EXHIBIT 99.4
PLAN OF REORGANIZATION AND MERGER
By and Between
NATIONAL BANK OF COMMERCE
AND
FIRST FEDERAL BANK FOR SAVINGS
THIS PLAN OF REORGANIZATION AND MERGER (the "Bank Merger Agreement"),
dated as of the _______ day of February, 1999, by and between NATIONAL BANK
OF COMMERCE, a wholly owned national banking subsidiary of NBC CAPITAL
CORPORATION, and FIRST FEDERAL BANK FOR SAVINGS, a wholly owned federally
chartered savings bank subsidiary of FFBS BANCORP, INC., organized under
the laws of the United States.
RECITALS
WHEREAS, on the _____________ day of February, 1999, NBC Capital
Corporation, a Mississippi corporation ("NBC"), and FFBS Bancorp, Inc., a
Delaware corporation ("FFBS"), executed an Agreement and Plan of Merger
(the "Merger Agreement"), through which FFBS will be merged with and into
NBC (the "Parent Merger"); and
WHEREAS, First Federal Bank for Savings ("Thrift") is a wholly owned
subsidiary of FFBS, and National Bank of Commerce ("Bank") is a wholly
owned subsidiary of NBC; and
WHEREAS, the respective Boards of Directors deem the merger of Thrift with
and into Bank as provided herein (the "Bank Merger") advisable and in the
best interest of their respective corporations and shareholders; and
WHEREAS, the respective Boards of Directors of Bank and Thrift, by
resolutions duly adopted, have approved this Merger Agreement and the
contemplated Bank Merger; and
WHEREAS, Bank and Thrift respectively desire to have certain
representations made with respect to the Bank Merger.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties agree that Thrift shall be merged with and
into Bank, and that the terms and conditions of the Bank Merger and the
method of carrying the Bank Merger into effect and certain other provisions
relating thereto shall be as hereinafter set forth.
ARTICLE I
1.1 The Bank Merger. In accordance with the provisions of this Bank
Merger Agreement and the laws of the United States, and after the Effective
Time of the Parent Merger (as defined in the Parent Merger Agreement) (the
"Effective Time"), Thrift shall be merged with and into Bank under the
charter of Bank. The Bank Merger shall be consummated (i) upon notice to
the Office of Thrift Supervision of the Department of the Treasury of The
United States ("OTS") pursuant to 12 C.F.R. 563.22(b); (ii) at the time
specified in the Certificate Approving Bank Merger issued by the Office of
the Comptroller of the Currency ("OCC"); and (iii) shall occur after the
Parent Merger pursuant to 12 U.S.C. Section 215c, 1815(d)(3) and 1828(c).
1.2 Surviving Bank. Bank shall continue to exist under the laws of the
United States as a wholly owned subsidiary of NBC. At the Effective Time,
the separate existence and organization of Thrift shall cease. Bank will
continue to operate as a national banking association titled National Bank
of Commerce with its principal office located at 000 Xxxx Xxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxx, 00000, and at the legally established branches of
Bank and Thrift.
1.3 Capital Structure. Upon consummation of the Bank Merger, each share
of common stock of Thrift shall be canceled, and no cash, securities or
other property shall be issued in the Bank Merger in respect thereof.
As of the time of the Bank Merger, the amount of capital stock of Bank
shall be $1,200,000 divided into 1,200,000 shares of common stock, each of
$1.00 par value, and shall have a surplus determined as of June 30, 1998
of $33,000,000 and undivided profits, including capital reserves of
$27,809,000, adjusted, however, for normal earnings and expenses between
June 30, 1998 and the date of the Bank Merger.
1.4 Effect of the Bank Merger; Tax Consequences. All assets of Thrift as
they exist at the Effective Time, shall pass to and vest in the Bank
without any conveyance or other transfer; and Bank shall be responsible for
all of the liabilities of Bank and Thrift of every kind and description.
For federal income tax purposes, the Bank Merger shall constitute a
tax-free reorganization pursuant to Section 368 of the Internal Revenue
Code of 1986, as amended (the "Code"), and the Bank Merger shall
constitute a "Plan of Reorganization" for purposes of the Rules and
Regulations governing Code Section 368.
1.5 Directors and Officers. After the Bank Merger, the present officers
of Bank together with such present officers of Thrift who may be duly
appointed as additional officers shall serve as the officers of the Bank,
and shall serve in such capacities until the next annual meeting or until
such time as their successors have been elected and have been qualified.
The directors of Bank, immediately prior to the Effective Time shall be,
from and after the Effective Time, the directors of the Surviving
Corporation, and two presently serving directors of FFBS shall be appointed
and become directors of Bank.
1.6 Articles of Association; Bylaws. After the Bank Merger, the Articles
of Association of Bank shall be the Articles of Association of the Bank.
The Bylaws of Bank, as in effect immediately prior to the Bank Merger,
shall be the Bylaws of the Surviving Bank until amended as therein
provided.
1.7 Dividends and Conduct of Business. To the extent permitted by the
Merger Agreement, Bank and Thrift may each continue to declare and pay
dividends to their respective shareholders and may dispose of any assets in
any manner in the normal course of business and for adequate value.
1.8 Liquidation Account. The liquidation account established by the
Thrift pursuant to the plan of conversion adopted in connection with its
conversion from mutual to stock form shall, to the extent required by
applicable law, continue to be maintained by the Bank after the Effective
Time for the benefit of those persons and entities who were savings account
holders of the Thrift on the eligibility and supplemental eligibility
record dates for such conversion and who continue from time to time to have
rights therein. If required by the rules and regulations of the OTS, the
Bank shall amend its charter to specifically provide for the continuation
of the liquidation account previously established by Thrift.
ARTICLE II
Representations and Warranties of Bank and Thrift
2.1 Corporate Organization. Bank and Thrift are validly existing and in
good standing under the laws of the United States and have the power and
authority to own or lease all of their properties and assets and to carry
on their business as it is now being conducted.
2.2 Authority; No Violation. Bank and Thrift have the full corporate
power and authority to execute and deliver this Merger Agreement and to
consummate the transactions contemplated thereby. The execution and
delivery of this Bank Merger Agreement and the consummation of the
transactions contemplated will have been duly and validly approved by the
Boards of Directors of the Bank and Thrift and by the Boards of Directors
of NBC and FFBS as the sole shareholders of Bank and Thrift.
2.3 Consents and Approvals. The parties hereto will cooperate in the
preparation and filing of all documents necessary to obtain the consent and
approval of the OCC and such other filings, approvals or consents as may be
required by applicable federal and state laws or regulations.
2.4 Parent Merger. The Bank Merger and all provisions of this Bank
Merger Agreement are contingent upon appropriate shareholder and regulatory
approval of the Merger Agreement, and all necessary consents or permits
from all applicable regulatory authorities shall have been obtained prior
to consummation of the Bank Merger. This Bank Merger and the transactions
contemplated hereby shall have been approved by the OCC and all other
applicable federal and state authorities in a form acceptable to Bank and
Thrift.
ARTICLE III
Closing
3.1 Closing. Subject to the provisions contained herein and all
appropriate provisions of the Merger Agreement, the Closing of the Bank
Merger shall take place following the closing of the Parent Merger.
3.2 Termination. This Agreement shall automatically terminate upon the
termination of the Merger Agreement or on September 30, 1999, unless
extended in writing and upon the same terms and conditions as provided for
in the Merger Agreement.
3.3 Conditions. The consummation of the transactions contemplated herein
is expressly conditioned upon (a) the ratification and confirmation of the
contemplated transactions by the affirmative vote of the shareholders, (b)
the procurement of consents and approvals, including but not limited to the
approval of the OCC, and the satisfaction of all other requirements
prescribed by applicable law that are necessary for the consummation of the
transactions contemplated herein, and (c) no litigation or proceeding
initiated by any governmental authority shall be pending before any court
or agency which presents a claim to restrain, prohibit, or invalidate the
transactions contemplated herein and no order of any court or agency shall
restrain or prohibit the transactions contemplated herein.
ARTICLE IV
4.1 Incorporation by Reference. The Merger Agreement is hereby
incorporated by reference, and the parties hereto acknowledge that all
provisions of that document applicable to representations, warranties,
covenants, conditions, conduct of business, disclosures, termination and
closing contained in said Merger Agreement shall be binding upon and inure
to the benefit of the parties hereto.
IN WITNESS WHEREOF, the Boards of Directors of Bank and Thrift have
approved this Merger Agreement and directed the authorized signatures and
seal of each respective corporation to be set hereunto by its Chairman of
the Board and attested to by a duly authorized officer, and the Boards of
Directors of Bank and Thrift have caused this Merger Agreement to be
executed by their duly authorized officers, all as of the day and year
first above written.
FIRST FEDERAL BANK FOR SAVINGS
(S E A L)
BY: _________________________________
ATTEST:
________________________________
SECRETARY
NATIONAL BANK OF COMMERCE
(S E A L)
BY: __________________________________
ATTEST:
________________________________
SECRETARY
