in the ordinary course of
business;
* dispose of any of its assets or properties, other than in the ordinary
course of business; or
* take any other action not in the ordinary course of business.
Regulatory Approvals
Consummation of the merger and the other transactions contemplated by
the merger agreement is subject to, and conditioned upon, receipt of the
approvals from the Federal Reserve Board, the Georgia Department of Banking and
Finance and the Tennessee Department of Financial Institutions. Applications in
connection with the merger were filed with the regulatory agencies on or about
May 16, 2002. The merger has been approved by the Georgia Department of Banking
and Finance but has not yet been approved by the other regulatory agencies.
The merger cannot be consummated for 30 days after its approval by the Federal
Reserve Board, although this period may be shortened to 15 days by the U.S.
Attorney General. During this period, the United States Justice Department may
challenge the merger on antitrust grounds.
There can be no assurance that the regulatory agencies will approve or
take other required action with respect to the merger. Synovus and Community
Financial are not aware of any governmental approvals or actions that are
required in order to consummate the merger except as described above. Should
other approvals or actions be required, it is contemplated that Synovus and
Community Financial would seek the approval or action. There can be no assurance
as to whether or when any other approval or action, if required, could be
obtained.
Waiver and Amendment
Before the effective date of the merger, any provision of the merger
agreement may be waived in writing by the party entitled to the benefits of such
provision or by both parties, to the extent allowed by law. In addition, the
merger agreement may be amended at any time, to the extent allowed by law, by an
agreement in writing between the parties after approval of their respective
boards of directors.
Termination and Termination Fee
The merger agreement may be terminated prior to the effective date
either before or after its approval by the shareholders of Community Financial.
The merger agreement may be terminated by Synovus or Community Financial:
* by mutual consent of Synovus and Community Financial;
* if consummation of the merger does not occur by reason of the failure
of any of the conditions precedent set forth in the merger agreement
unless the failure to meet the conditions precedent is due to a breach
of the merger agreement by the terminating party; or
* if the merger is not consummated by October 31, 2002, unless the
failure to consummate by such time is due to the breach of the merger
agreement by the terminating party;
25
In addition, the merger agreement may be terminated by Community
Financial if the closing price of Synovus common stock decreases by more than
15% from $26.83 and such decrease as measured from April 26, 2002 exceeds the
change in the aggregate closing price per share of an index of Southeastern Bank
Holding Company stocks consisting of BB&T Corporation, SunTrust Banks, Inc.,
SouthTrust Corporation, First Tennessee National Corporation, AmSouth
Bancorporation, Wachovia Corporation, Compass Bancshares, Inc., First Virginia
Banks, Inc., Hibernia Corporation, The Colonial BancGroup, Inc., Regions
Financial Corporation and Union Planters Corporation, on any date of
determination, including the effective date of the merger, by more than 15
percentage points.
The merger agreement may be terminated by Synovus if the closing price
of Synovus common stock exceeds $30.25 by 15% or more and such percentage
increase over $30.25, as measured from the first date the closing price of
Synovus common stock exceeds $30.25, exceeds the change in the aggregate closing
price per share of the foregoing index of Southeastern Bank Holding Company
stocks on any date of determination, including the effective date of the merger,
by more than 15 percentage points.
If either party terminates the merger agreement due to the failure of
the other party to satisfy its representations, warranties or covenants in the
agreement, the terminating party will be entitled to a cash payment from the
other party in the amount of the terminating party's expenses related to the
merger, up to a maximum of $150,000.
Interests of Community Financial's Directors and Officers in the Merger
Some members of the Community Financial board of directors and
management have interests in the merger in addition to their interests generally
as shareholders of Community Financial. The Community Financial board of
directors was aware of these interests and considered them, in addition to other
matters, in approving the merger agreement.
Employment Agreements. It is a condition to the merger that J. Hunter
Atkins, President and Chief Executive Officer of Community Financial, enter into
an employment agreement with Synovus before the effective date of the merger.
The employment agreement provides for Mr. Atkins' continued employment as the
President and Chief Executive Officer of The Bank of Nashville for a period of
five years following the merger. Mr. Atkins will be granted options to purchase
15,000 shares of common stock of Synovus at fair market value in connection with
the employment agreement. In addition, Synovus will assume the obligations of
Community Financial under its current employment agreement with Attilio F.
Galli, Executive Vice President and Chief Financial Officer of Community
Financial, providing for his employment as Chief Financial Officer of The Bank
of Nashville through March 1, 2003. The employment agreement automatically
renews for successive one year terms unless terminated by either party at least
30 days prior to the expiration of any term.
As part of Mr. Atkins' employment agreement, Synovus has also agreed to
enter into its standard change of control agreement. The agreement provides
severance pay and continuation of certain benefits in the event of a change of
control of Synovus. In order to receive benefits under the agreement, the
executive's employment must be terminated involuntarily and without cause,
whether actually or constructively, within one year following a change of
control or the executive may voluntarily or involuntarily terminate employment
during the thirteenth month following a change of control.
Community Financial Stock Options. Community Financial has granted
stock options from time to time to its executive officers and directors. All of
the outstanding Community Financial stock options which are not otherwise fully
exercisable prior to the merger will become immediately exercisable upon
completion of the merger.
Employee Benefits
Synovus has agreed in the merger agreement that, following the
effective date of the merger, Synovus will provide to employees of Community
Financial employee benefits, including without limitation pension benefits,
health and welfare benefits, life insurance and vacation and severance
arrangements, on terms and conditions that are substantially similar to those
currently provided by Community Financial. As soon as administratively and
financially practicable following the effective date of the merger, Synovus has
agreed to provide generally to
26
employees of Community Financial and its subsidiaries employee benefits which
are substantially similar to those provided by Synovus and its subsidiaries to
their similarly situated employees.
Tax Opinion
The following is a summary description of the material anticipated
federal income tax consequences of the transaction generally applicable to the
shareholders of Community Financial and to Synovus and Community Financial. This
summary is not intended to be a complete description of all of the federal
income tax consequences of the transaction. No information is provided with
respect to the tax consequences of the transaction under any other tax laws,
including applicable state, local and foreign tax laws. In addition, the
following discussion may not be applicable with respect to specific categories
of shareholders, including but not limited to persons who are corporations,
trusts, dealers in securities, financial institutions, insurance companies or
tax exempt organizations; persons who are not United States citizens or resident
aliens or domestic entities (partnerships or trusts); persons who are subject to
alternative minimum tax (to the extent that tax affects the tax consequences of
the merger) or are subject to the "golden parachute" provisions of the Internal
Revenue Code of 1986 (to the extent that tax affects the tax consequences of the
merger); persons who acquired Community Financial common stock with employee
stock options or otherwise as compensation if such shares are subject to any
restriction related to employment; persons who do not hold their shares as
capital assets; or persons who hold their shares as part of a "straddle" or
"conversion transaction." No ruling has been or will be requested from the IRS
with respect to the tax effects of the merger. The federal income tax laws are
complex, and a shareholder's individual circumstances may affect the tax
consequences to the shareholder.
Synovus and Community Financial have received an opinion from KPMG LLP,
to the effect that:
* the merger of Community Financial with and into Synovus will qualify
as a tax-free reorganization under Section 368(a) of the Internal
Revenue Code and that no gain or loss will be recognized by the
shareholders of Community Financial upon their receipt of shares of
Synovus common stock;
* the basis of Synovus common stock received by each Community Financial
shareholder will be the same as the basis of Community Financial
common stock being surrendered;
* the holding period of Synovus common stock received by each Community
Financial shareholder will include the holding period of the Community
Financial common stock being exchanged, provided that the Community
Financial common stock is held as a capital asset at the effective
date of the merger;
* any cash payments received by Community Financial shareholders in lieu
of their receipt of fractional shares of Synovus common stock will be
treated as if such fractional shares were redeemed by Synovus and
taxed under Section 302 of the Code as an exchange or dividend; and
* the share purchase rights, which are described on pages 31 through 33
of this document, should be treated as an attribute of the Synovus
common stock and no gain or loss should be recognized by shareholders
of Community Financial upon receipt of such share purchase rights.
The tax opinion was issued on June 11, 2002. The tax opinion is based
upon assumptions and representations by the management of Synovus and/or
Community Financial, including, in general, the absence of any plan or intention
of Community Financial shareholders to sell or otherwise dispose of any amount
of Synovus common stock received in the merger that would violate continuity of
interest requirements. KPMG LLP serves Synovus and Community Financial Group as
their independent public accountants.
All Community Financial shareholders are urged to consult their own tax
advisors as to the specific consequences to them of the merger under federal,
state, local and any other applicable income tax laws.
Accounting Treatment
The merger will be accounted for by Synovus as a purchase transaction
in accordance with generally accepted accounting principles in the United States
of America. One effect of such accounting treatment is that the earnings of
Community Financial will be combined with the earnings of Synovus only from and
after the effective date of the merger. The pro forma calculations included in
this document reflect the impact of adopting Statement
27
of Financial Accounting Standards ("SFAS") Number 141, Business Combinations,
and SFAS Number 142, Goodwill and Other Intangible Assets.
Expenses
The merger agreement provides that Synovus and Community Financial will
each pay its own expenses in connection with the merger and related
transactions, including, but not limited to, the fees and expenses of its own
investment bankers, legal counsel and accountants.
New York Stock Exchange Listing
Synovus common stock is listed on the NYSE. The shares of Synovus
common stock to be issued to the shareholders of Community Financial in the
merger will be listed on the NYSE.
Resales of Synovus Common Stock
The shares of Synovus common stock issued pursuant to the merger
agreement will be freely transferable under the Securities Act of 1933, except
for shares issued to any shareholder who may be deemed to be an "affiliate" of
Community Financial for purposes of Rule 145 under the Securities Act as of the
date of the Community Financial special meeting. Affiliates may not sell their
shares of Synovus common stock acquired in connection with the merger except
pursuant to an effective registration statement under the Securities Act
covering the resale of such shares or in compliance with Rule 145 promulgated
under the Securities Act or another applicable exemption from the registration
requirements of the Securities Act. Rule 145 imposes restrictions on the manner
in which an affiliate may resell and the quantity of any resale of any of the
shares of Synovus common stock received by the affiliate in the merger. Persons
who may be deemed to be affiliates of Community Financial generally include
individuals or entities that control, are controlled by or are under common
control with Community Financial and may include executive officers and
directors of Community Financial as well as principal shareholders of Community
Financial.
Community Financial has agreed in the merger agreement to use its best
efforts to cause each director, executive officer and other person who is an
affiliate of Community Financial to enter into an agreement with Synovus
providing that such person will not sell, pledge, transfer or otherwise dispose
of shares of Community Financial common stock owned by such person or Synovus
common stock to be received by such person in the merger except in compliance
with Rule 145 or in a transaction exempt under the Securities Act. This
prospectus does not cover resales of Synovus common stock following consummation
of the merger, and no person may make use of this prospectus in connection with
any such resale.
DESCRIPTION OF STOCK AND EFFECT OF MERGER ON RIGHTS OF
COMMUNITY FINANCIAL SHAREHOLDERS
If the merger is completed, all holders of Community Financial common
stock and options will become holders of shares of Synovus common stock or
holders of options for shares of Synovus common stock. The rights of a holder of
Synovus common stock are similar in some respects and different in other
respects from the rights of a holder of Community Financial common stock. The
rights of Community Financial shareholders are currently governed by the
Tennessee Business Corporation Act and the Charter and bylaws of Community
Financial. The rights of Synovus shareholders are currently governed by the
Georgia Business Corporation Code and the Articles of Incorporation and bylaws
of Synovus. The following discussion summarizes the material differences between
the current rights of Community Financial shareholders and the rights they will
have as Synovus shareholders following the merger.
The following comparison of shareholders' rights is necessarily a
summary, is not intended to be complete or to identify all differences that may,
under given situations, be material to shareholders and is subject, in all
respects, and is qualified by reference to the Tennessee Business Corporation
Act, Community Financial's Charter and bylaws, the Georgia Business Corporation
Code and Synovus' Articles of Incorporation and bylaws.
28
SYNOVUS COMMUNITY FINANCIAL
------- --------------------
* Ten votes for each share held, except in limited * One vote for each share held
circumstances described below
* No cumulative voting rights in the election of * Cumulative voting rights - same as Synovus
directors, meaning that the holders of a plurality of
the shares elect the entire board of directors
* Dividends may be paid from funds legally * Dividends - same as Synovus
available, subject to contractual and regulatory
restrictions
* Right to participate pro rata in distribution of * Liquidation - same as Synovus
assets upon liquidation
* No pre-emptive or other rights to subscribe for * Shareholders of Community Financial common
any additional shares or securities stock have pre-emptive rights
* No conversion rights * Conversion rights - same as Synovus
* Directors serve staggered 3-year terms * Director terms - same as Synovus
* Some corporate actions, including business * Corporate actions require the affirmative
combinations, require the affirmative action or vote vote of a majority of the votes cast at the
of 66-2/3% of the votes entitled to be cast by the meeting, unless otherwise required by law,
shareholders of all voting stock except that certain business transactions
involving an interested shareholder require the
affirmative vote of the holders of at least 75%
of the outstanding shares of capital stock
entitled to vote in the election of directors.
* No preferred stock is authorized * No preferred stock has been designated
* Common Stock Purchase Rights trade with shares as * No comparable provision
described below
Synovus Common Stock
Synovus is incorporated under the Georgia Business Corporation Code.
Synovus is authorized to issue 600,000,000 shares of Synovus common stock, of
which 295,304,125 shares were outstanding on April 30, 2002. Synovus has no
preferred stock authorized. Synovus' board of directors may at any time, without
additional approval of the holders of Synovus common stock, issue authorized but
unissued shares of Synovus common stock.
As described below, Synovus' Articles of Incorporation and bylaws
presently contain several provisions which may make Synovus a less attractive
target for an acquisition of control by an outsider who lacks the support of
Synovus' board of directors.
Voting Rights; Anti-Takeover Effects; The Voting Amendment
Under an amendment to Synovus' Articles of Incorporation and bylaws
which became effective on April 24, 1986, referred to in this document as the
"voting amendment," shareholders of Synovus common stock are entitled to ten
votes on each matter submitted to a vote at a meeting of shareholders for each
share of Synovus common stock which:
29
* has had the same beneficial owner since April 24, 1986;
* was acquired by reason of participation in a dividend reinvestment
plan offered by Synovus and is held by the same beneficial owner for
whom it was acquired under such plan;
* is held by the same beneficial owner to whom it was issued as a result
of an acquisition of a company or business by Synovus where the
resolutions adopted by Synovus' board of directors approving such
issuance specifically reference and grant such rights, including
shares of Synovus common stock to be issued to the former shareholders
of Community Financial upon consummation of the merger;
* was acquired under any employee, officer and/or director benefit plan
maintained for one or more employees, officers and/or directors of
Synovus and/or its subsidiaries, and is held by the same beneficial
owner for whom it was acquired under such plan;
* is held by the same beneficial owner to whom it was issued by Synovus,
or to whom it was transferred by Synovus from treasury shares, and the
resolutions adopted by Synovus' board of directors approving such
issuance and/or transfer specifically reference and grant such rights;
* has been beneficially owned continuously by the same shareholder for a
period of 48 consecutive months before the record date of any meeting
of shareholders at which the share is eligible to be voted;
* was acquired as a direct result of a stock split, stock dividend or
other type of share distribution if the share as to which it was
distributed has had the same beneficial owner for a period of 48
consecutive months before the record date of any meeting of
shareholders at which the share is eligible to be voted; or
* is owned by a holder who, in addition to shares which are beneficially
owned under any of the other requirements set forth above, is the
beneficial owner of less than 1,139,063 shares of Synovus common
stock, which amount has been appropriately adjusted to reflect the
stock splits which have occurred subsequent to April 24, 1986 and with
such amount to be appropriately adjusted to properly reflect any other
change in Synovus common stock by means of a stock split, a stock
dividend, a recapitalization or other similar action occurring after
April 24, 1986.
Holders of shares of Synovus common stock not described above are
entitled to one vote per share for each such share. A shareholder may own both
ten-vote shares and one-vote shares, in which case he or she will be entitled to
ten votes for each ten-vote share and one vote for each one-vote share.
In connection with various meetings of Synovus' shareholders,
shareholders are required to submit to Synovus' board of directors satisfactory
proof necessary for it to determine whether such shareholders' shares of Synovus
common stock are ten-vote shares. If such information is not provided to
Synovus' board of directors, shareholders who would, if they had provided such
information, be entitled to ten votes per share, are entitled to only one vote
per share.
As Synovus common stock is registered with the SEC and is listed on the
NYSE, Synovus common stock is subject to the provisions of an NYSE rule, which,
in general, prohibits a company's common stock and equity securities from being
authorized or remaining authorized for listing on the NYSE if the company issues
securities or takes other corporate action that would have the effect of
nullifying, restricting or disparately reducing the voting rights of existing
shareholders of the company. However, such rule contains a "grandfather"
provision, under which Synovus' voting amendment qualifies, which, in general,
permits grandfathered disparate voting rights plans to continue to operate as
adopted. Synovus' management believes that all current shareholders of Synovus
common stock are entitled to ten votes per share, and as such, the further
issuance of any ten-vote shares would not disenfranchise any existing
shareholders. In the event it is determined in the future that Synovus cannot
continue to issue ten-vote shares in mergers and acquisitions, Synovus will
consider repealing the voting amendment and restoring the principle of one
share/one vote.
If the merger is approved, present shareholders of Community Financial
common stock, as future shareholders of Synovus common stock, will, under the
voting amendment described above, be entitled to ten votes
30
per share for each share of Synovus common stock received by them on the
effective date of the merger. Each shareholder of Community Financial may also
acquire by purchase, stock dividend or otherwise, up to 1,139,063 additional
shares of Synovus common stock which will also be entitled to ten votes per
share. However, if a Community Financial shareholder acquires by purchase, stock
dividend or otherwise, more than 1,139,063 additional shares of Synovus common
stock, he or she will be entitled to only receive one vote per share for each of
the shares in excess of 1,139,063 shares until they have been held for four
years.
Except with respect to voting, ten-vote shares and one-vote shares are
identical in all respects and constitute a single class of stock, i.e., Synovus
common stock. Neither the ten-vote shares nor the one-vote shares have a
preference over the other with regard to dividends or upon liquidation. Synovus
common stock does not carry any pre-emptive rights enabling a holder to
subscribe for or receive shares of Synovus common stock.
The Rights Plan
Synovus has adopted a shareholder rights plan under which holders of
shares of Synovus common stock also hold rights to purchase securities that may
be exercised upon the occurrence of "triggering events." Shareholder rights
plans such as Synovus' plan are intended to encourage potential hostile
acquirors to negotiate with the board of directors of the target corporation to
avoid occurrence of the "triggering events" specified in such plans. Shareholder
rights plans are intended to give the directors of a target corporation the
opportunity to assess the fairness and appropriateness of a proposed transaction
to determine whether or not it is in the best interests of the corporation and
its shareholders. Notwithstanding these purposes and intentions of shareholder
rights plans, such plans, including that of Synovus, could have the effect of
discouraging a business combination that shareholders believe to be in their
best interests. The provisions of Synovus' shareholder rights plan are discussed
below.
On April 27, 1999, the board of directors of Synovus adopted a rights
plan and authorized and declared a dividend of one common stock purchase right
with respect to each outstanding share of Synovus common stock outstanding on
May 4, 1999, and to each holder of common stock issued thereafter until the date
the rights become exercisable or the expiration or earlier redemption of the
rights. Each right entitles the registered holder to purchase from Synovus one
share of common stock at a price of $225.00 per share, subject to adjustment,
once rights become exercisable. The description and terms of the rights are set
forth in the rights agreement between Synovus and State Street Bank and Trust
Company, as the rights agent.
Initially, the rights will attach to all certificates of outstanding
shares of common stock, and no separate right certificates will be distributed.
The rights will become exercisable and separate from the shares of common stock
upon the earlier to occur of:
* ten days after the date of a public announcement that a person or
group of affiliated or associated persons has acquired beneficial
ownership of 15% or more of the outstanding common stock, such date
being referred to in this document as the "stock acquisition date" and
such person or group as an "acquiring person"; or
* ten business days, or such later date as the board may determine,
following the commencement of, or announcement of an intention to
make, a tender offer or exchange offer, the consummation of which
would result in a person or group becoming the beneficial owner of 15%
or more of the outstanding common stock, the earlier of such date and
the stock acquisition date being the "distribution date".
Shares of common stock beneficially owned by Synovus or any subsidiary
of Synovus will not be considered outstanding for purposes of calculating the
percentage ownership of any person.
Each of the following persons will not be deemed to be an acquiring
person even if they have acquired, or obtained the right to acquire beneficial
ownership of 15% or more of the outstanding common stock:
* Synovus, any subsidiary of Synovus, or any employee benefit plan of
Synovus or of any subsidiary of Synovus;
31
* any shareholder who is a descendant of D. Abbott Turner, any
shareholder who is affiliated or associated with the Turner family and
any person who would otherwise become an acquiring person as a result
of the receipt of common stock or a beneficial interest in common
stock from one or more members of the Turner family by way of gift,
devise, descent or distribution, but not by way of sale, unless any
such person, together with his affiliates and associates, becomes the
beneficial owner of more than 30% of the outstanding shares of common
stock;
* any person who would otherwise become an acquiring person solely by
virtue of a reduction in the number of outstanding shares of common
stock unless and until such person becomes the beneficial owner of any
additional shares of common stock; and
* any person who as of May 4, 1999 was the beneficial owner of 15% or
more of the outstanding common stock unless and until such person
shall become the beneficial owner of any additional shares of common
stock.
Until the distribution date or earlier redemption or expiration of the
rights:
* the rights will be evidenced by the certificates for the common stock;
* the rights will be transferred with, and only with, the shares of
common stock;
* new common stock certificates issued after the record date upon
transfer or new issuance of shares of common stock will contain a
notation incorporating the rights agreement by reference; and
* the surrender for transfer of any certificates for shares of common
stock outstanding as of the record date, even without such notation,
will also constitute the transfer of the rights associated with the
shares of common stock represented by such certificate.
As soon as practicable following the distribution date, separate
certificates evidencing the rights will be mailed to holders of record of the
shares of common stock as of the close of business on the distribution date, and
such separate right certificates alone will evidence the rights. The rights are
not exercisable until the distribution date. The rights will expire at the close
of business on May 5, 2009, unless earlier redeemed by Synovus.
If any person becomes an acquiring person, each holder of a right will
thereafter have the "flip-in right" to receive, upon payment of the purchase
price of the right, shares of common stock, or in some circumstances, cash,
property or other securities of Synovus, having a value equal to two times the
purchase price of the right. Notwithstanding the foregoing, all rights that are,
or were, beneficially owned by an acquiring person or any affiliate or associate
of an acquiring person will be null and void and not exercisable.
If, at any time following the stock acquisition date: (1) Synovus is
acquired in a merger or other business combination transaction in which the
holders of all of the outstanding shares of common stock immediately before the
consummation of the transaction are not the holders of all of the surviving
corporation's voting power, or (2) more than 30% of Synovus' assets, cash flow
or earning power is sold or transferred other than in the ordinary course of
Synovus' business, then each holder of a valid right shall thereafter have the
"flip-over right" to receive, in lieu of shares of common stock and upon
exercise and payment of the purchase price, common shares of the acquiring
company having a value equal to two times the purchase price of the right. If a
transaction would otherwise result in a holder's having a flip-in as well as a
flip-over right, then only the flip-over right will be exercisable. If a
transaction results in a holder's having a flip-over right after a transaction
resulting in a holder's having a flip-in right, a holder will have flip-over
rights only to the extent such holder's flip-in rights have not been exercised.
The purchase price payable, and the number of shares of common stock or
other securities or property issuable, upon exercise of the rights are subject
to adjustment from time to time to prevent dilution (1) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the common
stock, (2) upon the grant to holders of the common stock of rights or warrants
to subscribe for common stock or convertible securities at less than the current
market price of the common stock, or (3) upon the distribution to holders of the
common stock of evidences of indebtedness or assets, excluding dividends payable
in common stock, or of subscription rights or
32
warrants, other than those referred to above. However, no adjustment in the
purchase price will be required until cumulative adjustments require an
adjustment of at least 1%.
The number of outstanding rights and the number of shares of common
stock issuable upon exercise of each right are also subject to adjustment in the
event of a stock split of the common stock or a stock dividend on the common
stock payable in common stock or subdivisions, consolidations or combinations of
the common stock occurring, in any such case, before the distribution date.
At any time after a person becomes an acquiring person and before the
acquisition by a person of 50% or more of the outstanding common stock of
Synovus, the board of directors may, at its option, issue common stock or common
stock equivalents of Synovus in mandatory redemption of, or in exchange for, all
or part of the then outstanding exercisable rights, other than rights owned by
such acquiring person which would become null and void, at an exchange ratio of
one share of common stock, or common stock equivalents equal to one share of
common stock, per right, subject to adjustment.
To the extent that, after the triggering of flip-in rights,
insufficient shares of common stock are available for the exercise in full of
the rights, holders of rights will receive upon exercise shares of common stock
to the extent available and then cash, property or other securities of Synovus,
in proportions determined by Synovus, so that the aggregate value received is
equal to twice the purchase price.
Synovus is not required to issue fractional shares of common stock.
Instead, a payment in cash will be made to the holder of such rights equal to
the same fraction of the current value of a share of common stock. Following the
triggering of the flip-in rights, Synovus will not be required to issue
fractional shares of common stock upon exercise of the rights. Instead, a
payment in cash will be made to the holder of such rights equal to the same
fraction of the current market value of a share of common stock.
At any time before the distribution date, the board of directors of
Synovus may redeem all, but not less than all, of the then outstanding rights at
a price of $.001 per right. The redemption of the rights may be made effective
at such time, on such basis and with such conditions as the board of directors
in its sole discretion may establish. Immediately upon the action of the board
of directors ordering redemption of the rights, the right to exercise the rights
will terminate and the only right of the holders of rights will be to receive
the redemption price.
Until a right is exercised, the holder of the right, as such, will have
no rights as a shareholder of Synovus, including, without limitation, the right
to vote or to receive dividends.
The issuance of the rights is not taxable to Synovus or to shareholders
under presently existing federal income tax law, and will not change the way in
which shareholders can presently trade Synovus' shares of common stock. If the
rights should become exercisable, shareholders, depending on then existing
circumstances, may recognize taxable income.
Before the stock acquisition date, the rights agreement generally may
be amended by Synovus without the consent of the holders of the rights or the
common stock. On or after the stock acquisition date, Synovus may amend the
rights agreement only to (1) cure any ambiguity, (2) correct or supplement any
provision which may be defective or inconsistent with the other provisions of
the rights agreement, or (3) change or supplement the rights agreement in any
other manner which Synovus may deem necessary or desirable, provided that no
amendment shall adversely affect the interests of the holders of rights, other
than an acquiring person and its affiliates and associates.
A copy of the rights agreement has been filed with the SEC as an
exhibit to Synovus' Registration Statement on Form 8-A with respect to the
rights filed with the SEC. The Form 8-A and the rights agreement are
incorporated by reference in this document, and reference is made to them for
the complete terms of the rights agreement and the rights. This summary
description of the rights does not purport to be complete and is qualified in
its entirety by reference to the rights agreement. If the merger is approved,
rights will attach to Synovus common stock issued to the present shareholders of
Community Financial.
33
Staggered Board of Directors; Supermajority Approvals
Under Synovus' Articles of Incorporation and bylaws, Synovus' board of
directors is divided into three classes of directors serving staggered three
year terms, with the terms of each class of directors to expire each succeeding
year. Also under Synovus' Articles of Incorporation and bylaws, the vote or
action of shareholders possessing 66-2/3% of the votes entitled to be cast by
the holders of all the issued and outstanding shares of Synovus common stock is
required to:
* call a special meeting of Synovus shareholders;
* fix, from time to time, the number of members of Synovus' board of
directors;
* remove a member of Synovus' board of directors;
* approve any merger or consolidation of Synovus with or into any other
corporation, or the sale, lease, exchange or other disposition of all,
or substantially all, of Synovus' assets to or with any other
corporation, person or entity, with respect to which the approval of
Synovus' shareholders is required by the provisions of the corporate
laws of the State of Georgia; and
* alter, delete or rescind any provision of Synovus' Articles of
Incorporation.
This allows directors to be removed only for cause by 66-2/3% of the
votes entitled to be cast at a shareholders' meeting called for that purpose.
Vacancies or new directorships can only be filled by a majority vote of the
directors then in office. Synovus' staggered board of directors, especially when
combined with the voting amendment, makes it more difficult for its shareholders
to force an immediate change in the composition of the majority of the board. A
potential acquiror with shares recently acquired, and not entitled to 10 votes
per share under the voting amendment, may be discouraged or prevented from
soliciting proxies for the purpose of electing directors other than those
nominated by current management for the purpose of changing the policies or
control of Synovus.
Evaluation of Business Combinations
Synovus' Articles of Incorporation also provide that in evaluating any
business combination or other action, Synovus' board of directors may consider,
in addition to the amount of consideration involved and the effects on Synovus
and its shareholders, the interests of the employees, customers, suppliers and
creditors of Synovus and its subsidiaries, the communities in which offices of
the corporation or its subsidiaries are located, and any other factors the board
of directors deems pertinent.
Community Financial Capital Stock
The Charter of Community Financial authorizes the issuance of
50,000,000 shares of stock, $6.00 par value per share. At March 31, 2002, there
were 3,078,710 shares of Community Financial common stock issued and outstanding
and no shares of Community Financial preferred stock issued and outstanding. The
remaining authorized shares of Community Financial stock may be issued from time
to time in such designations and amounts as the board of directors determines.
From the authorized shares of stock, the Community Financial board may issue
common stock or may issue shares of preferred stock in one or more series, and
determine the relative rights and preferences of each series. Each holder of
Community Financial common stock has one vote per share upon all matters voted
upon by shareholders. Voting rights are non-cumulative so that shareholders
holding a majority of the outstanding shares of Community Financial are able to
elect all members of the board of directors.
All shares of Community Financial common stock, when issued and fully
paid, are non-assessable. All shares of Community Financial stock have
preemptive rights except (a) shares issued as compensation to directors,
officers, agents, employees, or vendors of Community Financial, its subsidiaries
or affiliates; (b) shares issued to satisfy conversion, option or warrant rights
created to provide compensation to directors, officers, agents, employees, or
vendors of Community Financial, its subsidiaries or affiliates, or sold to
shareholders purchasing such rights in connection with the purchase of shares
from Community Financial; (c) shares sold otherwise than for
34
money; or (d) shares sold to directors of Community Financial to meet their
minimum holding requirements of Community Financial stock.
All shares of Community Financial common stock are entitled to share
equally in such dividends as the board of directors may declare on the Community
Financial common stock from sources legally available therefor. Community
Financial is a holding company and conducts almost all of its operations through
its wholly-owned bank subsidiary, The Bank of Nashville. Accordingly, Community
Financial depends on the cash flow of its subsidiary bank to meet its
obligations in the ordinary course. Community Financial's subsidiary bank is
limited in the amount of dividends it can pay to Community Financial without
prior regulatory approval. Also, bank regulators have the authority to prohibit
Community Financial's subsidiary bank from paying dividends altogether if they
determine that the payment would constitute an unsafe and unsound banking
practice.
Community Financial's Charter and Tennessee law contain certain
provisions designed to enhance the ability of the board of directors to deal
with unsolicited attempts to acquire control of Community Financial. These
provisions may have an anti-takeover effect and may discourage takeover attempts
that have not been approved by the board of directors (including takeovers that
some shareholders might deem to be in their best interest), and may adversely
affect the price that a potential purchaser would be willing to pay for
Community Financial's stock. These provisions could also discourage or make more
difficult a merger, tender offer or proxy contest, even though such transaction
may be favorable to the interests of shareholders, and could potentially affect
the value of Community Financial common stock.
Required Shareholder Votes
Community Financial's Charter provides that certain business
transactions involving a "Related Person" (including mergers, consolidations,
stock exchanges and sales of all or substantially all of the assets of Community
Financial) require the approval of holders of 70% of the outstanding shares of
stock entitled to vote unless the transaction is approved by at least a majority
of the "Continuing Directors" of the Community Financial board or unless certain
conditions relating to the price and type of consideration to the shareholders
are satisfied, in which case approval by the holders of only a majority of the
outstanding shares entitled to vote would be sufficient. For purposes of these
provisions, with certain exceptions the term "Related Person" means the
beneficial owner of 25% or more of the issued and outstanding stock of Community
Financial together with all affiliates and associates of such Related Person. A
"Continuing Director" is defined as a board member whose election or nomination
for election was approved by the board of directors and preceded the
acquisition.
These provisions of Community Financial's Charter cannot be amended
without the approval of 3/4 of all of the issued and outstanding shares of
Community Financial entitled to vote at a duly called annual or special meeting
of shareholders.
Business Combination and Control Share Acquisitions Statutes
Tennessee's Business Combination Act provides that an interested
shareholder (defined as a person owning, either directly or indirectly, 10% or
more of the voting securities in a Tennessee corporation) cannot engage in a
business combination with that corporation unless the transaction takes place at
least five years after the interested shareholder first becomes an interested
shareholder, and unless either the transaction (a) is approved by at least 2/3
of the shares of the corporation not beneficially owned by an interested
shareholder or (b) satisfies certain fairness conditions specified in the
Tennessee Business Combination Act relating to the price to be paid to the
non-interested shareholders in such transactions.
These provisions apply to Tennessee corporations unless one of two
events occurs. A business combination with an entity can proceed without the
five-year moratorium if the business combination or transaction resulting in the
shareholder becoming an interested shareholder is approved by the target
corporation's board of directors before that entity becomes an interested
shareholder. Alternatively, the corporation may enact a Charter amendment or
bylaw to remove itself entirely from the Tennessee Business Combination Act.
This Charter amendment or bylaw must be approved by a majority of the
shareholders who have held shares for more than one year prior to the vote and
may not take effect for at least two years after the vote. Community Financial
has not
35
adopted such a provision in its Charter or bylaws. The Tennessee
Business Combination Act does not apply to the proposed merger because the
Community Financial board of directors approved the merger prior to its
execution.
The Tennessee Control Share Acquisition Act takes away the voting
rights of a purchaser's shares any time an acquisition of shares in a Tennessee
corporation brings the purchaser's voting power to 20%, 33 1/3%, or more than
50% of all voting power in such corporation. The purchaser' voting rights can be
maintained or re-established only by a majority vote of all the shares entitled
to vote generally with respect to the election of directors other than those
shares owned by the acquirer and the officers and inside directors of the
corporation.
The Tennessee Control Share Acquisition Act applies only to a
corporation that has adopted a provision in its Charter or bylaws declaring that
the Tennessee Control Share Acquisition Act will apply. Community Financial has
not adopted such a provision, and therefore the Tennessee Control Share
Acquisition Act does not apply.
The Tennessee Investor Protection Act provides that unless a Tennessee
corporation's board of directors has recommended a takeover offer to the
shareholders, no offeror beneficially owning 5% or more of any class of equity
securities of the offeree company, any of which was purchased within the
preceding year, may make a tender offer for a class of equity securities of the
offeree company if after completion, the offeror would be a beneficial owner of
more than 10% of any class of outstanding equity securities of the company
unless certain conditions are satisfied. The Tennessee Investor Protection Act
does not apply to the proposed merger because the Community Financial board of
directors has recommended the approval of the merger to its shareholders. The
Proposed merger therefore does not involve a "takeover offer" within the meaning
of the Tennessee Investor Protection Act.
The preceding descriptive information concerning Synovus common stock
and Community Financial common stock outlines certain provisions of Synovus'
Articles of Incorporation and bylaws, Community Financial's Charter and bylaws
and certain statutes regulating the rights of holders of Synovus and Community
Financial common stock. The information is not a complete description of those
documents and statutes and is subject in all respects to provisions of the
Articles of Incorporation and bylaws of Synovus, the Charter and bylaws of
Community Financial and the laws of the State of Georgia and the State of
Tennessee.
DISSENTERS' RIGHTS
Holders of Community Financial common stock do not have dissenters'
rights with respect to the merger under the Tennessee Business Corporation Act
because Community Financial common stock is listed on the Nasdaq National
Market.
DESCRIPTION OF SYNOVUS
Business
The disclosures made in this document, together with the following
information which is specifically incorporated by reference into this document,
describe the business of Synovus:
1. Synovus' Annual Report on Form 10-K for the fiscal year ended
December 31, 2001 (which incorporates certain portions of
Synovus' Proxy Statement, including the Financial Appendix
thereto, for its Annual Meeting of Shareholders held on April
24, 2002), as amended by Synovus' Annual Report on Form 10-K/A
filed on April 10, 2002.
2. Synovus' Quarterly Report on Form 10-Q for the quarter ended
March 31, 2002.
3. Synovus' Current Reports on Form 8-K dated January 16, 2002
and April 15, 2002.
Management and Additional Information
Information relating to executive compensation, various benefit plans,
voting securities and the principal holders of voting securities, relationships
and related transactions and other related matters as to Synovus is
incorporated by reference or set forth in Synovus' Annual Report on Form 10-K
for the year ended December 31,
36
2001 which is incorporated into this document by reference. See "Where You Can
Find More Information" on page 43. Shareholders desiring copies of such
documents may contact Synovus at its address or phone number indicated under
"Where You Can Find More Information."
Recent Developments
On May 31, 2002, Synovus completed the acquisition of GLOBALT, Inc.
located in Atlanta, Georgia. Synovus issued 702,433 shares of its common stock
in connection with the acquisition. GLOBALT currently operates as part of
Synovus Financial Management Services.
DESCRIPTION OF COMMUNITY FINANCIAL
Business
The disclosures made in this document, together with the following
information which is specifically incorporated by reference into this document,
describe the business of Community Financial:
1. Community Financial's Annual Report on Form 10-K for the
fiscal year ended December 31, 2001 (which incorporates
certain portions of Community Financial's Proxy Statement for
its Annual Meeting of Shareholders held on May 21, 2002).
2. Community Financial's Quarterly Report on Form 10-Q for the
quarter ended March 31, 2002.
3. Community Financial's Current Report on Form 8-K dated
April 30, 2002.
Management and Additional Information
Information relating to executive compensation, various benefit plans,
voting securities and the principal holders of voting securities, relationships
and related transactions and other related matters as to Community Financial is
incorporated by reference or set forth in Community Financial's Annual Report on
Form 10-K for the year ended December 31, 2001 which is incorporated into this
document by reference. See "Where You Can Find More Information" on page 43.
Shareholders desiring copies of such documents may contact Community Financial
at its address or phone number indicated under "Where You Can Find More
Information."
REGULATORY MATTERS
General
Synovus is a registered bank holding company subject to supervision and
regulation by the Board of Governors of the Federal Reserve System under the
Bank Holding Company Act of 1956 and by the Georgia Banking Department under the
bank holding company laws of the State of Georgia. Synovus became a financial
holding company under the Gramm-Leach-Bliley Act of 1999 in April 2000.
Financial holding companies may engage in a variety of activities, some of which
are not permitted for other bank holding companies that are not financial
holding companies. Synovus' affiliate national banking associations are subject
to regulation and examination primarily by the Office of the Comptroller of the
Currency and, secondarily, by the FDIC and the Federal Reserve Board. Synovus'
state-chartered banks are subject to primary federal regulation and examination
by the FDIC and, in addition, are regulated and examined by their respective
state banking departments. Numerous other federal and state laws, as well as
regulations promulgated by the Federal Reserve, the state banking regulators,
the OCC and the FDIC govern almost all aspects of the operations of the banks.
Various federal and state bodies regulate and supervise Synovus' non-banking
subsidiaries including its brokerage, investment advisory, insurance agency and
processing operations. These include, but are not limited to, the SEC, the
National Association of Securities Dealers, Inc., federal and state banking
regulators and various state regulators of insurance and brokerage activities.
Dividends
Under the laws of the State of Georgia, Synovus, as a business
corporation, may declare and pay dividends in cash or property unless the
payment or declaration would be contrary to restrictions contained in its
Articles of
37
Incorporation, and unless, after payment of the dividend, it would
not be able to pay its debts when they become due in the usual course of its
business or its total assets would be less than the sum of its total
liabilities. Synovus is also subject to regulatory capital restrictions that
limit the amount of cash dividends that it may pay. Additionally, Synovus is
subject to contractual restrictions that limit the amount of cash dividends it
may pay. Under the laws of the State of Tennessee, Community Financial is
subject to similar dividend restrictions.
The primary sources of funds for Synovus' payment of dividends to its
shareholders are dividends and fees to Synovus from its banking and nonbanking
affiliates. Similarly, the primary source of funds for Community Financial's
payment of dividends to its shareholders are dividends to Community Financial
from its banking affiliate, The Bank of Nashville. Various federal and state
statutory provisions and regulations limit the amount of dividends that the
subsidiary banks of Synovus and Community Financial may pay. Under the
regulations of the Georgia Banking Department, a Georgia bank must have approval
of the Georgia Banking Department to pay cash dividends if, at the time of such
payment:
* the ratio of Tier 1 capital to adjusted total assets is less than 6%;
* the aggregate amount of dividends to be declared or anticipated to be
declared during the current calendar year exceeds 50% of its net
after-tax profits for the previous calendar year; or
* its total classified assets in its most recent regulatory examination
exceeded 80% of its Tier 1 capital plus its allowance for loan losses,
as reflected in the examination.
In general, the approval of the Alabama Banking Department, Florida
Banking Department and Tennessee Department of Financial Institutions is
required if the total of all dividends declared by an Alabama, Florida or
Tennessee bank, as the case may be, in any year would exceed the total of its
net profits for that year combined with its retained net profits for the
preceding two years less any required transfers to surplus. In addition, the
approval of the OCC is required for a national bank to pay dividends in excess
of the bank's retained net income for the current year plus retained net income
for the preceding two years. Approval of the Federal Reserve Board is required
for payment of any dividend by a state chartered bank, like The Bank of
Nashville, that is a member of the Federal Reserve System and sometimes referred
to as a state member bank, if the total of all dividends declared by the bank in
any calendar year would exceed the total of its net profits (as defined by
regulatory agencies) for that year combined with its retained net profits for
the proceeding two years. In addition, a state member bank may not pay a
dividend in an amount greater than its net profits then on hand.
Some of Synovus' banking affiliates have in the past been required to
secure prior regulatory approval for the payment of dividends to Synovus in
excess of regulatory limits and may be required to seek approval for the payment
of dividends to Synovus in excess of those limits in the future. If prior
regulatory approvals are sought, there is no assurance that any such regulatory
approvals will be granted.
Federal and state banking regulations applicable to Synovus and its
banking subsidiaries require minimum levels of capital which limit the amounts
available for payment of dividends. Synovus' objective is to pay out at least
one-third of prior year's earnings in cash dividends to its shareholders.
Synovus and its predecessors have paid cash dividends on their common stock in
every year since 1891. Under restrictions imposed under federal and state laws,
Synovus' subsidiary banks could declare aggregate dividends to Synovus of
approximately $162.6 million during 2002 without obtaining regulatory approval.
Capital Requirements
Synovus and Community Financial are required to comply with the capital
adequacy standards established by the Federal Reserve Board and their banking
subsidiaries must comply with similar capital adequacy standards established by
the OCC and FDIC, as applicable. There are two basic measures of capital
adequacy for bank holding companies and their banking subsidiaries that have
been promulgated by the Federal Reserve Board, the FDIC and the OCC: a
risk-based measure and a leverage measure. All applicable capital standards must
be satisfied for a bank holding company or a bank to be considered in
compliance.
38
The risk-based capital standards are designed to make regulatory
capital requirements more sensitive to differences in risk profile among banks
and bank holding companies, to account for off-balance-sheet exposure, and to
minimize disincentives for holding liquid assets. Assets and off-balance-sheet
items are assigned to broad risk categories, each with appropriate weights. The
resulting capital ratios represent capital as a percentage of total
risk-weighted assets and off-balance-sheet items.
The minimum guideline for the ratio of total capital to risk-weighted
assets (including certain off-balance-sheet items, such as standby letters of
credit) is 8.0%. At least half of total capital must comprise common stock,
minority interests in the equity accounts of consolidated subsidiaries,
noncumulative perpetual preferred stock and a limited amount of cumulative
perpetual preferred stock, less goodwill and certain other intangible assets,
referred to as Tier 1 Capital. The remainder may consist of subordinated debt,
other preferred stock and a limited amount of loan loss reserves, referred to as
Tier 2 Capital. The Federal Reserve Board also requires certain bank holding
companies that engage in trading activities to adjust their risk-based capital
to take into consideration market risk that may result from movements in market
prices of covered trading positions in trading accounts, or from foreign
exchange or commodity positions, whether or not in trading accounts, including
changes in interest rates, equity prices, foreign exchange rates or commodity
prices. Any capital required to be maintained under these provisions may consist
of new Tier 3 Capital consisting of certain short term subordinated debt. In
addition, the Federal Reserve Board has issued a policy statement, under which a
bank holding company that is determined to have weaknesses in its risk
management processes or a high level of interest rate risk exposure may be
required to hold additional capital.
The Federal Reserve Board has also established minimum leverage ratio
guidelines for bank holding companies. These guidelines provide for a minimum
leverage ratio of Tier 1 Capital to average assets, less goodwill and certain
other intangible assets, of 3.0% for bank holding companies that meet certain
specified criteria, including having the highest regulatory rating. All other
bank holding companies generally are required to maintain a leverage ratio of at
least 4.0%. Bank holding companies are expected to maintain higher-than- minimum
capital ratios if they have supervisory, financial, operational or managerial
weaknesses, or if they are anticipating or experiencing significant growth.
Synovus has not been advised by the Federal Reserve Board of any specific
minimum leverage ratio applicable to it.
At March 31, 2002, Synovus' total capital ratio was 12.96%, its Tier 1
Capital ratio was 11.79% and its Tier 1 leverage ratio was 10.82%. Assuming the
merger had been consummated on March 31, 2002, the total capital ratio of
Synovus would have been 12.90%, its Tier 1 Capital ratio would have been 11.73%
and its Tier 1 leverage ratio would have been 10.72%. Each of these ratios
exceeds the current requirements under the Federal Reserve Board's capital
guidelines.
At March 31, 2002, Community Financial's total capital ratio was
10.93%, its Tier 1 Capital ratio was 9.68% and its Tier 1 leverage ratio was
7.70%. Each of these ratios exceeds the current requirements under the Federal
Reserve Board's capital guidelines.
Each of Synovus' and Community Financial's banking subsidiaries is
subject to similar risk-based and leverage capital requirements adopted by its
applicable federal banking agency, and each was in compliance with the
applicable minimum capital requirements as of March 31, 2002.
Failure to meet capital guidelines could subject a bank to a variety of
enforcement remedies, including issuance of a capital directive, the termination
of deposit insurance by the FDIC, a prohibition on the taking of brokered
deposits and other restrictions on its business. As described below, substantial
additional restrictions can be imposed upon FDIC-insured depository institutions
that fail to meet applicable capital requirements. See "Prompt Corrective
Action" below.
Commitments to Subsidiary Banks
Under the Federal Reserve Board's policy, Synovus is expected to act as
a source of financial strength to its subsidiary banks and to commit resources
to support its subsidiary banks in circumstances when it might not do so absent
that policy. In addition, any capital loans by Synovus to any of its subsidiary
banks would also be subordinate in right of payment to depositors and to certain
other indebtedness of that bank.
39
In the event of Synovus' bankruptcy, any commitment by Synovus to a
federal bank regulatory agency to maintain the capital of a banking subsidiary
will be assumed by the bankruptcy trustee and entitled to a priority of payment.
In addition, the Federal Deposit Insurance Act provides that any financial
institution whose deposits are insured by the FDIC generally will be liable for
any loss incurred by the FDIC in connection with the default of, or any
assistance provided by the FDIC to, a commonly controlled financial institution.
Prompt Corrective Action
The Federal Deposit Insurance Corporation Improvement Act of 1991
establishes a system of prompt corrective action to resolve the problems of
undercapitalized institutions. Under this system the federal banking regulators
are required to rate supervised institutions on the basis of five capital
categories as described below. The federal banking regulators are also required
to take mandatory supervisory actions, and are authorized to take other
discretionary actions, with respect to institutions in the three
undercapitalized categories, the severity of which will depend upon the capital
category in which the institution is placed. Generally, subject to a narrow
exception, the Federal Deposit Insurance Corporation Improvement Act requires
the banking regulator to appoint a receiver or conservator for an institution
that is critically undercapitalized. The federal banking agencies have specified
by regulation the relevant capital level for each category.
Under the Federal Deposit Insurance Corporation Improvement Act, the
Federal Reserve Board, the FDIC, the OCC and the Office of Thrift Supervision
have adopted regulations setting forth a five-tier scheme for measuring the
capital adequacy of the financial institutions they supervise. Under the
regulations, an institution would be placed in one of the following capital
categories:
* Well Capitalized - an institution that has a total capital ratio of at
least 10%, a Tier 1 Capital ratio of at least 6% and a Tier 1 leverage
ratio of at least 5%;
* Adequately Capitalized - an institution that has a total capital ratio
of at least 8%, a Tier 1 Capital ratio of at least 4% and a Tier 1
leverage ratio of at least 4%;
* Undercapitalized - an institution that has a total capital ratio of
under 8%, a Tier 1 Capital ratio of under 4% or a Tier 1 leverage
ratio of under 4%;
* Significantly Undercapitalized - an institution that has a total
capital ratio of under 6%, a Tier 1 Capital ratio of under 3% or a
Tier 1 leverage ratio of under 3%; and
* Critically Undercapitalized - an institution whose tangible equity is
not greater than 2% of total tangible assets.
The regulations permit the appropriate federal banking regulator to
downgrade an institution to the next lower category if the regulator determines
(1) after notice and opportunity for hearing or response, that the institution
is in an unsafe or unsound condition or (2) that the institution has received
and not corrected a less-than-satisfactory rating for any of the categories of
asset quality, management, earnings or liquidity in its most recent examination.
Supervisory actions by the appropriate federal banking regulator depend upon an
institution's classification within the five categories. Synovus' management
believes that Synovus and its bank subsidiaries have the requisite capital
levels to qualify as well capitalized institutions under the Federal Deposit
Insurance Corporation Improvement Act regulations.
The Federal Deposit Insurance Corporation Improvement Act generally
prohibits a depository institution from making any capital distribution,
including payment of a dividend, or paying any management fee to its holding
company if the depository institution would thereafter be undercapitalized.
Undercapitalized depository institutions are subject to restrictions on
borrowing from the Federal Reserve System. In addition, undercapitalized
depository institutions are subject to growth limitations and are required to
submit capital restoration plans. A depository institution's holding company
must guarantee the capital plan, up to an amount equal to the lesser of 5% of
the depository institution's assets at the time it becomes undercapitalized or
the amount of the capital deficiency when the institution fails to comply with
the plan. Federal banking agencies may not accept a capital plan without
determining, among other things, that the plan is based on realistic assumptions
and is likely to succeed in restoring
40
the depository institution's capital. If a depository institution fails to
submit an acceptable plan, it is treated as if it is significantly
undercapitalized.
Significantly undercapitalized depository institutions may be subject
to a number of requirements and restrictions, including orders to sell
sufficient voting stock to become adequately capitalized, requirements to reduce
total assets and cessation of receipt of deposits from correspondent banks.
Critically undercapitalized depository institutions are subject to appointment
of a receiver or conservator.
Safety and Soundness Standards
The Federal Deposit Insurance Act, as amended by the Federal Deposit
Insurance Corporation Improvement Act and the Riegle Community Development and
Regulatory Improvement Act of 1994, requires the federal bank regulatory
agencies to prescribe standards, by regulations or guidelines, relating to
internal controls, information systems and internal audit systems, loan
documentation, credit underwriting, interest rate risk exposure, asset growth,
asset quality, earnings, stock valuation and compensation, fees and benefits and
such other operational and managerial standards as the agencies deem
appropriate. The federal bank regulatory agencies have adopted a set of
guidelines prescribing safety and soundness standards under the Federal Deposit
Insurance Corporation Improvement Act. The guidelines establish general
standards relating to internal controls and information systems, internal audit
systems, loan documentation, credit underwriting, interest rate exposure, asset
growth and compensation, fees and benefits. In general, the guidelines require,
among other things, appropriate systems and practices to identify and manage the
risks and exposures specified in the guidelines. The guidelines prohibit
excessive compensation as an unsafe and unsound practice and describe
compensation as excessive when the amounts paid are unreasonable or
disproportionate to the services performed by an executive officer, employee,
director or principal shareholder. The federal banking agencies determined that
stock valuation standards were not appropriate. In addition, the agencies have
adopted regulations that authorize, but do not require, an agency to order an
institution that has been given notice by an agency that it is not satisfying
any of such safety and soundness standards to submit a compliance plan. If,
after being so notified, an institution fails to submit an acceptable compliance
plan, the agency must issue an order directing action to correct the deficiency
and may issue an order directing other actions of the types to which an
undercapitalized institution is subject under the prompt corrective action
provisions of the Federal Deposit Insurance Corporation Improvement Act. See
"Prompt Corrective Action" above. If an institution fails to comply with such an
order, the agency may seek to enforce such order in judicial proceedings and to
impose civil money penalties.
Depositor Preference Statute
Federal law provides that deposits and certain claims for
administrative expenses and employee compensation against an insured depository
institution would be afforded a priority over other general unsecured claims
against such an institution, including federal funds and letters of credit, in
the liquidation or other resolution of such an institution by any receiver.
Gramm-Leach-Bliley Act
On November 12, 1999, legislation was enacted which allows bank holding
companies to engage in a wider range of non-banking activities, including
greater authority to engage in securities and insurance activities. Under the
Gramm-Leach-Bliley Act, a bank holding company that elects to become a financial
holding company may engage in any activity that the Federal Reserve Board, in
consultation with the Secretary of the Treasury, determines by regulation or
order is: (1) financial in nature; (2) incidental to any such financial
activity; or (3) complementary to any such financial activity and does not pose
a substantial risk to the safety or soundness of depository institutions or the
financial system generally. The legislation makes significant changes in United
States banking law, principally by repealing restrictive provisions of the 1933
Glass-Steagall Act. The legislation specifies certain activities that are deemed
to be financial in nature, including lending, exchanging, transferring,
investing for others, or safeguarding money or securities; underwriting and
selling insurance; providing financial, investment or economic advisory
services; underwriting, dealing in or making a market in, securities; and any
activity currently permitted for bank holding companies by the Federal Reserve
Board under Section 4(c)(8) of the Bank Holding Company Act. The legislation
does not authorize banks or their affiliates to engage in commercial activities
that are not financial in nature. A bank holding company may elect to be treated
as a financial holding company only if all
41
depository institution subsidiaries of the holding company are well-capitalized,
well-managed and have at least a satisfactory rating under the Community
Reinvestment Act. Synovus became a financial holding company in April 2000.
In addition to the Gramm-Leach-Bliley Act, there have been a number of
legislative and regulatory proposals that would have an impact on bank/financial
holding companies and their bank and nonbank subsidiaries. It is impossible to
predict whether or in what form these proposals may be adopted in the future and
if adopted, what their effect will be on Synovus.
LEGAL MATTERS
The validity of the Synovus common stock to be issued in connection
with the merger will be passed upon by Kathleen Moates, Senior Vice President
and Senior Deputy General Counsel of Synovus. Ms. Moates beneficially owns
shares of Synovus common stock and options to purchase additional shares of
Synovus common stock. As of the date of this document, the number of shares Ms.
Moates owns or has the right to acquire upon exercise of her options is, in the
aggregate, less than 0.1% of the outstanding shares of Synovus common stock.
EXPERTS
Synovus
The consolidated financial statements of Synovus Financial Corp. and
subsidiaries as of December 31, 2001 and 2000 and for each of the years in the
three year period ended December 31, 2001 incorporated in this document by
reference to Synovus' Annual Report on Form 10-K for the year ended December 31,
2001 have been so incorporated in reliance upon the report of KPMG LLP,
independent accountants, incorporated by reference herein and upon the authority
of such firm as experts in accounting and auditing. The audit report covering
the December 31, 2001 consolidated financial statements refers to a change in
the method of accounting for derivative instruments and hedging activities.
Community Financial
The consolidated financial statements of Community Financial Group,
Inc. and subsidiaries as of December 31, 2001 and 2000 and for each of the years
in the three year period ended December 31, 2001 incorporated in this document
by reference to Community Financial's Annual Report on Form 10-K for the year
ended December 31, 2001 have been so incorporated in reliance upon the report of
KPMG LLP, independent accountants, incorporated by reference herein and upon the
authority of such firm as experts in accounting and auditing.
OTHER MATTERS
Community Financial's board of directors does not know of any matters
to be presented at the special meeting other than the proposal to approve the
merger. If any other matters are properly brought before the special meeting or
any adjournment of the special meeting, the enclosed proxy will be deemed to
confer discretionary authority on the individuals named as proxies to vote the
shares represented by the proxy as to any such matters.
SHAREHOLDER PROPOSALS
Synovus' 2003 annual meeting of shareholders will be held in April
2003. Any shareholder satisfying the Securities and Exchange Commission
requirements and wishing to submit a proposal to be included in the proxy
statement for the 2003 annual meeting of shareholders should submit the proposal
in writing to the Secretary, Synovus Financial Corp., 901 Front Avenue, Suite
301, Columbus, Georgia 31901. Synovus must receive a proposal by November 15,
2002 to consider it for inclusion in the proxy statement for the 2003 annual
meeting of shareholders.
If the merger is not consummated, Community Financial's 2003 annual
meeting of shareholders will be held in May 2003. Any shareholder satisfying the
Securities and Exchange Commission requirements and wishing to submit a proposal
to be included in the proxy statement for the 2003 annual meeting of
shareholders should submit the proposal in writing to the Secretary, Community
Financial Group, Inc., 401 Church Street, Suite 200,
42
Nashville, Tennessee 37219. Community Financial must receive a proposal by
November 21, 2002 to consider it for inclusion in the proxy statement for the
2003 annual meeting of shareholders.
WHERE YOU CAN FIND MORE INFORMATION
Synovus and Community Financial file annual, quarterly and special
reports, proxy statements and other information with the Securities and Exchange
Commission. You may read and copy any reports, statements or other information
that Synovus and Community Financial file with the SEC at the SEC's public
reference rooms at 450 Fifth Street, NW, Washington, D.C. 20549, 233 Broadway,
New York, New York 10048 and Suite 1400, 500 West Madison Street, Chicago,
Illinois 60601-2511. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. These SEC filings are also available
to the public from commercial document retrieval services and at the Internet
world wide web site maintained by the SEC at http://www.sec.gov. Reports, proxy
statements and other information should also be available for inspection at the
offices of the NYSE for Synovus, and Nasdaq, for Community Financial.
Synovus filed a registration statement to register with the SEC the
Synovus common stock to be issued to Community Financial shareholders in the
merger. This document is a part of that registration statement and constitutes a
prospectus of Synovus. As allowed by SEC rules, this document does not contain
all the information you can find in Synovus' registration statement or the
exhibits to that registration statement.
The SEC allows Synovus and Community Financial to "incorporate by
reference" information into this document, which means that Synovus and
Community Financial can disclose important information to you by referring you
to another document filed separately with the SEC. The information incorporated
by reference is considered part of this document, except for any information
superseded by information contained directly in this document or in later filed
documents incorporated by reference in this document.
This document incorporates by reference the documents set forth below
that Synovus and Community Financial have previously filed with the SEC. These
documents contain important information about Synovus and Community Financial
and their businesses.
Synovus SEC Filings (File No. 1-10312)
(1) Synovus' Annual Report on Form 10-K for the year ended December 31,
2001, as amended on April 10, 2002;
(2) Synovus' Quarterly Report on Form 10-Q for the quarter ended March 31,
2002;
(3) Synovus' Current Reports on Form 8-K dated January 16, 2002 and April
15, 2002;
(4) the description of Synovus common stock contained in Synovus'
Registration Statement on Form 8-A filed with the SEC on August 21,
1989; and
(5) the description of the shareholder rights plan of Synovus contained in
Synovus' Registration Statement on Form 8-A filed with the SEC on
April 28, 1999.
Community Financial SEC Filings (File No. 000-28496)
(1) Community Financial's Annual Report on Form 10-K for the year ended
December 31, 2001;
(2) Community Financial's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2002;
(3) Community Financial's Current Report on Form 8-K dated April 30, 2002;
and
43
(4) the description of Community Financial common stock contained in
Community Financial's Registration Statement No. 333-24309 on Form S-2
filed with the SEC on April 1, 1997.
Synovus and Community Financial also incorporate by reference
additional documents that may be filed with the SEC between the date of this
document and the consummation of the merger or termination of the merger
agreement. These include periodic reports, such as Annual Reports on Form 10-K,
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as proxy
statements.
Synovus has supplied all information contained or incorporated by
reference in this document relating to Synovus and Community Financial has
supplied all information contained or incorporated by reference in this document
relating to Community Financial.
You can obtain any of the documents incorporated by reference from the
companies, the SEC or the SEC's Internet web site as described above. Documents
incorporated by reference are available from the companies without charge,
excluding all exhibits, except that if the companies have specifically
incorporated by reference an exhibit in this document, the exhibit will also be
available without charge. You may obtain documents incorporated by reference in
this document by requesting them in writing or by telephone from the appropriate
company at the following addresses:
Synovus Financial Corp. Community Financial Group, Inc.
901 Front Avenue, Suite 301 401 Church Street
Columbus, Georgia 31901 Suite 200
Attn: G. Sanders Griffith, III Nashville, Tennessee 37219
Senior Executive Vice President, Attn: Attilio F. Galli
General Counsel & Secretary Chief Financial Officer
Telephone: (706) 649-2267 Telephone: (615) 271-2010
If you would like to request documents, please do so by July 18, 2002
to receive them before the Community Financial special meeting.
You should rely only on the information contained or incorporated by
reference in this document. Synovus and Community Financial have not authorized
anyone to provide you with information that is different from what is contained
in this document. This document is dated June 20, 2002. You should not assume
that the information contained in this document is accurate as of any date other
than that date. Neither the mailing of this document to shareholders nor the
issuance of Synovus common stock in the merger creates any implication to the
contrary.
FORWARD-LOOKING STATEMENTS
Each company makes forward-looking statements in this document, and in
our public documents, that are subject to risks and uncertainties. These
forward-looking statements include information about possible or assumed future
results of our operations. Also, when we use any of the words "believes,"
"expects," "anticipates" or similar expressions, we are making forward-looking
statements. Many possible events or factors could affect the financial results
and performance of each of our companies. This could cause results or
performances to differ materially from those expressed in our forward-looking
statements. The Private Securities Litigation Reform Act of 1995 provides a
"safe harbor" for such forward-looking statements. In order to comply with the
terms of the safe harbor, we note that a variety of factors could cause our
actual results and experience to differ materially from the anticipated results
or other expectations expressed in such forward-looking statements. The risks
and uncertainties that may affect the operations, performance, development and
results of our businesses include, but are not limited to, those described
below. You should consider these risks when you vote on the merger. These
possible events or factors include the following:
* our cost savings from the merger are less than we expect, or we are
unable to obtain those cost savings as soon as we expect;
* costs or difficulties relating to the integration of Community
Financial may be greater than expected;
44
* we lose more deposits, customers, or business than we expect;
* competition in the banking industry increases significantly;
* our integration costs are higher than we expect or our operating costs
after the merger are greater than we expect;
* the merger does not generate the synergies we expect;
* technological changes and systems integration are harder to make or
more expensive than we expect;
* changes in the interest rate environment reduce our margins;
* general economic or business conditions are worse than we expect;
* legislative or regulatory changes occur which adversely affect our
business;
* changes occur in business conditions and inflation; and
* changes occur in the securities markets.
Management of each of Synovus and Community Financial believes the
forward-looking statements about its company are reasonable; however, you should
not place undue reliance on them. Forward-looking statements are not guarantees
of performance. They involve risks, uncertainties and assumptions. The future
results and shareholder values of Synovus following completion of the merger may
differ materially from those expressed or implied in these forward-looking
statements. Many of the factors that will determine these results and values are
beyond Synovus' and Community Financial's ability to control or predict.
PRO FORMA FINANCIAL INFORMATION
Pro forma financial information reflecting the acquisition of Community
Financial by Synvous is not presented in this document since the pro forma
effect is not significant.
acq\nashville\s-4.doc
45
Appendix "A"
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of the 29th day of April, 2002
(the "Plan" or the "Agreement") by and between SYNOVUS FINANCIAL CORP.
("Synovus") and COMMUNITY FINANCIAL GROUP, INC. ("CFGI").
RECITALS:
A. Synovus. Synovus has been duly incorporated and is an existing
corporation in good standing under the laws of Georgia, with its principal
executive offices located in Columbus, Georgia. As of March 31, 2002, Synovus
had 600,000,000 authorized shares of common stock, par value $1.00 per share
("Synovus Common Stock"), of which 295,426,952 shares were outstanding on said
date. All of the issued and outstanding shares of Synovus Common Stock are duly
and validly issued and outstanding and are fully paid and nonassessable and not
subject to any preemptive rights. Synovus has 39 wholly-owned banking
subsidiaries (as defined in Rule 1-02 of Regulation S-X promulgated by the
Securities and Exchange Commission, a "Subsidiary") and other non-banking
Subsidiaries as of the date hereof. Each subsidiary that is a depository
institution is an "insured institution" as defined in the Federal Deposit
Insurance Act and the applicable regulations thereunder, and the deposits in
which are insured by the Federal Deposit Insurance Corporation.
B. CFGI. CFGI has been duly incorporated and is an existing corporation
in good standing under the laws of Tennessee, with its principal executive
offices located in Nashville, Tennessee. As of March 31, 2002, CFGI had
50,000,000 authorized shares of common stock, par value $6.00 per share ("CFGI
Common Stock"), of which 3,078,710 shares are outstanding as of the date hereof.
All of the issued and outstanding shares of CFGI Common Stock are duly and
validly issued and outstanding and are fully paid and nonassessable and, in most
circumstances, have preemptive rights. CFGI has one wholly-owned banking
Subsidiary, The Bank of Nashville. The Bank of Nashville also engages in title
agency, leasing and certain investment portfolio activities through five
Subsidiaries. The Bank of Nashville is an "insured institution" as defined in
the Federal Deposit Insurance Act and the applicable regulations thereunder, and
the deposits in which are insured by the Federal Deposit Insurance Corporation.
C. Rights, Etc. Neither Synovus nor CFGI has any shares of its capital
stock reserved for issuance, any outstanding option, call or commitment relating
to shares of its capital stock or any outstanding securities, obligations or
agreements convertible into or exchangeable for, or giving any person any right
(other than, in the case of CFGI, preemptive rights) to subscribe for or acquire
from it, any shares of its capital stock except as described in filings made
with the Securities and Exchange Commission ("SEC") by Synovus and CFGI ("Public
Filings") or except as otherwise disclosed in the letter referred to in Article
III below.
D. Board Approvals. The respective Boards of Directors of Synovus and
CFGI have unanimously approved and adopted the Plan and have duly authorized its
execution. In the case of CFGI, the Board of Directors has unanimously voted to
recommend to its stockholders that the Plan be approved.
E. Materiality. Unless the context otherwise requires, any reference
in this Agreement to materiality with respect to any party shall be deemed to be
with respect to such party and its Subsidiaries taken as a whole.
In consideration of their mutual promises and obligations hereunder,
and intending to be legally bound hereby, Synovus and CFGI adopt the Plan and
prescribe the terms and conditions hereof and the manner and basis of carrying
it into effect, which shall be as follows:
I. THE MERGER
(A) Structure of the Merger. On the Effective Date (as defined in
Article VII), CFGI will merge (the "Merger") with and into Synovus, with Synovus
being the surviving corporation (the "Surviving Corporation") under the name
Synovus Financial Corp. pursuant to the applicable provisions of the Georgia
Business Corporation Code ("Georgia Act") and the Tennessee Business Corporation
Act ("Tennessee Act"). On the Effective Date, the articles of incorporation and
bylaws of the Surviving Corporation shall be the articles of incorporation and
bylaws of Synovus in effect immediately prior to the Effective Date.
(B) Effect on Outstanding Shares. By virtue of the Merger,
automatically and without any action on the part of the holder thereof, each
share of CFGI Common Stock issued and outstanding on the Effective Date shall be
converted into and exchanged for the number of shares of Synovus Common Stock
determined by (i) dividing $26.00 by $26.83, or (ii) if the average closing
price of Synovus Common Stock during the fifteen (15) trading days immediately
prior to the Effective Date exceeds $26.83, then dividing $ 26.00 by the lesser
of (a) such average closing price of Synovus Common Stock during the fifteen
(15) days immediately prior to the Effective Date or (b) $ 30.25 ("Per Share
Exchange Ratio"). As of the Effective Date, each share of CFGI Common Stock held
as treasury stock of CFGI shall be canceled, retired and cease to exist, and no
payment shall be made in respect thereof.
No fractional shares of Synovus Common Stock shall be issued in
connection with the Merger. Each holder of CFGI Common Stock who would otherwise
have been entitled to receive a fraction of a share of Synovus Common
-2-
Stock shall receive, in lieu thereof, cash (without interest) in an amount equal
to such fractional part of a share of Synovus Common Stock multiplied by the
closing price per share of Synovus Common Stock on the New York Stock Exchange
("NYSE") on the fifth business day immediately preceding the Effective Date of
the Merger.
Each shareholder of CFGI Common Stock will be entitled to ten votes for
each share of Synovus Common Stock to be received by him/her on the Effective
Date pursuant to a set of resolutions adopted by the Board of Directors of
Synovus on April 29, 2002 in accordance with and subject to those certain
Articles of Amendment to Synovus' Articles of Incorporation, dated April 24,
1986. Synovus shall provide CFGI with certified copies of such resolutions prior
to the Effective Date.
The shares of the Synovus Common Stock issued and outstanding
immediately prior to the Effective Date shall remain outstanding and unchanged
after the Merger.
In the event that, subsequent to the date of this Plan but prior to the
Effective Date, the outstanding shares of Synovus Common Stock shall have been
increased, decreased, changed into or exchanged for a different number or kind
of shares or securities through reorganization, recapitalization,
reclassification, stock dividend, stock split, reverse stock split, or other
like changes in Synovus' capitalization, then an appropriate and proportionate
adjustment shall be made to the Per Share Exchange Ratio so as to prevent the
dilutive effect of such transaction on a percentage of ownership basis.
The shareholders of CFGI Common Stock shall not be entitled to rights
of dissent and appraisal in connection with the Merger pursuant to the Tennessee
Act.
(C) Procedures. Certificates which represent shares of CFGI Common
Stock that are outstanding on the Effective Date (each, a "Certificate") and are
converted into shares of Synovus Common Stock pursuant to the Plan shall, after
the Effective Date, be deemed to represent shares of the Synovus Common Stock
into which such shares have become converted and shall be exchangeable by the
holders thereof in the manner provided in the transmittal materials described
below for new certificates representing the shares of Synovus Common Stock into
which such shares have been converted.
As promptly as practicable after the Effective Date, Synovus shall send
to each holder of record of shares of CFGI Common Stock outstanding on the
Effective Date transmittal materials for use in exchanging the Certificates for
such shares for certificates for shares of the Synovus Common Stock into which
such shares of the CFGI Common Stock have been converted pursuant to the Plan.
Upon surrender of a Certificate, duly endorsed as Synovus may require, the
holder of such Certificate shall be entitled to receive in exchange therefor the
consideration set forth in Paragraph I(B) hereof and such Certificate shall
forthwith be canceled. No dividend or other distribution payable after the
Effective Date with respect to the
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Synovus Common Stock shall be paid to the holder of any unsurrendered
Certificate until the holder thereof surrenders such Certificate, at which time
such holder shall receive all dividends and distributions, without interest
thereon, previously withheld from such holder pursuant hereto. After the
Effective Date, there shall be no transfers on the stock transfer books of CFGI
of shares of CFGI Common Stock which were issued and outstanding on the
Effective Date and converted pursuant to the provisions of the Plan. If after
the Effective Date, Certificates are presented for transfer to CFGI, they shall
be canceled and exchanged for the shares of Synovus Common Stock deliverable in
respect thereof as determined in accordance with the provisions of Paragraph (B)
of Article I and in accordance with the procedures set forth in this Paragraph.
In the case of any lost, mislaid, stolen or destroyed Certificate, the holder
thereof may be required, as a condition precedent to the delivery to such holder
of the consideration described in Paragraph B, to deliver to Synovus a bond in
such sum as Synovus may direct as indemnity against any claim that may be made
against the exchange agent, Synovus or CFGI with respect to the Certificate
alleged to have been lost, mislaid, stolen or destroyed.
After the Effective Date, holders of CFGI Common Stock shall cease to
be, and shall have no rights as, stockholders of CFGI, other than to receive
shares of Synovus Common Stock into which such shares have been converted,
fractional share payments pursuant to the Plan and any dividends or
distributions with respect to such shares of Synovus Common Stock. Until 90 days
after the Effective Date, former shareholders of record of CFGI shall be
entitled to vote at any meeting of Synovus shareholders the number of shares of
Synovus Common Stock into which their respective CFGI Common Stock are converted
regardless of whether such holders have exchanged their certificates pursuant to
the Plan.
Notwithstanding the foregoing, neither Synovus nor CFGI nor any other
person shall be liable to any former holder of shares of CFGI Common Stock for
any amounts paid or property delivered in good faith to a public official
pursuant to applicable abandoned property, escheat or similar laws.
(D) Options. On the Effective Date, each option granted by CFGI to
purchase shares of CFGI Common Stock, which is outstanding and unexercised
immediately prior thereto, shall be converted automatically into an option to
purchase shares of Synovus Common Stock in an amount and at an exercise price
determined as provided below (and otherwise having the same duration and other
terms as the original option):
(1) The number of shares of Synovus Common Stock to be subject
to the new option shall be equal to the product of the number of shares of CFGI
Common Stock subject to the original option multiplied by the Per Share Exchange
Ratio provided that any fractional shares of Synovus Common Stock resulting from
such multiplication shall be rounded to the nearest whole share; and
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(2) The exercise price per share of Synovus Common Stock under
the new option shall be equal to the exercise price per share of CFGI Common
Stock under the original option divided by the Per Share Exchange Ratio provided
that such exercise price shall be rounded up to the nearest cent.
The adjustment provided herein with respect to any options which are
"incentive stock options" (as defined in Section 422 of the Internal Revenue
Code of 1986 (the "Code")) shall be and is intended to be effected in a manner
which is consistent with Section 424(a) of the Code.
Within thirty (30) days after the Effective Date, Synovus shall notify
each holder of an option to purchase CFGI Common Stock of the assumption of such
options by Synovus and the revisions to the options shall be effected thereby.
No payment shall be made for fractional interests. From and after the date
hereof, no additional options to purchase CFGI Common Stock shall be granted.
II. ACTIONS PENDING MERGER
(A) CFGI covenants to Synovus that CFGI and its Subsidiaries shall
conduct their business only in the ordinary course and shall not, without the
prior written consent of Synovus, which consent will not be unreasonably
withheld: (1) issue any options to purchase capital stock or issue any shares of
capital stock, other than shares of CFGI Common Stock issued in connection with
the exercise of currently outstanding options to purchase shares of CFGI Common
Stock; (2) declare, set aside, or pay any dividend or distribution with respect
to the capital stock of CFGI other than normal and customary quarterly cash
dividends in accordance with past practices; (3) directly or indirectly redeem,
purchase or otherwise acquire any capital stock of CFGI or its Subsidiaries; (4)
effect a split or reclassification of the capital stock of CFGI or its
Subsidiaries or a recapitalization of CFGI or its Subsidiaries; (5) amend the
articles of incorporation, charter or by-laws of CFGI or its Subsidiaries; (6)
grant any increase in the salaries payable or to become payable by CFGI or its
Subsidiaries to any employee and other than normal, annual salary increases to
be made with regard to the employees of CFGI or its Subsidiaries; (7) make any
change in any bonus, group insurance, pension, profit sharing, deferred
compensation, or other benefit plan, payment or arrangement made to, for or with
respect to any employees or directors of CFGI or its Subsidiaries, except to the
extent such changes are required by applicable laws or regulations; (8) enter
into, terminate, modify or amend any contract, lease or other agreement with any
officer or director of CFGI or its Subsidiaries or any "associate" of any such
officer or director, as such term is defined in Regulation 14A under the
Securities Exchange Act of 1934, as amended ("Exchange Act"), other than in the
ordinary course of their banking business; (9) incur or assume any liabilities,
other than in the ordinary course of their business; (10) dispose of any of
their assets
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or properties, other than in the ordinary course of their business; (11)
solicit, encourage or authorize any individual, corporation or other entity,
including its directors, officers and other employees, to solicit from any third
party any inquiries or proposals relating to the disposition of its business or
assets, or the acquisition of its voting securities, or the merger of it or its
Subsidiaries with any corporation or other entity other than as provided by this
Agreement, or subject to the fiduciary obligations of its Board of Directors,
provide any individual, corporation or other entity with information or
assistance or negotiate with any individual, corporation or other entity in
furtherance of such inquiries or to obtain such a proposal (and CFGI shall
promptly notify Synovus of all of the relevant details relating to all inquiries
and proposals which it may receive relating to any of such matters); (12) take
any other action or permit its Subsidiaries to take any action not in the
ordinary course of business of it and its Subsidiaries; or (13) directly or
indirectly agree to take any of the foregoing actions.
(B) Synovus covenants to CFGI that without the prior written consent of
CFGI, which consent will not be unreasonably withheld, Synovus will not: (1)
declare, set aside or pay any cash dividend on its Common Stock other than
normal and customary quarterly cash dividends in accordance with Synovus'
current Dividend Policy; or (2) take any action that would: (a) delay or
adversely affect the ability of Synovus to obtain any necessary approvals of
regulatory authorities required for the transactions contemplated hereby; or (b)
adversely affect its ability to perform its covenants and agreements on a timely
basis under this Plan.
III. REPRESENTATIONS AND WARRANTIES
Synovus hereby represents and warrants to CFGI, and CFGI represents and
warrants to Synovus, that, except as previously disclosed in a letter of Synovus
or CFGI, respectively, of even date herewith delivered to the other party:
(A) the representations set forth in Recitals A through D of the Plan
with respect to it are true and correct and constitute representations and
warranties for the purpose of Article V, hereof;
(B) the outstanding shares of capital stock of it and its Subsidiaries
are duly authorized, validly issued and outstanding, fully paid and (subject to
12 U.S.C. ss.55 in the case of a national bank subsidiary) non-assessable, and,
except with respect to shares of capital stock of CFGI, subject to no preemptive
rights of current or past shareholders;
(C) each of it and its Subsidiaries has the power and authority, and is
duly qualified in all jurisdictions (except for such qualifications the absence
of which will not as a whole have an adverse effect on the business, results of
operations or financial condition of it or its Subsidiaries which is material to
it and its Subsidiaries, taken as a whole ("Material Adverse Effect") provided
that "Material Adverse Effect" shall not be deemed to include: (1) the
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impact of changes in banking or similar laws of general applicability or
interpretations thereof by courts or governmental authorities; or (2) changes in
generally accepted accounting principles applicable to banks and their holding
companies) where such qualification is required to carry on its business as it
is now being conducted, to own all its material properties and assets, 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, except for such authorizations the absence of which,
either individually or in the aggregate, would not have a Material Adverse
Effect;
(D) the shares of capital stock of each of its Subsidiaries are owned
by it (except for director's qualifying shares) free and clear of all liens,
claims, encumbrances and restrictions on transfer;
(E) subject, in the case of CFGI, to the receipt of any required
shareholder approval of this Plan, the Plan has been authorized by all necessary
corporate action of it and, subject to receipt of such approvals of shareholders
and required regulatory approvals, is a legal, valid and binding agreement of it
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles involving specific performance or injunctive relief;
(F) the execution, delivery and performance of the Plan by it does not,
and the consummation of the transactions contemplated hereby by it will not,
constitute: (1) a breach or violation of, or a default under, any law, rule or
regulation or any judgment, decree, order, governmental permit or license, or
agreement, indenture or instrument of it or its Subsidiaries or to which it or
its Subsidiaries (or any of their respective properties) is subject which
breach, violation or default would have a Material Adverse Effect, or enable any
person to enjoin any of the transactions contemplated hereby; or (2) a breach or
violation of, or a default under, the certificate or articles of incorporation
or by-laws of it or any of its Subsidiaries; and the consummation of the
transactions contemplated hereby will not require any consent or approval under
any such law, rule, regulation, judgment, decree, order, governmental permit or
license or the consent or approval of any other party to any such agreement,
indenture or instrument, other than the required approvals of applicable
regulatory authorities and the approval of the shareholders of CFGI, both of
which are referred to in Paragraph (A) of Article V and any consents and
approvals the absence of which will not have a Material Adverse Effect;
(G) since December 31, 2000, CFGI and Synovus have filed all forms,
reports and documents with the SEC required to be filed by it pursuant to the
federal securities laws and SEC rules and regulations thereunder (the "SEC
Reports,") each of which complied as to form, at the time such form, report or
document was filed, in all material respects with the applicable requirement of
the Securities Act of 1933, as amended ("Securities Act"), the
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Exchange Act and the applicable rules and regulations thereunder. As of their
respective dates, none of the SEC Reports, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements made therein, in light of the circumstances
under which they were made, not misleading. Each of the balance sheets in or
incorporated by reference into the SEC Reports (including the related notes and
schedules) fairly presents the financial position of the entity or entities to
which it relates as of its date and each of the statements of operations and
retained earnings and of cash flows and changes in financial position or
equivalent statements in or incorporated by reference into the SEC Reports
(including any related notes and schedules) fairly presents the results of
operations, retained earnings and cash flows and changes in financial position,
as the case may be, of the entity or entities to which it relates for the
periods set forth therein (subject, in the case of unaudited interim statements,
to normal year-end audit adjustments that are not material in amount or effect),
in each case in accordance with generally accepted accounting principles
applicable to bank holding companies consistently applied during the periods
involved, except as may be noted therein. It has no material obligations or
liabilities (contingent or otherwise) except as disclosed in the SEC Reports.
For purposes of this paragraph, material shall have the meaning as defined under
the Securities Act, the Exchange Act and the rules promulgated thereunder;
(H) it has no material liabilities and obligations secured or
unsecured, whether accrued, absolute, contingent or otherwise, known or unknown,
due or to become due, including, but not limited to tax liabilities, that should
have been but are not reflected in or reserved against in its audited financial
statements as of December 31, 2001 or disclosed in the notes thereto;
(I) there has not been the occurrence of one or more events,
conditions, actions or states of facts which, either individually or in the
aggregate, have caused a Material Adverse Effect with respect to it since
December 31, 2001;
(J) all material federal, state, local, and foreign tax returns
required to be filed by or on behalf of it or any of its Subsidiaries have been
timely filed or requests for extensions have been timely filed and any such
extension shall have been granted and not have expired; and to the best of its
knowledge, all such returns filed are complete and accurate in all material
respects. All taxes shown on returns filed by it have been paid in full or
adequate provision has been made for any such taxes on its balance sheet (in
accordance with generally accepted accounting principles). As of the date of the
Plan, there is no audit examination, deficiency, or refund litigation with
respect to any taxes of it that would result in a determination that would have
a Material Adverse Effect. All taxes, interest, additions, and penalties due
with respect to completed and settled examinations or concluded litigation
relating to it have been paid in full or adequate provision has been made for
any such taxes on its balance sheet (in accordance with generally accepted
accounting principles). It has not executed an extension or waiver of
-8-
any statute of limitations on the assessment or collection of any material tax
due that is currently in effect. Deferred taxes have been provided for in its
financial statements in accordance with generally accepted accounting principles
applied on a consistent basis. To the best of its knowledge, it is in compliance
with, and its records contain all information and documents (including properly
completed IRS Forms W-9) necessary to comply with, all applicable information
reporting and tax withholding requirements under federal, state, and local tax
laws, and such records identify with specificity all accounts subject to backup
withholding under Section 3406 of the Internal Revenue Code, except for such
instances of noncompliance and such omissions as are not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect;
(K)(1) no litigation, proceeding or controversy before any court or
governmental agency is pending, and there is no pending claim, action or
proceeding against it or any of its Subsidiaries, which is likely to have a
Material Adverse Effect or to prevent consummation of the transactions
contemplated hereby, and, to the best of its knowledge, no such litigation,
proceeding, controversy, claim or action has been threatened or is contemplated;
and (2) neither it nor any of its Subsidiaries is subject to any agreement,
memorandum of understanding, commitment letter, board resolution or similar
arrangement with, or transmitted to, any regulatory authority materially
restricting its operations as conducted on the date hereof or requiring that
certain actions be taken which could reasonably be expected to have a Material
Adverse Effect;
(L) neither it nor its Subsidiaries are in default in any material
respect under any material contract (as defined in Item 601(b)(10)(i) and (ii)
of Regulation S-K) 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;
(M) all "employee benefit plans," as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974 ("ERISA"), that cover any of its
or its Subsidiaries' employees, comply in all material respects with all
applicable requirements of ERISA, the Code and other applicable laws; neither it
nor any of its Subsidiaries has engaged in a "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) with respect to any
such plan which is likely to result in any material penalties or taxes under
Section 502(i) of ERISA or Section 4975 of the Code; no material liability to
the Pension Benefit Guaranty Corporation has been or is expected by it or them
to be incurred with respect to any such plan which is subject to Title IV of
ERISA ("Pension Plan"), or with respect to any "single-employer plan" (as
defined in Section 4001(a)(15) of ERISA) currently or formerly maintained by it,
them or any entity which is considered one employer with it under Section 4001
of ERISA or Section 414 of the Code; no Pension Plan had an "accumulated funding
deficiency" (as defined in Section 302 of ERISA (whether or not waived) as of
the last day of the end of the most recent plan year ending prior to the date
hereof; the fair market value of
-9-
the assets of each Pension Plan exceeds the present value of the "benefit
liabilities" (as defined in Section 4001(a)(16) of ERISA) under such Pension
Plan as of the end of the most recent plan year with respect to the respective
Plan ending prior to the date hereof, calculated on the basis of the actuarial
assumptions used in the most recent actuarial valuation for such Pension Plan as
of the date hereof; to the actual knowledge of its executive officers, there are
no pending or anticipated material claims against or otherwise involving any of
its employee benefit plans and no suit, action or other litigation (excluding
claims for benefits incurred in the ordinary course of activities of such plans)
has been brought against or with respect to any such plan, except for any of the
foregoing which would not have a Material Adverse Effect; no notice of a
"reportable event" (as 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
Pension Plan within the 12-month period ending on the date hereof; it and its
Subsidiaries have not contributed to a "multi-employer plan", as defined in
Section 3(37) of ERISA; and it and its Subsidiaries do not have any obligations
for retiree health and life benefits under any benefit plan, contract or
arrangement, except as required by Section 4980B of the Code and Part 6 of
Subtitle B of Title I of ERISA;
(N) each of it and its Subsidiaries has good and marketable title to
its respective properties and assets, tangible or intangible (other than
property as to which it is lessee), except for such defects in title which would
not, in the aggregate, have a Material Adverse Effect;
(O) it knows of no reason why the regulatory approvals referred to in
Paragraphs (A)(2) and (A)(3) of Article V should not be obtained without the
imposition of any condition of the type referred to in the proviso following
such Paragraphs (A)(2) and (A)(3) and it has taken no action or agreed to take
any action that is reasonably likely to prevent the Merger from qualifying for
treatment as a reorganization within the meaning of Section 368(a) of the Code
for federal income tax purposes;
(P) its reserve for possible loan and lease losses as shown in its
audited financial statements as of December 31, 2001 was, and its reserve for
possible loan and lease losses as shown in all Quarterly Reports on Form 10-Q
filed prior to the Effective Date will be, adequate in all material respects
under generally accepted accounting principles applicable to banks and bank
holding companies;
(Q) it and each of its Subsidiaries has all material permits, licenses,
certificates of authority, orders, and approvals of, and has made all filings,
applications, and registrations with, federal, state, local, and foreign
governmental or regulatory bodies that are required in order to permit it to
carry on its business as it is presently conducted and the absence of which
would have a Material Adverse Effect; all such permits, licenses, certificates
of authority,
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orders, and approvals are in full force and effect, and to the best knowledge of
it no suspension or cancellation of any of them is threatened;
(R) in the case of Synovus, the shares of capital stock to be issued
pursuant to the Plan, when issued in accordance with the terms of the Plan, will
be duly authorized, validly issued, fully paid and nonassessable and subject to
no preemptive rights of any current or past shareholders;
(S) neither it nor any of its Subsidiaries 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 it or any of its
Subsidiaries the subject of a proceeding asserting that it or any such
Subsidiary has committed an unfair labor practice or seeking to compel it or
such Subsidiary to bargain with any labor organization as to wages and
conditions of employment, nor is there any strike or other labor dispute
involving it or any of its Subsidiaries pending or threatened;
(T) other than services provided by McDonald Investments, Inc., which
has been retained by CFGI and the arrangements with which, including fees, have
been disclosed to Synovus prior to the date hereof, neither it nor any of its
Subsidiaries, nor any of their respective officers, directors, or employees, has
employed any broker or finder or incurred any liability for any financial
advisory fees, brokerage fees, commissions, or finder's fees, and no broker or
finder has acted directly or indirectly for it or any of its Subsidiaries, in
connection with the Plan or the transactions contemplated hereby;
(U) the information to be supplied by it for inclusion in: (1) the
Registration Statement on Form S-4 and/or such other form(s) as may be
appropriate to be filed under the Securities Act, with the SEC by Synovus for
the purpose of, among other things, registering the Synovus Common Stock to be
issued to the shareholders of CFGI in the Merger (the "Registration Statement");
or (2) the proxy statement to be filed with the SEC under the Exchange Act and
distributed in connection with CFGI's meeting of its shareholders to vote upon
this Plan (as amended or supplemented from time to time, the "Proxy Statement",
and together with the prospectus included in the Registration Statement, as
amended or supplemented from time to time, the "Proxy Statement/Prospectus")
will not at the time such Registration Statement becomes effective, and in the
case of the Proxy Statement/Prospectus at the time it is mailed and at the time
of the meeting of stockholders contemplated under this Plan, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading;
(V) for purposes of this section, the following terms shall have the
indicated meaning:
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"Environmental Law" means any federal, state or local law, statute,
ordinance, rule, regulation, code, license, permit, authorization, approval,
consent, order, judgment, decree, injunction or agreement with any governmental
entity relating to: (1) the protection, preservation or restoration of the
environment (including, without limitation, air, water vapor, surface water,
groundwater, drinking water supply, surface soil, subsurface soil, plant and
animal life or any other natural resource); and/or (2) the use, storage,
recycling, treatment, generation, transportation, processing, handling,
labeling, production, release or disposal of Hazardous Substances. The term
Environmental Law includes without limitation: (1) the Comprehensive
Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C.
ss. 9601, et seq; the Resource Conservation and Recovery Act, as amended, 42
U.S.C. ss. 6901, et seq; the Clean Air Act, as amended, 42 U.S.C. ss. 7401, et
seq; the Federal Water Pollution Control Act, as amended, 33 U.S.C. ss. 1251, et
seq; the Toxic Substances Control Act, as amended, 15 U.S.C. ss. 9601, et seq;
the Emergency Planning and Community Right to Know Act, 42 U.S.C. ss. 11001, et
seq; the Safe Drinking Water Act, 42 U.S.C. ss. 300f, et seq; all accompanying
federal regulations and all comparable state and local laws; and (2) any common
law (including without limitation common law that may impose strict liability)
that may impose liability or obligations for injuries or damages due to, or
threatened as a result of, the presence of or exposure to any Hazardous
Substance.
"Hazardous Substance" means any substance or waste presently listed,
defined, designated or classified as hazardous, toxic, radioactive or dangerous,
or otherwise regulated, under any Environmental Law, whether by type or by
quantity, including any material containing any such substance as a component.
Hazardous Substances include without limitation petroleum or any derivative or
by-product thereof, asbestos, radioactive material, and polychlorinated
biphenyls.
"Loan Portfolio Properties and Other Properties Owned" means those
properties owned or operated by Synovus or CFGI as applicable, or any of their
respective Subsidiaries.
(1) there are no actions, suits, demands, notices, claims,
investigations or proceedings pending or, to the actual knowledge of its
executive officers, threatened against it and its Subsidiaries relating to the
Loan Portfolio Properties and Other Properties Owned by it or its Subsidiaries
under any Environmental Law, including without limitation any notices, demand
letters or requests for information from any federal or state environmental
agency relating to any such liabilities under or violations of Environmental
Law, nor, in the actual knowledge of its executive officers and the executive
officers of its Subsidiaries, are there any circumstances which could lead to
such actions, suits, demands, notices, claims, investigations or proceedings,
except such which will not have, or result in, a Material Adverse Effect; and
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(W) in the case of CFGI, all securities issued by it (or any other
person), convertible into CFGI Common Stock shall, as a result and upon
consummation of the Merger, be convertible only into Synovus Common Stock.
IV. COVENANTS
Synovus hereby covenants to CFGI, and CFGI hereby covenants to Synovus,
that:
(A) it shall take or cause to be taken all action necessary or
desirable under the Plan on its part as promptly as practicable, including the
filing of all necessary applications and the Registration Statement, so as to
permit the consummation of the transactions contemplated by the Plan at the
earliest possible date and cooperate fully with the other party hereto to that
end;
(B) in the case of CFGI, it shall: (1) take all steps necessary to duly
call, give notice of, convene and hold a meeting of its shareholders for the
purpose of approving the Plan as soon as is reasonably practicable; (2)
distribute to its shareholders the Proxy Statement/Prospectus in accordance with
applicable federal and state law and with its articles of incorporation and
by-laws; (3) recommend to its shareholders that they approve the Plan (unless it
has been advised in writing by its counsel that to do so would constitute a
breach of its fiduciary duties); and (4) cooperate and consult with Synovus with
respect to each of the foregoing matters;
(C) it will cooperate in the preparation and filing of the Proxy
Statement/Prospectus and Registration Statement in order to consummate the
transactions contemplated by the Plan as soon as is reasonably practicable;
(D) Synovus will advise CFGI, promptly after Synovus receives notice
thereof, of the time when the Registration Statement has become effective or any
supplement or amendment has been filed, of the issuance of any stop order or the
suspension of the qualification of the shares of Synovus Common Stock issuable
pursuant to the Plan for offering or sale in any jurisdiction, of the initiation
or threat of any proceeding for any such purpose or of any request by the SEC
for the amendment or supplement of the Registration Statement or for additional
information;
(E) in the case of Synovus, it shall take all actions to obtain, prior
to the effective date of the Registration Statement, all applicable state
securities law or "Blue Sky" permits, approvals, qualifications or exemptions
for the Synovus shares to be issued pursuant to this Plan;
(F) subject to its disclosure obligations imposed by law, unless
reviewed and agreed to by the other party hereto in advance, it will not issue
any press release or written statement
-13-
for general circulation relating to the transactions contemplated hereby;
provided however, that nothing in this Paragraph (F) shall be deemed to prohibit
either party from making any disclosure which its counsel deems necessary or
advisable in order to satisfy such party's disclosure obligations imposed by
law;
(G) from and subsequent to the date hereof, it will: (1) give to the
other party hereto and its respective counsel and accountants reasonable access
to its premises and books and records during normal business hours for any
reasonable purpose related to the transactions contemplated hereby; and (2)
cooperate and instruct its respective counsel and accountants to cooperate with
the other party hereto and with its respective counsel and accountants with
regard to the formulation and production of all necessary information,
disclosures, financial statements, registration statements and regulatory
filings with respect to the transactions encompassed by the Plan. Any nonpublic
information regarding either party shall be held subject to the terms of those
certain letter agreements between Synovus and CFGI dated February 1, 2002 and
March 21, 2002;
(H) it shall notify the other party hereto as promptly as practicable
of: (1) any breach of any of its representations, warranties or agreements
contained herein; (2) any occurrence, or impending occurrence, of any event or
circumstance which would cause or constitute a material breach of any of the
representations, warranties or agreements of it contained herein; and (3) any
material adverse change in its financial condition, results of operations or
business; and (4) it shall use its best efforts to prevent or remedy the same;
(I) it shall cooperate and use its best efforts to promptly prepare and
file all necessary documentation, to effect all necessary applications, notices,
petitions, filings and other documents, and to obtain all necessary permits,
consents, approvals and authorizations of all third parties and governmental
bodies or agencies, including, in the case of Synovus, submission of
applications for approval of the Plan and the transactions contemplated hereby
to the Board of Governors of the Federal Reserve System (the "Board of
Governors") in accordance with the provisions of the Bank Holding Company Act of
1956, as amended (the "BHC Act"), the Georgia Department of Banking and Finance
("Georgia Department") and the Tennessee Department of Financial Institutions
("Tennessee Department"), and to such other regulatory agencies as required by
law;
(J) it will use its best efforts to cause the Merger to qualify as a
reorganization within the meaning of Section 368(a) of the Code for federal
income tax purposes;
(K) Synovus shall use its best efforts to cause the shares of Synovus
Common Stock to be issued pursuant to the terms of this Plan to be approved for
listing on the NYSE, and each such share shall be entitled to ten votes per
share in accordance with and subject to those certain Articles of Amendment to
Synovus' Articles of Incorporation dated April 24, 1986;
-14-
(L) following the Effective Date, Synovus shall continue to provide
generally to officers and employees of CFGI and its Subsidiaries employee
benefits, including without limitation pension benefits, health and welfare
benefits, life insurance and vacation and severance arrangements (collectively,
"Employee Benefits"), on terms and conditions which, when taken as a whole, are
substantially similar to those currently provided by CFGI and its Subsidiaries.
As soon as administratively and financially practicable following the Effective
Date, Synovus shall provide generally to officers and employees of CFGI and its
Subsidiaries Employee Benefits which, when taken as a whole, are substantially
similar to those provided from time to time by Synovus and its Subsidiaries to
their similarly situated officers and employees. CFGI agrees to terminate its
Associates Stock Purchase Plan as of the Effective Date. With respect to
Employee Benefits maintained by Synovus in which CFGI participates after the
Effective Date, Synovus agrees: (1) to treat service by CFGI employees prior to
the Effective Date as service with Synovus for eligibility and vesting purposes
only; and (2) to waive pre-existing condition limitations, if any, as would
otherwise be applied to participating employees of CFGI upon the implementation
of such Employee Benefits constituting "group health plans" within the meaning
of Section 5000(b)(i) of the Code;
(M) it shall promptly furnish the other party with copies of all
documents filed prior to the Effective Date with the SEC and all documents filed
with other governmental or regulatory agencies or bodies in connection with the
Merger;
(N) CFGI shall use its best efforts to cause each director, executive
officer and other person who is an "affiliate" (for purposes of Rule 145 under
the Securities Act) to deliver to Synovus as soon as practicable after the date
hereof, but in no event after the date of the CFGI shareholders' meeting called
to approve the Merger, a written agreement providing that such person will not
sell, pledge, transfer or otherwise dispose of any shares of CFGI Common Stock
held by such "affiliate" except as contemplated by this Agreement, and will not
sell pledge, transfer or otherwise dispose of the shares of Synovus Common Stock
to be received by such "affiliate" in the Merger, except in compliance with the
applicable provisions of the Securities Act and the rules and regulations
thereunder. The certificates of Synovus Common Stock issued to affiliates of
CFGI will bear an appropriate legend reflecting the foregoing;
(O) it will not directly or indirectly take any action or omit to take
any action to cause any of its representations and warranties made in this Plan
to become untrue;
(P) in the case of Synovus, it shall take no action which would cause
the shareholders of CFGI to recognize gain or loss as a result of the Merger to
the extent such shareholders would not otherwise recognize gain or loss as
described in Paragraph (A)(8) of Article V;
-15-
(Q) CFGI shall coordinate with Synovus the declaration of any dividends
in respect of CFGI Common Stock and the record dates and payment dates relating
thereto, it being the intention of the parties hereto that holders of CFGI
Common Stock shall not receive two dividends, or fail to receive one dividend,
for any single calendar quarter with respect to their shares of CFGI Common
Stock and any shares of Synovus Common Stock any such holder receives in
exchange therefor in the Merger;
(R) CFGI will, within 60 days after the date hereof, engage a firm
satisfactory to Synovus to conduct: (a) a phase one environmental assessment of
the banking facilities currently owned by CFGI upon which CFGI is conducting a
banking business, which assessment shall meet the standards of ASTM E1527-97 and
shall include at a minimum a site history, on-site inspection, asbestos report,
evaluation of surrounding properties and soil tests in the event any underground
storage tanks are discovered; and (b) a transaction screen that meets the
standards of ASTM E 1528 for the properties that CFGI leases, and in addition,
CFGI agrees to conduct a phase one assessment of the leased properties if, in
Synovus' reasonable judgment, the transaction screen indicates potential
environmental liabilities associated with the leased properties. Synovus has
requested such inspection and testing in an effort to reasonably determine
whether potential liabilities exist relating to Environmental Law. Delivery of
the phase one assessments and transaction screens satisfactory to Synovus is an
express condition precedent to the consummation of the Merger. Within 15 days
after receipt of these reports, Synovus shall notify CFGI in writing whether or
not, in the reasonable judgment of Synovus, the results of such reports will
have a Material Adverse Effect on CFGI. In the event that Synovus determines, in
its reasonable judgment, that the results of such reports will have a Material
Adverse Effect on CFGI, such written notification shall include a statement by
Synovus regarding whether or not it intends to terminate this Agreement based
upon the results of such reports. The Parties agree that Synovus has given CFGI
good and valuable consideration for its agreement to obtain and pay the cost of
such inspection and testing, and Synovus shall be entitled to rely on same;
(S) prior to the Effective Date, CFGI shall purchase for, and on behalf
of, its current and former officers and directors, extended coverage under the
current directors' and officers' liability insurance policy maintained by CFGI
to provide for continued coverage of such insurance for a period of four years
following the Effective Date with respect to matters occurring prior to the
Effective Date;
(T)(1) in the case of Synovus, subject to the conditions set forth in
Paragraph (2) below, for a period of four years after the Effective Date,
Synovus shall indemnify, defend and hold harmless each person entitled to
indemnification from CFGI and its Subsidiaries (each, an "Indemnified Party")
against all liabilities arising out of actions or omissions occurring at or
prior to the Effective Date (including the transactions contemplated by this
Agreement) to the fullest extent permitted under Georgia law and by CFGI's and
its Subsidiaries' Articles of
-16-
Incorporation and bylaws as in effect on the date hereof, including provisions
relating to advances of expenses incurred in the defense of any litigation.
Without limiting the foregoing, in any case in which approval by Synovus is
required to effectuate any indemnification, Synovus shall direct, at the
election of the Indemnified Party, that the determination of any such approval
shall be made by independent counsel mutually agreed upon between Synovus and
the Indemnified Party.
(2) Any Indemnified Party wishing to claim indemnification under
Paragraph (T)(1) upon learning of any such liability or litigation, shall
promptly notify Synovus thereof. In the event of any such litigation (whether
arising before or after the Effective Date), (a) Synovus shall have the right to
assume the defense thereof, and Synovus shall not be liable to such Indemnified
Parties for any legal expenses of other counsel or any other expenses
subsequently incurred by such Indemnified Parties in connection with the defense
thereof, except that if Synovus elects not to assume such defense or counsel for
the Indemnified Parties advises that there are substantive issues which raise
conflicts of interest between Synovus and the Indemnified Parties, the
Indemnified Parties may retain counsel satisfactory to them, and Synovus shall
pay all reasonable fees and expenses of such counsel for the Indemnified Parties
promptly as statements therefor are received; provided, that Synovus shall be
obligated pursuant to this Paragraph (2) to pay for only one firm of counsel for
all Indemnified Parties in any jurisdiction, unless, in the written opinion of
counsel for the Indemnified Parties, there exist conflicts of interest which
would prevent the same counsel from representing all Indemnified Parties, (b)
the Indemnified Parties will cooperate in the defense of any such litigation,
and (c) Synovus shall not be liable for any settlement effected without its
prior written consent; and provided further, that Synovus shall not have any
obligation hereunder to any Indemnified Party when and if a court of competent
jurisdiction shall determine, and such determination shall have become final,
that the indemnification of such Indemnified Party in the manner contemplated
hereby is prohibited by applicable law;
(U) prior to the Effective Date, CFGI will use its best efforts to take
all steps required to exempt the transactions contemplated by this Agreement
from any applicable state anti-takeover law; and
(V) at the request of Synovus, CFGI and The Bank of Nashville shall
immediately prior to the Effective Date establish and take such reserves and
accruals as Synovus reasonably shall request to conform The Bank of Nashville's
loan, accrual, reserve and other accounting policies to the policies of Synovus,
provided however, such requested conforming adjustment shall not be taken into
account in determining whether an event or events have had a Material Adverse
Effect on CFGI.
-17-
V. CONDITIONS TO CONSUMMATION
(A) The respective obligations of Synovus and of CFGI to effect the
Merger shall be subject to the satisfaction prior to the Effective Date of the
following conditions:
(1) the Plan and the transactions contemplated hereby shall
have been approved by the requisite vote of the shareholders of CFGI in
accordance with applicable law and CFGI shall have furnished to Synovus
certified copies of resolutions duly adopted by CFGI's shareholders evidencing
the same;
(2) the procurement by Synovus and CFGI of approval of the
Plan and the transactions contemplated hereby by the Board of Governors, the
Georgia Department and by the Tennessee Department;
(3) procurement of all other regulatory consents and approvals
which are necessary to the consummation of the transactions contemplated by the
Plan; provided, however, that no approval or consent in Paragraphs (A)(2) and
(A)(3) of this Article V shall be deemed to have been received if it shall
include any conditions or requirements (other than conditions or requirements
which are customarily included in such an approval or consent) which would have
such a material adverse impact on the economic or business benefits of the
transactions contemplated hereby as to render inadvisable the consummation of
the Merger in the reasonable opinion of the Board of Directors of Synovus or
CFGI;
(4) the satisfaction of all other statutory or regulatory
requirements which are necessary to the consummation of the transactions
contemplated by the Plan;
(5) no party hereto shall be subject to any order, decree or
injunction or any other action of a United States federal or state court of
competent jurisdiction permanently restraining, enjoining or otherwise
prohibiting the transactions contemplated by this Agreement;
(6) no party hereto shall be subject to any order, decree or
injunction or any other action of a United States federal or state governmental,
regulatory or administrative agency or commission permanently restraining,
enjoining or otherwise prohibiting the transactions contemplated by this
Agreement;
(7) the Registration Statement shall have become effective
under the Securities Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been initiated or threatened by the SEC, and Synovus shall
have received all state securities law and "Blue Sky"
-18-
permits, approvals, qualifications or exemptions necessary to consummate the
transactions contemplated hereby;
(8) each party shall have received an opinion ("Tax Opinion")
from KPMG LLP, certified public accountants ("KPMG"), updated as of the
Effective Date, to the effect that the Merger will be treated for federal income
tax purposes as a reorganization within the meaning of Section 368(a)(1)(A) of
the Code and that, accordingly: (i) no gain or loss will be recognized by
Synovus or CFGI as a result of the Merger; and (ii) no gain or loss will be
recognized by the shareholders of CFGI who exchange their shares of CFGI Common
Stock solely for shares of Synovus Common Stock pursuant to the Merger; and
(9) each party shall have delivered to the other party a
certificate, dated as of the Effective Date, signed by its Chairman of the Board
and its Chief Financial Officer, to the effect that, to the best knowledge and
belief of such officers, the statement of facts and representations made on
behalf of the management of such party, presented to KPMG in delivering the Tax
Opinion, were at the date of such presentation true, correct and complete. Each
party shall have received a copy of the Tax Opinion referred to in Paragraph
(A)(8) of this Article V.
(B) The obligation of Synovus to effect the Merger shall be subject to
the satisfaction prior to the Effective Date of the following additional
conditions:
(1) each of the representations, warranties and covenants
contained herein of CFGI shall be true on, or complied with by, the Effective
Date in all material respects as if made on such date (or on the date when made
in the case of any representation or warranty which specifically relates to an
earlier date) and Synovus shall have received a certificate signed by the Chief
Executive Officer of CFGI, dated the Effective Date, to such effect;
(2) there shall be no discovery of facts, or actual or
threatened causes of action, investigations or proceedings by or before any
court or other governmental body that relates to or involves either CFGI or its
Subsidiaries: (a) which, in the reasonable judgment of Synovus, would have a
Material Adverse Effect on, or which may be foreseen to have Material Adverse
Effect on, either CFGI or the consummation of the transactions contemplated by
this Agreement; (b) that challenges the validity or legality of this Agreement
or the consummation of the transactions contemplated by this Agreement; or (c)
that seeks to restrain or invalidate the consummation of the transactions
contemplated by this Agreement or seeks damages in connection therewith;
(3) Synovus shall not have learned of any fact or condition
with respect to the business, properties, assets, liabilities, deposit
relationships or earnings of CFGI which, in the reasonable judgment of Synovus,
is materially at variance with one or more of the
-19-
warranties or representations set forth in this Agreement or which, in the
reasonable judgment of Synovus, has or will have a Material Adverse Effect on
CFGI;
(4) J. Hunter Atkins shall have entered into an employment
agreement with Synovus as proposed by Synovus and approved by Mr. Atkins which
will become effective as of the Effective Date;
(5) on the Effective Date, The Bank of Nashville will have a
CAMEL rating of at least 2 and a Compliance Rating and Community Reinvestment
Act Rating of at least Satisfactory;
(6) on the Effective Date, CFGI will have a loan loss reserve
of at least 1.50% of loans and which will be adequate in all material respects
under generally accepted accounting principles applicable to banks;
(7) CFGI shall have delivered to Synovus the environmental
reports referenced in Paragraph (R) of Article IV;
(8) each of the officers and directors of CFGI shall have
delivered a letter to Synovus to the effect that such person is not aware of any
claims he might have against CFGI other than routine compensation, benefits and
the like as an employee, or ordinary rights as a customer; and
(9) there shall have been no determination by Synovus that any
fact, event or condition exists or has occurred that, in the reasonable judgment
of Synovus, would render the Merger impractical because of any state of war,
national emergency, banking moratorium or general suspension of trading on
Nasdaq, the New York Stock Exchange, Inc. or other national securities exchange.
(C) The obligation of CFGI to effect the Merger shall be subject to the
satisfaction prior to the Effective Date of the following additional conditions:
(1) each of the representations, warranties and covenants
contained herein of Synovus shall be true on, or complied with by, the Effective
Date in all material respects as if made on such date (or on the date when made
in the case of any representation or warranty which specifically relates to an
earlier date) and CFGI shall have received a certificate signed by the Chief
Executive Officer of Synovus, dated the Effective Date, to such effect;
(2) the listing for trading of the shares of Synovus Common
Stock which shall be issued pursuant to the terms of this Plan on the NYSE shall
have been approved by the
-20-
NYSE subject to official notice of issuance and the Board of Directors of
Synovus shall have adopted resolutions granting shareholders of CFGI Common
Stock ten votes per share;
(3) there shall be no discovery of facts, or actual or
threatened causes of action, investigations or proceedings by or before any
court or other governmental body that relates to or involves either Synovus or
its Subsidiaries: (a) which, in the reasonable judgment of CFGI, would have a
Material Adverse Effect on, or which may be foreseen to have a Material Effect
on, either Synovus or the consummation of the transactions contemplated by this
Agreement; (b) that challenges the validity or legality of this Agreement or the
consummation of the transactions contemplated by the Agreement; or (c) that
seeks to restrain or invalidate the consummation of the transactions
contemplated by this Agreement or seeks damages in connection therewith;
(4) CFGI shall not have learned of any fact or condition with
respect to the business, properties, assets, liabilities, deposit relationships
or earnings of Synovus which, in the reasonable judgment of CFGI, is materially
at variance with one or more of the warranties or representations set forth in
this Agreement or which, in the reasonable judgment of CFGI, has or will have a
Material Adverse Effect on Synovus;
(5) CFGI shall have received from the Senior Deputy General
Counsel of Synovus an opinion to the effect that Synovus is duly organized,
validly existing and in good standing, the Plan has been duly and validly
authorized by all necessary corporate action on the part of Synovus, has been
duly and validly executed and delivered by Synovus, is the valid and binding
obligation of Synovus, enforceable in accordance with its terms except as such
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally and
that the shares of Synovus Common Stock to be issued in the Merger are duly
authorized, validly issued, fully paid, nonassessable, and not subject to any
preemptive rights of any current or past shareholders;
(6) CFGI shall have received from McDonald Investments, Inc. a
letter to the effect that, in the opinion of such firm, the Per Share Exchange
Ratio is fair, from a financial point of view, to the holders of CFGI Common
Stock; and
(7) there shall have been no determination by CFGI that any
fact, event or condition exists or has occurred that, in the reasonable judgment
of CFGI, would render the Merger impractical because of any state of war,
national emergency, banking moratorium, or a general suspension of trading on
Nasdaq, the New York Stock Exchange, Inc. or other national securities exchange.
-21-
VI. TERMINATION
A. The Plan may be terminated prior to the Effective Date, either
before or after its approval by the stockholders of CFGI:
(1) by the mutual consent of Synovus and CFGI, if the Board of
Directors of each so determines by vote of a majority of the members of its
entire Board;
(2) by Synovus or CFGI if consummation of the Merger does not
occur by reason of the failure of any of the conditions precedent set forth in
Article V hereof unless the failure to meet such condition precedent is due to a
breach of the Plan by the party seeking to terminate;
(3) by Synovus or CFGI if its Board of Directors so determines
by vote of a majority of the members of its entire Board in the event that the
Merger is not consummated by October 31, 2002 unless the failure to so
consummate by such time is due to the breach of the Plan by the party seeking to
terminate;
(4) by CFGI, if the closing price of Synovus Common Stock on
the NYSE decreases by more than 15% from $26.83 and such decrease as measured
from April 26, 2002 exceeds the change in the aggregate closing price per share
of an index of Southeastern Bank Holding Company stocks consisting of BB&T
Corporation, SunTrust Banks, Inc., SouthTrust Corporation, First Tennessee
National Corporation, AmSouth Bancorporation, Wachovia Corporation, Compass
Bancshares, Inc., First Virginia Banks, Inc., Hibernia Corporation, The Colonial
BancGroup, Inc., Regions Financial Corporation and Union Planters Corporation,
on any date of determination, including the Effective Date, by more than 15
percentage points. Synovus shall perform such calculation on a monthly basis and
notify CFGI of any such change and CFGI shall thereafter have five business days
in which to make a determination to terminate this Agreement; and
(5) by Synovus, if the closing price of Synovus Common Stock
on the NYSE exceeds $30.25 by 15% or more and such percentage increase over
$30.25, as measured from the first date the closing price of Synovus Common
Stock on the NYSE exceeds $30.25, exceeds the change in the aggregate closing
price per share of an index of Southeastern Bank Holding Company stocks
consisting of BB&T Corporation, SunTrust Banks, Inc., SouthTrust Corporation,
First Tennessee National Corporation, AmSouth Bancorporation, Wachovia
Corporation, Compass Bancshares, Inc., First Virginia Banks, Inc., Hibernia
Corporation, The Colonial BancGroup, Inc., Regions Financial Corporation and
Union Planters Corporation, on any date of determination, including the
Effective Date, by more than 15 percentage points. Synovus shall perform such
calculation on a monthly basis and notify CFGI of any such change and CFGI shall
thereafter have five business days in which to
-22-
make a determination to terminate this Agreement.
B. In the event of the termination and abandonment of this Agreement
pursuant to Article VI(A) of this Agreement, this Agreement shall become void
and have no effect, except as set forth in Paragraph (A) of Article VIII, and
there shall be no liability on the part of any party hereto or their respective
officers or directors; provided, however, that: (1) CFGI shall be entitled to a
cash payment from Synovus for CFGI's reasonable out-of-pocket expenses relating
to the Merger in an amount not to exceed $150,000, which amount shall not be
deemed an exclusive remedy or liquidated damages, in the event of the
termination of this Agreement due to (i) the failure by Synovus to satisfy any
of its representations, warranties or covenants set forth herein; or (ii)
withdrawal of the fairness opinion of McDonald Investments Inc., other than a
withdrawal due to materially inaccurate or fraudulent information having been
provided by CFGI to McDonald Investments, Inc.; and (2) Synovus shall be
entitled to a cash payment from CFGI for Synovus' reasonable out-of-pocket
expenses relating to the Merger and for reimbursement of the fair market value
of services provided by internal counsel and due diligence team members in
connection with the Merger in an amount not to exceed $150,000, which amount
shall not be deemed an exclusive remedy or liquidated damages, in the event of
the termination of this Agreement due to the failure by CFGI to satisfy any of
its representations, warranties or covenants set forth herein.
VII. EFFECTIVE DATE
The "Effective Date" shall be the date on which the Merger becomes
effective as specified in the Certificate of Merger to be filed with the
Secretary of State of Georgia and the Secretary of State of Tennessee approving
the Merger.
VIII. OTHER MATTERS
(A) The agreements and covenants of the parties which by their terms
apply in whole or in part after the Effective Date shall survive the Effective
Date. Except for Paragraph (R) of Article III, and Paragraph (N) of Article IV
which shall survive the Effective Date, no other representations, warranties,
agreements and covenants shall survive the Effective Date. If the Plan shall be
terminated, the agreements of the parties in Paragraph (G) of Article IV,
Paragraph (B) of Article VI and Paragraphs (E) and (F) of this Article shall
survive such termination.
(B) Prior to the Effective Date, any provision of the Plan may be: (1)
waived by the party benefited by the provision or by both parties; or (2)
amended or modified at any time (including the structure of the transaction) by
an agreement in writing between the parties hereto approved by their respective
Boards of Directors (to the extent allowed by law) or by their respective Boards
of Directors.
-23-
(C) This Plan may be executed in multiple and/or facsimile originals,
and each copy of the Plan bearing the manually executed, facsimile transmitted
or photocopied signature of each of the parties hereto shall be deemed to be an
original.
(D) The Plan shall be governed by, and interpreted in accordance with,
the laws of the State of Georgia.
(E) Each party hereto will bear all expenses incurred by it in
connection with the Plan and the transactions contemplated hereby, including,
but not limited to, the fees and expenses of its respective counsel and
accountants.
(F) Each of the parties and its respective agents, attorneys and
accountants will maintain the confidentiality of all information provided in
connection herewith which has not been publicly disclosed unless it is advised
by counsel that any such information is required by law to be disclosed.
(G) All notices, requests, acknowledgments and other communications
hereunder to a party shall be in writing and shall be deemed to have been duly
given when delivered by hand, telecopy, telegram or telex (confirmed in
writing), by overnight courier or sent by registered or certified mail, postage
paid, to such party at its address set forth below or such other address as such
party may specify by notice to the other party hereto.
If to Synovus, to Mr. Thomas J. Prescott, Executive Vice President and
Chief Financial Officer of Synovus, Suite 301, 901 Front Avenue, Columbus,
Georgia 31901 (Fax Number 706/649-2342), with a copy to Ms. Kathleen Moates at
the same address.
If to CFGI, to Mr. J. Hunter Atkins, Chief Executive Officer of CFGI,
401 Church Street, Nashville, Tennessee 37219 (Fax Number 615-271-2149), with a
copy to Mary Neil Price, Miller & Martin, LLP, 1200 One Nashville Place, 150 4th
Avenue North, Nashville, Tennessee 37219.
(H) All terms and provisions of the Plan shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns. Except as expressly provided for herein, nothing in this Plan is
intended to confer upon any other person any rights or remedies of any nature
whatsoever under or by reason of this Plan.
(I) The Plan represents the entire understanding of the parties hereto
with reference to the transactions contemplated hereby and supersedes any and
all other oral or written agreements heretofore made.
-24-
(J) This Plan may not be assigned by any party hereto without the
written consent of the other parties.
In Witness Whereof, the parties hereto have caused this instrument to
be executed in counterparts by their duly authorized officers as of the day and
year first above written.
SYNOVUS FINANCIAL CORP.
By: /s/Thomas J. Prescott
---------------------------------------------
Title: EVP & CFO
-----------------------------------
Attest: /s/Kathy Moates
------------------------------------------
Title: Assistant Secretary
-----------------------------------
COMMUNITY FINANCIAL GROUP, INC.
BY: /s/J. Hunter Atkins
-------------------------------------------
Title: CEO/President
-----------------------------------
Attest: /s/Malinda White
-----------------------------------------
Title: Corporate Secretary
-----------------------------------
acq\Nashville\CFGIMERGER.doc
-25-
Appendix "B"
TRIDENT SECURITIES
A DIVISION OF MCDONALD INVESTMENTS INC.
INVESTMENT BANKING
THE PINNACLE, SUITE 650
3455 PEACHTREE ROAD, NE
ATLANTA, GEORGIA 30325
TELEPHONE (404)495-2011
FACSIMILE (404)495-2008
April 29, 2002
Board of Directors
Community Financial Group, Inc.
401 Church Street
Nashville, TN 37219
Members of the Board:
You have requested our opinion with respect to the fairness, from a
financial point of view, as of the date hereof, to the holders of the common
stock, par value of $6.00 per share ("Common Stock"), of Community Financial
Group, Inc. ("CFGI"), of the Consideration, as set forth in the Agreement and
Plan of Reorganization dated as of April 29, 2002 (the "Agreement"), between
CFGI and Synovus Corporation ("Synovus").
The Agreement provides for the merger (the "Merger") of CFGI with and
into Synovus. Pursuant to the Agreement, at the Effective Time (as defined in
the Agreement) each outstanding share of CFGI Common Stock will be converted
into the right to receive shares of common stock, par value of $1.00 per share,
of Synovus ("Synovus Common Stock"), equal to $26 per share ("the Price") if the
average closing price for shares of Synovus Common Stock is between $26.83 and
$30.25 for the 15 trading days prior to closing of the transaction ("Pricing
Period"). If the average closing price for shares of Synovus Common Stock in the
Pricing Period is equal to greater than $30.25, then each outstanding share of
CFGI Common Stock will be converted into a right to receive 0.86 shares of
Synovus Common Stock. If the average closing price for shares of Synovus Common
Stock in the Pricing Period is equal to or less than $26.83, then each
outstanding share of CFGI will be converted into a right to receive .969 shares
of Synovus Common Stock. The fixed exchange ratios of .969 and .860 shall be
defined as the "Exchange Ratio Collar". The Price and the Exchange Ratio Collar
are collectively "the Consideration." The terms and conditions of the Merger are
more fully set forth in the Agreement.
Trident Securities, a division of McDonald Investments Inc., as part of
its investment banking business, is customarily engaged in the valuation of
businesses and their securities in connection with mergers and acquisitions,
negotiated underwritings, secondary distributions of listed and unlisted
securities, private placements and valuations for estate, corporate and other
purposes.
Board of Directors
April 29, 2002
Page 2
We have acted as CFGI's financial advisor in connection with, and have
participated in certain negotiations leading to, the Agreement. In connection
with rendering our opinion set forth herein, we have among other things:
(i) Reviewed CFGI's Annual Reports to Shareholders and Annual
Reports on Form 10-K for each of the years ended December 31,
2001, December 31, 2000 and December 31, 1999, including the
audited financial statements contained therein;
(ii) Reviewed Synovus's Annual Reports to Shareholders and Annual
Reports on Form 10-K for each of the years ended December 31,
2001, December 31, 2000 and December 31, 1999, including the
audited financial statements contained therein;
(iii) Reviewed certain other information, primarily financial in
nature, relating to the respective businesses, earnings,
assets and prospects of CFGI and Synovus provided to us or
publicly available;
(iv) Participated in meetings and telephone conferences with
members of senior management of CFGI and Synovus concerning
the financial condition, business, assets, financial forecasts
and prospects of the respective companies, as well as other
matters we believed relevant to our inquiry;
(v) Reviewed certain stock market information for CFGI Common
Stock and Synovus Common Stock, and compared it with similar
information for certain companies, the securities of which are
publicly traded;
(vi) Compared the results of operations and financial condition of
CFGI and Synovus with that of certain companies which we
deemed to be relevant for purposes of this opinion;
(vii) Reviewed the financial terms, to the extent publicly
available, of certain acquisition transactions which we deemed
to be relevant for purposes of this opinion;
(viii) Reviewed the Agreement and certain related documents; and
(ix) Performed such other reviews and analyses as we have deemed
appropriate.
In our review and analysis and in arriving at our opinion, we have
assumed and relied upon the accuracy and completeness of all of the financial
and other information
Board of Directors
April 29, 2002
Page 3
reviewed by us and have relied upon the accuracy and completeness of the
representations, warranties and covenants of CFGI and Synovus contained in the
Agreement. We have not been engaged to undertake, and have not assumed any
responsibility for, nor have we conducted, an independent investigation or
verification of such matters. We have not been engaged to and we have not
conducted a physical inspection of any of the assets, properties or facilities
of either CFGI or Synovus, nor have we made or obtained or been furnished with
any independent valuation or appraisal of any such assets, properties or
facilities or any of the liabilities of either CFGI or Synovus. With respect to
financial forecasts used in our analysis, we have assumed that such forecasts
reflect the best currently available estimates and judgements of the management
of CFGI and Synovus, as to the future performance of CFGI, Synovus, and CFGI and
Synovus combined, as the case may be. We have not been engaged to and we have
not assumed any responsibility for, nor have we conducted any independent
investigation or verification of such matters, and we express no view as to such
financial forecasts or the assumptions on which they are based. We have also
assumed that all of the conditions to the consummation of the Merger, as set
forth in the Agreement, including the tax-free treatment of the Merger to the
holders of CFGI Common Stock, would be satisfied and that the Merger would be
consummated on a timely basis in the manner contemplated by the Agreement.
We will receive a fee for our services as financial advisor to CFGI and
for rendering this opinion, a substantial portion of which is contingent upon
closing of the Merger.
In the ordinary course of business, we may actively trade securities of
CFGI and Synovus for our own account and for the accounts of customers and,
accordingly, we may at any time hold a long or short position in such
securities.
This opinion is based on economic and market conditions and other
circumstances existing on, and information made available as of, the date
hereof. In addition, our opinion is, in any event, limited to the fairness, as
of the date hereof, from a financial point of view, of the Consideration to be
received by the holders of CFGI Common Stock, and does not address the
underlying business decision of CFGI's Board of Directors to effect the Merger,
does not compare or discuss the relative merits of any other terms of the
Merger, and does not constitute a recommendation to any CFGI shareholder as to
how such shareholder should vote with respect to the Merger. This opinion does
not represent an opinion as to what the value of CFGI Common Stock or Synovus
Common Stock may be at the Effective Time of the Merger or as to the prospects
of CFGI's business or Synovus's business.
This opinion is directed to the Board of Directors of CFGI and may not
be reproduced, summarized, described or referred to or given to any other person
without our prior consent. Notwithstanding the foregoing, this opinion may be
included in the proxy statement/prospectus to be mailed to the holders of CFGI
Common Stock in
Board of Directors
April 29, 2002
Page 4
connection with the Merger, provided that this opinion will be reproduced in
such proxy statement/prospectus in full, and any description of or reference to
us or our actions, or any summary of the opinion in such proxy
statement/prospectus, will be in form reasonably acceptable to us and our
counsel.
Based upon and subject to the foregoing, it is our opinion that, as of
the date hereof, the Consideration is fair to the holders of CFGI Common Stock
from a financial point of view.
Very truly yours,
/s/Trident Securities
TRIDENT SECURITIES
A Division of McDonald
Investments Inc.
APPENDIX "C"
KPMG[LOGO]
Financial Center, Suite 1200 Telephone 205 324 2495
Birmingham, AL 35203 Fax 205 324 3084
June 11, 2002
Board of Directors
Synovus Financial Corp.
901 Front Avenue
Suite 301
Columbus, GA 31901
Board of Directors
Community Financial Group, Inc.
401 Church Street
Suite 200
Nashville, TN 37219
Gentlemen:
You have requested the opinion of KPMG LLP ("KPMG") regarding certain federal
income tax consequences resulting from the proposed transaction. In the proposed
transaction, Community Financial Group, Inc. (the "Company"), a bank holding
company, will merge with and into Synovus Financial Corp. (the "Buyer"), a bank
holding company (the "Merger"), whereupon the separate existence of Company will
cease. Company shareholders will, automatically and without any action on the
part of the holder, receive Buyer Common Stock, as described in the Merger
Agreement.
You have submitted for our consideration:
* certain representations as to the proposed transactions;
* a copy of the Agreement and Plan of Merger, dated April 29, 2002 (the
"Merger Agreement"); and,
* a copy of the Form 10-Q Quarterly Report filed with the Securities and
Exchange Commission ("SEC") on May 15, 2002 (the Merger Agreement and the
Form 10-Q collectively being the "Documents").
We have not reviewed the legal documents necessary to effectuate the steps to be
undertaken and we assume that all steps will be effectuated under state and
federal law and will be consistent with the legal documentation and with the
description of the steps in the Documents.
Board of Directors
June 11, 2002
Page 2
Facts and Representations
Buyer is a registered bank holding company organized under the laws of the State
of Georgia. Buyer's authorized capital stock consists of one class. It has
authorized 600,000,000 shares of Common Stock, $1.00 par value, of which
295,426,952 shares were outstanding at March 31, 2002 (the "Buyer Common
Stock").
Company is a registered bank holding company organized under the laws of the
State of Tennessee. Its authorized capital stock consists of one class. It has
authorized 50,000,000 shares of Common Stock, $6.00 par value per share, of
which 3,078,710 shares were issued and outstanding at March 31, 2002 (the
"Company Common Stock").
For valid corporate business purposes, pursuant to the Merger Agreement and on
the Effective Date (as that term is defined in the Merger Agreement), Company
will merge with and into Buyer, with Buyer as the surviving entity. The Merger
Agreement provides that automatically and without any action on the part of the
holder, each share of the Company Common Stock issued and outstanding on the
Effective Date (as defined in the Merger Agreement) shall be converted into and
exchanged for between .860 and .969 shares of Buyer Common Stock.
No fractional shares of Buyer Common Stock will be issued in connection with the
Merger. Instead, each Company shareholder who would otherwise be entitled to
receive a fraction of a share of Buyer Common Stock shall receive cash (without
interest) in an amount equal to the fraction of a share of Buyer Common Stock
that otherwise would be received in the Merger, multiplied by the closing price
of one share of Buyer Common Stock on the New York Stock Exchange ("NYSE") on
the fifth business day immediately preceding the Effective Date of the Merger.
Effective April 27, 1999, the Board of Directors of Buyer adopted a plan that
provides the common shareholders of Buyer with Common Stock Purchase Rights
("poison pill rights"), i.e. rights to acquire the stock of Buyer or its
successor. Under the terms of the plan, holders of Buyer Common Stock received a
poison pill right for each share of Buyer Common Stock held by them. A
shareholder's ability to exercise his rights is contingent upon the occurrence
of either a tender offer for 15% or more, or the actual acquisition of 10% or
more, of Buyer Common Stock by a corporation or individual (the "acquiring
person") without the approval of Buyer's Board of Directors.
In general, the rights become exercisable on the earlier of (1) ten days
following a public announcement that, without prior approval of Buyer, a person
or group of affiliated persons has acquired, or obtained the right to acquire,
beneficial ownership of 10% or
Board of Directors
June 11, 2002
Page 3
more of the outstanding common stock of Buyer, or (2) ten days following the
commencement or announcement of an intention to make a tender offer or exchange
offer, without the prior written consent of Buyer, for 15% or more of the
outstanding shares of Buyer Common Stock. Until the rights become exercisable,
they cannot be transferred separately from the underlying common stock on which
they were distributed, nor are the rights represented by any certificate other
than the underlying stock certificate itself. In addition, Buyer may redeem the
poison pill rights for 1 cent per right until the date that specified events
occur. The poison pill rights expire on May 5, 2009.
Once they become exercisable, the poison pill rights entitle the holder to
purchase from Buyer one share of common stock. No fractional shares of common
stock will be issued upon exercise of a poison pill right. In lieu thereof, a
payment in cash will be made to the holder of such poison pill right equal to
the same fraction of the current market value of a share of common stock.
If, after the rights become exercisable, a "flip-in" or "flip-over" event
occurs, all holders of such rights, except the acquiring person, are entitled to
purchase, at a 50 percent discount, the stock of either Buyer or the acquiring
corporation (whichever is applicable). A "flip-in" event is either (1) the
acquisition by the acquiring person of 15% or more of the outstanding stock of
Buyer, or (2) the conduct of certain self-dealing transactions between an
acquiring person or any of its affiliates or associates and Buyer. A "flip-over"
event is either (1) a merger or other business combination in which Buyer is not
the surviving corporation, or (2) a sale or transfer of more than 30% of the
assets or earning power of Buyer and its subsidiaries (taken as a whole) in one
or a series of transactions.
In the event that, subsequent to the Merger Agreement but prior to the Effective
Date, the outstanding shares of Buyer Common Stock shall have increased,
decreased, changed into or exchanged for a different number or kind of shares or
securities through reorganization, recapitalization, reclassification, stock
dividend, stock split, reverse stock split, or other like changes in Buyer's
capitalization, then an appropriate and proportionate adjustment will be made to
the exchange ratio so to prevent the dilutive effect of such transaction on a
percentage of ownership basis.
Company shareholders will not be entitled to rights of dissent and appraisal in
connection with the Merger pursuant to the Tennessee Act.
The Merger has been approved by the Boards of Directors of Company and Buyer and
is subject to the receipt of regulatory approval from appropriate parties,
including the Board of Governors of the Federal Reserve System, the Georgia
Department, and by the Tennessee Department.
Board of Directors
June 11, 2002
Page 4
In addition to the foregoing statement of facts, the following representations
have been made by Buyer and/or Company, as applicable, to KPMG in connection
with the Merger. KPMG has not independently verified the completeness and
accuracy of any of the following representations. KPMG is relying on these
representations in rendering the opinion contained herein.
With Respect to the Merger
(a) The fair market value of Buyer Common Stock and other consideration, if
any, received by each shareholder of Company will be approximately equal
to the fair market value of Company Common Stock surrendered in the
exchange.
(b) Neither Buyer, Company, nor any subsidiary or related person has any plan
or intention to reacquire any of Buyer shares issued in the Merger or to
acquire any share of Company prior to the Merger. Company is not aware of
any plan or intention on the part of the Company shareholders to sell
Company Common Stock to any person related to Company or Buyer prior to
the transaction. In addition, Company does not intend to redeem or
declare an extraordinary dividend with respect to the Company Common
Stock prior to the transaction.
For purposes of this representation, two persons are "related" if the
persons are corporations and either immediately before or immediately
after a transaction are members of the same "affiliated group."
"Affiliated group" for these purposes generally means two or more
corporations currently linked or which pursuant to a plan will be linked
with a common parent company through ownership chains comprising at least
80 percent of the voting power of each corporation and 80 percent of the
value of each corporation's shares. In addition, "related person"
includes two or more corporations for whom a purchase of the stock of one
corporation by another corporation would be treated as a distribution in
redemption of the stock of the first corporation. This treatment as a
distribution in redemption occurs (a) when a person holding any amount of
shares in a parent corporation or, (b) when a person in control of each
of two corporations sells shares of one controlled corporation to the
other corporation. For these purposes, "control" means the ownership of
shares possessing at least 50 percent of the value (or vote) of all
classes of shares. Ownership of shares is determined with reference to
constructive ownership provisions which attribute ownership between
corporations and their five-percent or more shareholders, partnerships
and their partners, and trusts and their beneficiaries, and between
certain members of a family. In the case of an acquisition by a
partnership, each partner shall be treated as owning or
Board of Directors
June 11, 2002
Page 5
acquiring any stock owned or acquired, as the case may be, by the
partnership in accordance with that partner's interest in the
partnership.
(c) Buyer has no plan or intention to sell or otherwise dispose of any of
the assets of Company acquired in the transaction, except for
dispositions made in the ordinary course of business or transfers
described in Section 368(a)(2)(C). (Unless otherwise stated, all
"Section" and "Treas. Reg." references herein are to the Internal
Revenue Code of 1986, as amended, and the regulations thereunder.)
(d) The liabilities of Company assumed by Buyer and the liabilities to which
the transferred assets of Company are subject were incurred by Company in
the ordinary course of its business.
(e) Following the Merger, Buyer will continue the historical business of
Company or use a significant portion of the historic business assets of
Company in a business.
(f) Buyer, Company, and the shareholders of Company will pay their respective
expenses, if any, incurred in connection with the Merger.
(g) No inter-corporate indebtedness exists between Buyer and Company that was
issued, acquired, or will be settled at a discount.
(h) No two parties to the Merger are investment companies as defined in
Section 368(a)(2)(F)(iii) and (iv).
(i) On the date of the Merger, the fair market value of the assets of Company
transferred to Buyer will equal or exceed the sum of the liabilities
assumed by Buyer, plus the amount of liabilities, if any, to which the
transferred assets are subject.
(j) No event has occurred which made the poison pill rights exercisable.
(k) Company is not under the jurisdiction of a court in a Title 11 or similar
case within the meaning of Section 368(a)(3)(A).
(l) None of the compensation received by any shareholder-employees of Company
will be separate consideration for, or allocable to, any of their shares
of Company Common Stock; none of the shares of Buyer Common Stock
received by any shareholder-employee of Company will be separate
consideration for, or allocable to, any employment agreement (with
exception of the 15,000 options that will be
Board of Directors
June 11, 2002
Page 6
received by the president) and the compensation paid to any shareholder-
employees of Company will be for services actually rendered and will be
commensurate with amounts paid to third parties bargaining at arm's
length for similar services.
(m) The distribution of cash proceeds to Company shareholders in lieu of
fractional shares of Buyer will be made solely for the purpose of
avoiding the expense and inconvenience to Buyer of issuing fractional
shares and does not represent separately bargained for consideration.
The total cash consideration that will be paid in the transaction to
Company shareholders instead of issuing fractional shares of Buyer
will not exceed one percent of the total consideration that will be
issued in the transaction to Company shareholders in exchange for
their shares of Company. The fractional share interests of each
Company shareholder will be aggregated, and no Company shareholder
will receive cash in an amount equal to or greater than the value of
one full share of Buyer Common Stock.
(n) Buyer Common Stock issued pursuant to the Merger will represent at least
40% of the value of the consideration received by Company shareholders
(including cash in lieu of fractional shares). This representation is
true even if the poison pill rights are not treated as part of the Buyer
Company Common Stock, but rather as other property.
(o) On both April 27, 1999 and the Effective Date, the exercise of the
poison pill rights is remote and speculative.
(a) The Merger is intended to qualify as a statutory merger under Tennessee
law.
Discussion
Classification as a Reorganization
Section 368(a)(1)(A) provides that the term "reorganization" includes a
statutory merger. The term statutory merger refers to a merger effected pursuant
to the corporate laws of the United States, a state or territory, or the
District of Columbia. Treasury Regulation Section 1.368-2(b).
Requisite to all reorganizations under Section 368(a)(1) are a (1) valid
business purpose; (2) continuity of the business enterprise under the modified
corporate form; and (3) continuity of interest in the corporation surviving the
merger. Regulation Section 1.368-1(b). The term "reorganization" does not
embrace the mere purchase by one corporation
Board of Directors
June 11, 2002
Page 7
of the properties of another. Regulation Section 1.368-2(a). These regulations
reflect well-developed judicial interpretation of the statutory definition of a
reorganization, the purpose of which is to exclude from the scope of the
reorganization provisions those transactions that are in fact sales.
Continuity of business enterprise requires that the transferee corporation
either continue the transferor corporation's historical business or use a
significant portion of the transferor corporation's historical business assets.
Regulation Section 1.368-1(d)(2). This will be satisfied in this transaction as
per representation "e" above.
The regulations under Section 368(a) do not establish the amount of qualifying
consideration necessary to satisfy the continuity of shareholder interest
requirement. However, the Service has promulgated a definite test as to the
requirement for purposes of obtaining a private letter ruling. Under Revenue
Procedure 77-37, 1977-2 C.B. 568, the continuity of interest requirement of
Regulation Section 1.368-1(b) is satisfied if:
There is continuing interest through stock ownership in the acquiring or
transferee corporation...on the part of the former shareholders of the
acquired or transferor corporation which is equal in value, as of the
effective date of the reorganization, to at least 50 percent of the value
of all the formerly outstanding stock of the acquired or transferor
corporation as of the same date. It is not necessary that each shareholder
of the acquired or transferor corporation receive in the exchange, stock
of the acquiring of transferor corporation...which is equal in value to at
least 50 percent of the value of his former stock interest in the acquired
or transferor corporation, so long as one or more of the shareholders of
the acquired or transferor corporation have a continuing interest through
stock ownership in the acquiring or transferor corporation...which is, in
the aggregate, equal in value to at least 50 percent of the value of all
of the formerly outstanding stock of the acquired or transferor
corporation.
The 50 percent definitive test of the revenue procedure does not as a matter of
law establish the amount of qualifying consideration necessary to meet the
continuity of interest requirement of Regulation Section 1.368-1(b). In other
words, the continuation of a capital stock ownership in the acquiring
corporation equal to less that 50 percent of the value of the stock of the
acquired corporation does not itself mark a discontinuity of interest. The
Supreme Court in John A. Nelson C. v. Helvering, 296 U.S. 374 (1935), 36-1
U.S.T.C. para 9019, held that there was a reorganization even though the
shareholders of the acquired corporation received less than half of their total
consideration in the form of stock of the acquiring corporation and received
nonvoting preferred stock. It is only necessary that the shareholders continue
to have a definite and substantial equity interest
Board of Directors
June 11, 2002
Page 8
in the assets of the acquiring corporation, Revenue Ruling 61-156, 1961-2 C.B.
62. This requirement should be met in this transaction per representation "n",
above.
The merger of Company with and into Buyer will constitute a reorganization
within the meaning of Section 368(a)(1)(A) provided that (1) the merger of
Company with and into Buyer qualifies as a statutory merger under the applicable
federal and state laws and is undertaken for a valid business purpose as stated
in the above facts; (2) after the transaction Buyer continues the historical
business of Company; and (3) Company shareholders exchange for Buyer Common
Stock an amount of the Company Common Stock meeting the continuity of
shareholder interest test. Buyer and Company will each be "a party to a
reorganization" within the meaning of Section 368(b). As discussed above, each
of the foregoing will be satisfied in this transaction.
Federal Income Tax Consequences to Exchanging Shareholders
Section 354(a)(1) provides that no gain or loss will be recognized if stock of a
corporation which is a party to reorganization is, pursuant to the plan or
reorganization, exchanged solely for stock of such corporation or of another
corporation which is a party to the reorganization. Section 356(a)(1) in
relevant part provides that, if money or other property is received in an
exchange to which Section 354 would otherwise apply, then gain, if any, to the
recipient will be recognized to the extent of the sum of the money and fair
market value of the property received. If the exchange has the effect of the
distribution of a dividend, then the amount of gain recognized that is not in
excess of each distributee shareholder's ratable share of the undistributed
earnings and profits of the acquired corporation will be treated as a dividend,
Section 356(a)(2). No loss will be recognized on the exchange, Section 356(c).
The payment of cash in lieu of fractional share interests of Buyer Common Stock
will be treated as if the fractional share interests of Buyer Common Stock were
distributed as part of the Merger to the Company shareholder and then redeemed
by Buyer. The cash payments will be treated as having been received as
distributions in full payment for the fractional share interests redeemed.
Section 302(a), Rev. Rul. 66-365, 1966-2 C.B.116 and Rev. Proc. 77-41, 1977-2
C.B. 574. The tax basis these Company common shareholders will have in their
newly received Buyer Common Stock (including the fractional shares of Buyer
Common Stock they are deemed to receive) will be the same as their tax basis in
the Company Common Stock immediately prior to the merger under section 358(a),
less the value of any other property received (not including the cash received
in lieu of fractional shares), plus any gain (including gain treated as a
dividend, but not gain associated with the fractional shares) that is recognized
on the exchange. Section 358(a).
Board of Directors
June 11, 2002
Page 9
Based on the Merger's qualification under Section 368(a)(1)(A), the Company
common shareholders will not recognize any gain or loss pursuant to Section
354(a)(1) on the receipt solely of Buyer Common Stock in exchange for their
Company Common Stock. The tax basis which these Company common shareholders will
have in their newly received Buyer Common Stock will be the same as their tax
basis in the Company Common Stock immediately prior to the merger under Section
358(a), less any cash received in lieu of fractional shares, plus any gain
recognized on the receipt of cash in lieu of fractional shares.
If the property received in an exchange (i.e., Buyer Common Stock) has the same
(i.e., carryover) basis as the property given up, then Section 1223(1) applies
to determine the holding period for the property received. Section 1223(1)
provides that the period during which the taxpayer held the property surrendered
in the exchange is added to the period he or she holds the property received in
the exchange in order to determine the holding period of the property received.
This tacking of the previous holding period applies only if the property
exchanged (i.e., Company Common Stock) was a capital asset in the taxpayer's
hands at the time of the exchange, Section 1223(1). The status of the property
as capital asset is determined under Section 1221, which defines "capital asset"
as any property of a taxpayer other than property within specified
classifications. As a general rule, stock of a corporation would be treated as a
capital asset under this section. Provided that his or her Company Common Stock
is a capital asset, then each Company shareholder will be able to include his or
her respective ownership period of the Company Common Stock in determining the
holding period of the Buyer Common Stock received in the proposed transaction.
Poison Pill Rights
The shares of Buyer Common Stock to be issued to the Company shareholders
entitle such shareholders to receive the poison pill rights which will become
exercisable upon the happening of future events as described above. An issue
with respect to the poison pill rights is whether the rights should be
considered separable from the Buyer Common Stock and therefore "other property"
within the meaning of Section 356(a) or rather as an attribute of the Buyer
Common Stock, that is, a right to a future dividend inseparable from the other
rights inherent in the stock and not personal to the shareholders.
Presently the Service has not published any direct authoritative position
regarding the treatment of poison pill rights in the context of a corporate
reorganization that can be cited as precedent. Nor are there any judicial
opinions specifically addressing poison pill rights in the context of a
corporate reorganization.
Board of Directors
June 11, 2002
Page 10
The only available guidance consists of Private Letter Rulings ("PLRs") that
address the shareholder tax consequences upon the receipt of capital stock
incorporating a poison pill rights plan in the context of a corporate
reorganization. Under Section 6110(j)(3), PLRs may not be used or cited as
precedent. If the Service issues further authority, such authority could be
prospective only in accordance with the provisions of Section 7805.
In PLR 8808081, the Service ruled that poison pill rights incorporated in the
terms of capital stock issued in a corporate reorganization constituted "other
property" within the meaning of Section 356(a). Accordingly, the filing held
that the acquired corporation's shareholders recognized gain, to the extent of
the fair market value of the poison pill rights, in the exchange for capital
stock of the acquiring corporation.
Subsequently, however, the Service reversed its position and ruled in PLR
8925087, PLR 8925088, PLR 9040069, PLR 9040042, PLR 9120006, and PLR 199904013
(among others) that poison pill rights did not constitute other property within
the meaning of Section 356(a).
Indirect support for the proposition that poison pill rights do not constitute
"other property" can also be found in Revenue Ruling 90-11, 1990-1 C.B. 10.
Although not in the context of a corporate reorganization, the Service concluded
that the initial issuance of poison pill rights is not a distribution of
property which would give rise to current tax to the shareholders. The terms of
the poison pill plan described in the ruling are comparable to the terms of the
Buyer plan. This ruling is a published ruling, and therefore, may be cited as
precedent. This published ruling indicates that the more recent private letter
rulings cited immediately above reflect the current thinking of the Service,
i.e., that poison pill rights do not constitute other property when associated
with stock received in a corporate reorganization. Should the Service
successfully maintain that the poison pill rights are other property, then gain,
if any, realized by a common shareholder receiving such rights would be
recognized to the extent of the fair market value of such rights.
Opinions
Based solely on the Documents, the above Facts and Representations and subject
to the Scope of the Opinions below, it is the opinion of KPMG that:
Federal Income Tax Consequences
Board of Directors
June 11, 2002
Page 11
(1) The Merger will constitute a reorganization within the meaning of Section
368(a).
(2) Company and Buyer will each be a party to the reorganization within the
meaning of Section 368(b).
(3) No gain or loss will be recognized by Buyer upon the receipt of the assets
of Company, a party to the reorganization, subject to its liabilities, in
exchange for cash and its common stock in the Merger. Section 1032(a);
Treas. Reg. Section 1.1032-1.
(4) No gain or loss will be recognized by U.S. shareholders of Company upon the
receipt of solely Buyer Common Stock (including any fractional share
interests which they are deemed to receive under opinion (8), below) in
exchange for their shares of Company Common Stock. Section 354(a)(1).
(5) Based on the discussion above under Poison Pill Rights, it appears
reasonable to conclude that the Buyer poison pill rights plan adopted April
27, 1999, should be treated as an attribute of the Buyer Common Stock, a
right that is inseparable from other rights inherent in the stock and does
not constitute other property received by the Company common shareholders
in exchange for their Company Common Stock. However, in view of the lack of
precedent, there can be no assurance that the Service will agree with this
conclusion. In the event that Service ultimately establishes that such
poison pill rights constitute other property, then the Company
shareholders, who realize gain on the exchange of their shares for Buyer
Common Stock, will recognize such gain to the extent of the value of the
poison pill rights received.
(6) The basis of a share of Buyer Common Stock received by a shareholder of
Company (including any fractional share interests which they are deemed to
receive under opinion (8), below) will be the same as the basis in the
Company Common Stock surrendered in the exchange therefore decreased by the
amount of money and value of other property (but not including cash
received in lieu of fractional shares received and increased by the amount
of any gain recognized (including gain treated as a dividend, but not gain
associated with the fractional shares)). Section 358(a)(1).
(7) The holding period of a share of Buyer Common Stock received by a
shareholder of Company (including any fractional share interests which they
are deemed to receive under opinion (8), below) will include the
shareholder's holding period of the Company Common Stock surrendered in
exchange therefore, provided that the
Board of Directors
June 11, 2002
Page 12
Company Common Stock is held as a capital asset in the hands of the
shareholder of Company on the date of the Merger. Section 1223(1).
(8) The payment of cash in lieu of fractional share interests of Buyer Common
Stock will be treated as if the fractional share interests of Buyer Common
Stock were distributed as part of the Merger to the Company shareholder and
then redeemed by Buyer. The cash payments will be treated as having been
received as distributions in full payment for the fractional share
interests redeemed as provided in Section 302(a). Rev. Rul. 66-365, 1966-2
C.B. 116 and Rev. Proc. 77-41, 1977-2 C.B. 574.
(9) No gain or loss will be recognized by Company upon the transfer of its
assets, subject to its liabilities, to Buyer in the Merger. Sections
357(a) and 361(a). The deemed distribution of qualified property by
Company to its shareholders will be nontaxable. Section 361(c). No gain
will be recognized upon the distribution of any other consideration
received from Buyer because such property will have a fair market value
tax basis. Section 358(a)(2).
(10) The basis of the assets of Company in the hands of Buyer will be the
same, in each instance, as the basis of such assets in the hands of
Company immediately prior to the Merger. Section 362(b).
(11) The holding period of the assets of Company in the hands of Buyer will
include, in each instance, the period during which such assets were
held by Company immediately prior to the Merger. Section 1223(2).
(12) For purposes of Section 381, Buyer will be the acquiring corporation in the
Merger. Treas. Reg. Section 1.381(a)-1(b)(2). Thus, subject to the
conditions and limitations specified in Sections 381, 382, 383, and 384,
and the regulations thereunder, Buyer will succeed to and take into account
the items of Company described in Section 381(c). Section 381(a) and Treas.
Reg. Section 1.381(a)-1.
Tennessee Corporate Excise (Income) Tax Consequences
It is our opinion that the State of Tennessee for income tax purposes will treat
the Merger in the same manner as treated by the Internal Revenue Service for
federal income tax purposes. Tenn. Code Ann.ss.67-4-2006(a).
Board of Directors
June 11, 2002
Page 13
In certain circumstances, Tennessee may apply a more stringent test in
determining the availability of certain net operating losses and credits
subsequent to a merger. Tenn. Code Ann.ss. 67-4-2006(c)(2),ss.
67-4-2006(c)(3),ss. 67-4-2009(7).
Scope of the Opinions
The opinions contained herein are based upon the facts, assumptions and
representations set forth in this letter, as well as the information contained
in the Documents. You represented to us that you have provided us with all facts
and circumstances that you know or have reason to know are pertinent to this
opinion letter. If any of these facts, assumptions or representations is not
entirely complete or accurate, it is imperative that we be informed immediately
in writing because the incompleteness or inaccuracy could cause us to change our
opinions.
Our advice in this opinion letter is limited to the conclusions specifically set
forth herein under the heading Opinions. KPMG expresses no opinion with respect
to any other federal, state, local, or foreign tax or legal aspect of the
transactions described herein. No inference should be drawn on any matter not
specifically opined on above.
In rendering our opinions, we are relying upon the relevant provisions of the
Internal Revenue Code of 1986, as amended, the Tennessee Code, the regulations
thereunder, and judicial and administrative interpretations thereof, all as in
effect on the date of this letter. These authorities are subject to change or
modification retroactively and/or prospectively and any such changes could
affect the validity or correctness of our opinion. We will not update our advice
for subsequent changes or modifications to the law and regulations or to the
judicial and administrative interpretations thereof, unless you separately
engage us to do so in writing after such subsequent change or modification.
These opinions are not binding on the Internal Revenue Service, any other tax
authority, or any court, and no assurance can be given that a position contrary
to that expressed herein will not be asserted by a tax authority and ultimately
sustained by a court.
Very truly yours,
KPMG LLP
/s/Thomas W. Avent, Jr.
Thomas W. Avent, Jr.
Partner-in-Charge, Southeast M&A Tax Practice