Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
UNION PLANTERS CORPORATION
AND
REGIONS FINANCIAL CORPORATION
DATED AS OF JANUARY 22, 2004
TABLE OF CONTENTS
PAGE
Parties...................................................................... 1
RECITALS..................................................................... 1
Article 1 TERMS OF FIRST STEP MERGER........................................ 1
1.1 First Step Merger.............................................. 1
1.2 First Effective Time........................................... 1
1.3 Conversion of Regions Common Stock............................. 2
1.4 Cancellation of Newco Common Stock............................. 3
1.5 Cancellation of Shares Held by Union Planters or Regions....... 3
1.6 Regions Stock Options and Other Equity-Based Awards............ 3
1.7 Organizational Documents of Surviving Corporation.............. 5
Article 2 TERMS OF SECOND STEP MERGER....................................... 5
2.1 Second Step Merger............................................. 5
2.2 Time and Place of Closing...................................... 5
2.3 Effective Time................................................. 5
2.4 Conversion of Union Planters Common Stock...................... 6
2.5 Effects on Common Stock........................................ 6
2.6 Union Planters Stock Options and Other Equity-Based Awards..... 7
Article 3 EXCHANGE OF SHARES................................................ 8
3.1 Exchange Procedures............................................ 8
3.2 Rights of Holders.............................................. 10
Article 4 REPRESENTATIONS AND WARRANTIES.................................... 10
4.1 Disclosure Letters............................................. 10
4.2 Standards...................................................... 11
4.3 Representations and Warranties of the Parties.................. 12
Article 5 COVENANTS AND ADDITIONAL AGREEMENTS............................... 23
5.1 Conduct of Business Prior to Effective Time.................... 23
5.2 Forbearances................................................... 23
5.3 Dividends...................................................... 25
5.4 Redemption of Union Planters Series E Preferred Stock.......... 26
5.5 Reasonable Best Efforts........................................ 26
5.6 Shareholders' and Stockholders' Approvals...................... 27
5.7 Registration Statement; Joint Proxy Statement/Prospectus....... 27
5.8 Listing of Newco Common Stock.................................. 28
5.9 Applications and Consents...................................... 28
5.10 Notification of Certain Matters................................ 29
5.11 Investigation and Confidentiality.............................. 29
5.12 Press Releases; Publicity...................................... 30
5.13 Acquisition Proposals.......................................... 30
5.14 Takeover Laws; No Rights Triggered............................. 31
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5.15 Exemption from Liability Under Section 16(b)................... 31
5.16 Agreement of Affiliates........................................ 32
5.17 Employee Benefits and Contracts................................ 32
5.18 Indemnification................................................ 33
5.19 Corporate Governance........................................... 35
5.20 Formation of Newco............................................. 37
5.21 Change of Method............................................... 37
5.22 Restructuring Efforts.......................................... 37
Article 6 CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE................. 37
6.1 Conditions to Obligations of Each Party........................ 37
6.2 Conditions to Obligations of Regions........................... 38
6.3 Conditions to Obligations of Union Planters.................... 39
Article 7 TERMINATION....................................................... 40
7.1 Termination.................................................... 40
7.2 Effect of Termination.......................................... 40
Article 8 MISCELLANEOUS..................................................... 41
8.1 Definitions.................................................... 41
8.2 Non-Survival of Representations and Covenants.................. 50
8.3 Expenses....................................................... 50
8.4 Termination Fee................................................ 50
8.5 Entire Agreement............................................... 51
8.6 Amendments..................................................... 52
8.7 Waivers........................................................ 52
8.8 Assignment..................................................... 52
8.9 Notices........................................................ 52
8.10 Governing Law.................................................. 53
8.11 Counterparts................................................... 53
8.12 Captions....................................................... 53
8.13 Interpretations................................................ 54
8.14 Severability................................................... 54
8.15 Waiver of Jury Trial........................................... 54
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LIST OF EXHIBITS
EXHIBIT DESCRIPTION
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1. Amendment to Union Planters Rights Plan (Section 3.3(b)(iii))
2-A. Form of Union Planters Affiliate Letter (Section 5.16)
2-B. Form of Regions Affiliate Letter (Section 5.16)
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and
entered into as of January 22, 2004, by and between UNION PLANTERS CORPORATION,
a Tennessee corporation ("Union Planters"), and REGIONS FINANCIAL CORPORATION, a
Delaware corporation ("Regions").
RECITALS
A. APPROVALS. The Boards of Directors of Union Planters and
Regions have determined that the transactions described herein are consistent
with, and will further, their respective business strategies and goals, and are
in the best interests of Union Planters and Regions, respectively, and their
respective shareholders and stockholders.
B. THE MERGER. This Agreement provides for a strategic business
combination through the merger of Regions with and into a newly-formed
Subsidiary of Regions and Union Planters to be organized under Delaware law
("Newco") with Newco as the surviving corporation, followed immediately
thereafter by the merger of Union Planters with and into Newco with Newco as the
surviving corporation.
C. INTENTION OF THE PARTIES. It is the intention of the Parties
that the First Step Merger and the Second Step Merger, for federal income Tax
purposes shall each qualify as a "reorganization" within the meaning of Section
368(a) of the Internal Revenue Code and that this Agreement shall constitute a
"plan of reorganization" for purposes of Sections 354 and 361 of the Internal
Revenue Code.
D. DEFINED TERMS. Certain capitalized terms used in this
Agreement are defined in Section 8.1 of this Agreement.
NOW, THEREFORE, in consideration of the above and the mutual
warranties, representations, covenants, and agreements set forth herein, and
intending to be legally bound hereby, the Parties agree as follows:
ARTICLE 1
TERMS OF FIRST STEP MERGER
1.1 FIRST STEP MERGER. Subject to the terms and conditions of this
Agreement, at the First Effective Time, Regions shall be merged with and into
Newco in accordance with the provisions of Section 251 of the DGCL (the "First
Step Merger"). Newco shall be the surviving corporation in the First Step Merger
and shall continue to be governed by the laws of the State of Delaware. Upon
consummation of the First Step Merger, the separate corporate existence of
Regions shall cease.
1.2 FIRST EFFECTIVE TIME. Subject to the terms and conditions of
this Agreement, on or before the Closing Date, the Parties will cause articles
of merger to be filed with the Secretary of State of the State of Delaware (the
"Delaware Secretary") as provided in Section 251 of the DGCL to effect the First
Step Merger. The First Step Merger shall take effect when such articles of
merger are filed, or at such other time as may be specified therein (the "First
Effective Time").
Subject to the terms and conditions hereof, unless otherwise mutually agreed
upon by the duly authorized officers of each Party, the Parties shall cause the
First Effective Time to occur on the fifth business day following the date on
which satisfaction or waiver of the last of the conditions set forth in Article
6 has occurred (other than those conditions that by their nature are to be
satisfied at the Closing, but subject to the fulfillment or waiver of those
conditions), or such earlier date mutually agreed upon by the Parties.
1.3 CONVERSION OF REGIONS COMMON STOCK. At the First Effective
Time, in each case subject to Sections 1.3(c) and 1.5, by virtue of the First
Step Merger and without any action on the part of the Parties, Newco or the
holder of any of the following securities:
(a) Each share of Regions Common Stock that is
Outstanding immediately prior to the First Effective Time (other than
shares of Regions Common Stock held by either Party, any of their
respective Subsidiaries or Newco (in each case other than in a
fiduciary or agency capacity or as a result of debts previously
contracted)) shall be converted into the right to receive the number of
shares of Newco Common Stock equal to the Exchange Ratio.
(b) All shares of Regions Common Stock converted
pursuant to this Section 1.3 shall no longer be outstanding and shall
automatically be cancelled and retired and shall cease to exist as of
the First Effective Time, and each certificate previously representing
any such shares of Regions Common Stock (the "Old Regions
Certificates") shall cease to have any rights except it shall
thereafter represent the right to receive with respect to each
underlying share of Regions Common Stock (i) a certificate representing
the number of whole shares of Newco Common Stock into which the shares
of Regions Common Stock represented by such Old Regions Certificate
have been converted pursuant to this Section 1.3, (ii) in accordance
with Section 1.3(c), cash in lieu of fractional shares of Newco Common
Stock represented by such Old Regions Certificate which have been
converted pursuant to this Section 1.3, and (iii) any dividends or
distributions which the holder thereof has the right to receive
pursuant to Section 3.1(a).
(c) Notwithstanding any other provision of this
Agreement, each holder of shares of Regions Common Stock exchanged
pursuant to the First Step Merger who would otherwise have been
entitled to receive a fraction of a share of Newco Common Stock (after
taking into account all Old Regions Certificates delivered by such
holder) shall receive, in lieu thereof, cash (without interest and
rounded to the nearest cent) in an amount equal to such fractional part
of a share of Newco Common Stock (i) multiplied by the closing sale
price of Regions Common Stock on the NYSE Composite Transaction Tape on
the trading day immediately preceding the Closing Date as reported by
The Wall Street Journal or, if not reported therein, in another
authoritative source and (ii) divided by the Exchange Ratio.
(d) If, following the date of this Agreement and
prior to the First Effective Time, the outstanding shares of Regions
Common Stock or Union Planters Common Stock shall have been increased,
decreased, changed into or exchanged for a different number or kind of
shares or securities as a result of a reorganization,
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recapitalization, reclassification, stock dividend, stock split,
reverse stock split, or other similar change in capitalization, then an
appropriate and proportionate adjustment shall be made to the Exchange
Ratio.
1.4 CANCELLATION OF NEWCO COMMON STOCK. At and after the First
Effective Time, each share of Newco Common Stock issued and outstanding
immediately prior to the First Effective Time (other than any shares held by
Union Planters or its Subsidiaries) shall be cancelled and retired and shall
resume the status of authorized and unissued shares of Newco Common Stock, and
no shares of Newco Common Stock or other securities of Newco shall be issued in
respect thereof.
1.5 CANCELLATION OF SHARES HELD BY UNION PLANTERS OR REGIONS. Each
of the shares of Regions Common Stock held by either Party, any of their
respective Subsidiaries or Newco (in each case other than in a fiduciary or
agency capacity or as a result of debts previously contracted) shall be
cancelled and retired and shall cease to exist at the First Effective Time and
no consideration shall be issued in exchange therefor.
1.6 REGIONS STOCK OPTIONS AND OTHER EQUITY-BASED AWARDS.
(a) Each option to purchase shares of Regions Common
Stock (a "Regions Stock Option") granted under an equity compensation plan of
Regions (a "Regions Stock Plan"), whether vested or unvested, that is
outstanding and unexercised immediately prior to the First Effective Time shall
cease, at the First Effective Time, to represent a right to acquire shares of
Regions Common Stock and shall be converted at the First Effective Time, without
any action on the part of any holder of any Regions Stock Option, into an option
to purchase shares of Newco Common Stock (a "Newco Stock Option") on the same
terms and conditions (including any option reload features relating to any
Regions Stock Option outstanding on the date hereof or granted after the date
hereof in accordance with Section 5.2(b)) as were applicable under such Regions
Stock Option (but taking into account any changes thereto, including any
acceleration thereof, provided for in the relevant Regions Stock Plan, or in the
related award document by reason of the transactions contemplated hereby). The
number of shares of Newco Common Stock subject to each such Newco Stock Option
shall be equal to the number of shares of Regions Common Stock subject to each
such Regions Stock Option multiplied by the Exchange Ratio, rounded, if
necessary, to the nearest whole share of Newco Common Stock, and such Regions
Stock Option shall have an exercise price per share (rounded to the nearest
cent) equal to the per share exercise price specified in such Regions Stock
Option divided by the Exchange Ratio; provided that, in the case of any Regions
Stock Option to which Section 421 of the Internal Revenue Code applies as of the
First Effective Time (after taking into account the effect of any accelerated
vesting thereof, if applicable) by reason of its qualification under Section 422
or Section 423 of the Internal Revenue Code, the exercise price, the number of
shares of Newco Common Stock subject to such option and the terms and conditions
of exercise of such option shall be determined in a manner consistent with the
requirements of Section 424(a) of the Internal Revenue Code.
(b) At the First Effective Time, each Right consisting
of, based on or relating to shares of Regions Common Stock granted under an
Regions Stock Plan, other than Regions Stock Options (each, a "Regions
Stock-Based Award"), whether vested or unvested, contingent
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or accrued, which is outstanding immediately prior to the First Effective Time
shall cease, at the First Effective Time, to represent a Right with respect to
shares of Regions Common Stock and shall be converted without any action on the
part of any holder of a Right, at the First Effective Time, into a Right
consisting of, based on or relating to shares of Newco Common Stock (a "Newco
Stock-Based Award"), on the same terms and conditions as were applicable under
the Regions Stock-Based Awards (but taking into account any changes thereto,
including any acceleration thereof, provided for in the relevant Regions Stock
Plan or in the related award document by reason of the transactions contemplated
hereby). The number of shares of Newco Common Stock subject to each such Newco
Stock-Based Award shall be equal to the number of shares of Regions Common Stock
subject to the Regions Stock-Based Award multiplied by the Exchange Ratio,
rounded, if necessary, to the nearest whole share of Newco Common Stock and, if
applicable, such Newco Stock-Based Award shall have an exercise price per share
(rounded to the nearest cent) equal to the per share exercise price specified in
the Regions Stock Based Award divided by the Exchange Ratio. Any dividend
equivalents credited to the account of each holder of an Regions Stock-Based
Award as of the First Effective Time shall remain credited to such holder's
account immediately following the First Effective Time, subject to adjustment in
accordance with the foregoing (without duplication to the increase in dividend
announced by Regions on the date hereof).
(c) As soon as practicable after the First Effective
Time, Newco shall deliver to the holders of Regions Stock Options and Regions
Stock-Based Awards any required notices setting forth such holders' rights
pursuant to the relevant Regions Stock Plans and award documents and stating
that such Regions Stock Options and Regions Stock-Based Awards have been assumed
by Newco and shall continue in effect on the same terms and conditions (subject
to the adjustments required by this Section 1.6 after giving effect to the
Merger and the terms of the relevant Regions Stock Plans).
(d) Following the First Effective Time, Newco may
maintain the Regions Stock Plans for purposes of granting future awards to
individuals who were employees of Regions at the First Effective Time. If so,
the provisions of the Regions Stock Plans, including the respective terms of
such plans, will be unchanged, except that all Rights issued by Newco pursuant
to the Regions Stock Plans following the First Effective Time shall be Rights in
respect of Newco Common Stock, and the number of shares of Newco Common Stock
available for future issuance pursuant to each Regions Stock Plan following the
First Effective Time (the "Available Regions Stock Plan Shares") shall be equal
to the number of shares of Regions Common Stock so available immediately prior
to the First Effective Time, multiplied by the Exchange Ratio, rounded, if
necessary, to the nearest whole share of Newco Common Stock.
(e) Prior to the First Effective Time, Regions shall take
all necessary action and make all necessary arrangements for the adjustment of
Regions Stock Options and Regions Stock-Based Awards under this Section 1.6.
Newco shall reserve for future issuance a number of shares of Newco Common Stock
at least equal to the number of shares of Newco Common Stock that will be
subject to Newco Stock Options and Newco Stock-Based Awards as a result of the
actions contemplated by this Section 1.6, plus the number of Available Regions
Stock Plan Shares in the event that Newco maintains the Regions Stock Plans as
contemplated by this Section 1.6. As soon as practicable following the Effective
Time, Newco shall file a registration statement on Form S-8 or S-3, as the case
dictates (or any successor form, or if Form S-8 or S-3
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is not available, other appropriate forms), with respect to the shares of Newco
Common Stock subject to such Newco Stock Options and Newco Stock-Based Awards
(and the Available Regions Stock Plan Shares, as the case dictates) and shall
maintain the effectiveness of such registration statement or registration
statements (and maintain the current status of the prospectus or prospectuses
contained therein) for so long as such Newco Stock Options and Newco Stock-Based
Awards remain outstanding.
(f) Regions shall take such action as is necessary to
provide that as of no later than three business days prior to the Closing Date
no further shares of Regions Common Stock will be purchased under the Regions
Dividend Reinvestment Plan (the "Regions DRIP"); provided, that such cessation
of further purchases following the Closing Date shall be conditioned upon the
consummation of the Merger. Immediately prior to and effective as of the First
Effective Time and subject to the consummation of the Merger, Regions shall
terminate the Regions DRIP.
1.7 ORGANIZATIONAL DOCUMENTS OF NEWCO. The Organizational
Documents of Newco in effect at the First Effective Time shall be as previously
disclosed by Regions in its Disclosure Letter, with such changes thereto as
shall be mutually agreed upon by Regions and Union Planters, until thereafter
amended in accordance with applicable Law and Newco's Organizational Documents.
ARTICLE 2
TERMS OF SECOND STEP MERGER
2.1 SECOND STEP MERGER. Subject to the terms and conditions of
this Agreement, at the Effective Time, Union Planters shall be merged with and
into Newco in accordance with the provisions of Section 252 of the DGCL and
Section 102 of the TBCA (the "Second Step Merger" and, together with the First
Step Merger, the "Merger"). Newco shall be the surviving corporation in the
Second Step Merger and shall continue to be governed by the Laws of the State of
Delaware. Upon consummation of the Second Step Merger, the separate corporate
existence of Union Planters shall cease.
2.2 TIME AND PLACE OF CLOSING. The closings of the First Step
Merger and the Second Step Merger (the "Closing") shall take place sequentially
(with the Second Step Merger occurring immediately after the First Step Merger),
on the same day, at such time and place as Regions and Union Planters shall
agree, on the date when the First Effective Time and the Effective Time (as
defined in Section 2.3) is to occur (the "Closing Date"). The parties shall
coordinate filing to ensure the timing of the foregoing.
2.3 EFFECTIVE TIME. Subject to the terms and conditions of this
Agreement, on or before the Closing Date, the Parties will cause articles of
merger to be filed with the Delaware Secretary as provided in Section 251 of the
DGCL and with the Secretary of State of the State of Tennessee (the "Tennessee
Secretary") as provided in Section 102 of the TBCA to effect the Second Step
Merger. The Second Step Merger shall take effect when such articles of merger
are filed, or at such other time as may be specified therein (the "Effective
Time").
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2.4 CONVERSION OF UNION PLANTERS COMMON STOCK. At the Effective
Time, in each case subject to Section 2.5, by virtue of the Second Step Merger
and without any action on the part of the Parties, Newco or the holder of any of
the following securities:
(a) Each share of Union Planters Common Stock
(including the Union Planters Shareholder Rights) that is Outstanding
immediately prior to the Effective Time (other than shares of Union
Planters Common Stock held by either Party, any of their respective
Subsidiaries or Newco (in each case other than in a fiduciary or agency
capacity or as a result of debts previously contracted)) shall be
converted into the right to receive one share of Newco Common Stock.
(b) All shares of Union Planters Common Stock
converted pursuant to this Section 2.4 shall no longer be outstanding
and shall automatically be cancelled and retired and shall cease to
exist as of the Effective Time, and each certificate previously
representing any such shares of Union Planters Common Stock (the "Old
Union Planters Certificates" and together with the Old Regions
Certificates, the "Old Certificates") shall cease to have any rights
except it shall thereafter represent the right to receive with respect
to each underlying share of Union Planters Common Stock (i) a
certificate representing the number of whole shares of Newco Common
Stock into which the shares of Union Planters Common Stock represented
by such Old Union Planters Certificate have been converted pursuant to
this Section 2.4, and (ii) any dividends or distributions which the
holder thereof has the right to receive pursuant to Section 3.1(a).
(c) If, following the date of this Agreement and
prior to the Effective Time, the outstanding shares of Regions Common
Stock or Union Planters Common Stock shall have, except as provided for
herein, been increased, decreased, changed into or exchanged for a
different number or kind of shares or securities as a result of a
reorganization, recapitalization, reclassification, stock dividend,
stock split, reverse stock split, or other similar change in
capitalization, then an appropriate and proportionate adjustment shall
be made to the number of shares of Newco Common Stock that each share
of Union Planters Common Stock shall represent the right to receive
upon conversion.
2.5 EFFECTS ON COMMON STOCK.
(a) At and after the Effective Time, each share of Newco
Common Stock issued and outstanding immediately prior to the Closing Date shall
remain an issued and outstanding share of common stock of the Surviving
Corporation and shall not be affected by the Second Step Merger; provided that
any shares of Newco Common Stock held by Union Planters or its Subsidiaries
prior to the Effective Time shall be cancelled and retired and shall resume the
status of authorized and unissued shares of Newco Common stock, and no shares of
Newco Common Stock or other securities of Newco shall be issued in respect
thereof.
(b) Each of the shares of Union Planters Common Stock
held by either Party, any of their respective Subsidiaries or Newco (in each
case other than in a fiduciary or agency capacity or as a result of debts
previously contracted) shall be cancelled and retired and shall cease to exist
at the Effective Time and no consideration shall be issued in exchange therefor.
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2.6 UNION PLANTERS STOCK OPTIONS AND OTHER EQUITY-BASED AWARDS.
(a) Each option to purchase shares of Union Planters
Common Stock (a "Union Planters Stock Option") granted under an equity
compensation plan of Union Planters (a "Union Planters Stock Plan"), whether
vested or unvested, that is outstanding and unexercised immediately prior to the
Effective Time shall cease, at the Effective Time, to represent a right to
acquire shares of Union Planters Common Stock and shall be converted at the
Effective Time, without any action on the part of any holder of any Union
Planters Stock Option, into a Newco Stock Option on the same terms and
conditions (including any option reload features relating to any Union Planters
Stock Option outstanding on the date hereof or granted after the date hereof in
accordance with Section 5.2(b)) as were applicable under such Union Planters
Stock Option (but taking into account any changes thereto, including any
acceleration thereof, provided for in the relevant Union Planters Stock Plan, or
in the related award document by reason of the transactions contemplated
hereby). The number of shares of Newco Common Stock subject to each such Newco
Stock Option shall be equal to the number of shares of Union Planters Common
Stock subject to each such Union Planters Stock Option, and such Newco Stock
Option shall have an exercise price per share equal to the per share exercise
price specified in such Union Planters Stock Option; provided that, in the case
of any Union Planters Stock Option to which Section 421 of the Internal Revenue
Code applies as of the First Effective Time (after taking into account the
effect of any accelerated vesting thereof, if applicable) by reason of its
qualification under Section 422 or Section 423 of the Internal Revenue Code, the
exercise price, the number of shares of Newco Common Stock subject to such
option and the terms and conditions of exercise of such option shall be
determined in a manner consistent with the requirements of Section 424(a) of the
Internal Revenue Code.
(b) At the Effective Time, each Right consisting of,
based on or relating to shares of Union Planters Common Stock granted under a
Union Planters Stock Plan, other than Union Planters Stock Options (each, a
"Union Planters Stock-Based Award"), whether vested or unvested, contingent or
accrued, which is outstanding immediately prior to the Effective Time shall
cease, at the Effective Time, to represent a Right with respect to shares of
Union Planters Common Stock and shall be converted without any action on the
part of any holder of a Right, at the Effective Time, into a Newco Stock-Based
Award, on the same terms and conditions as were applicable under the Union
Planters Stock-Based Awards (but taking into account any changes thereto,
including any acceleration thereof, provided for in the relevant Union Planters
Stock Plan or in the related award document by reason of the transactions
contemplated hereby). The number of shares of Newco Common Stock subject to each
such Newco Stock-Based Award shall be equal to the number of shares of Union
Planters Common Stock subject to the Union Planters Stock-Based Award. Any
dividend equivalents credited to the account of each holder of a Union Planters
Stock-Based Award as of the Effective Time shall remain credited to such
holder's account immediately following the Effective Time, subject to adjustment
in accordance with the foregoing.
(c) As soon as practicable after the Effective Time,
Newco shall deliver to the holders of Union Planters Stock Options and Union
Planters Stock-Based Awards any required notices setting forth such holders'
rights pursuant to the relevant Union Planters Stock Plans and award documents
and stating that such Union Planters Stock Options and Union Planters
Stock-Based Awards have been assumed by Newco and shall continue in effect on
the same terms and
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conditions (subject to the adjustments required by this Section 2.6 after giving
effect to the Merger and the terms of the relevant Union Planters Stock Plans).
(d) Following the Effective Time, Newco may maintain the
Union Planters Stock Plans for purposes of granting future awards to individuals
who were employees of Union Planters at the Effective Time. If so, the
provisions of the Union Planters Stock Plans, including the respective terms of
such plans, will be unchanged, except that all Rights issued by Newco pursuant
to the Union Planters Stock Plans following the Effective Time shall be Rights
in respect of Newco Common Stock, and the number of shares of Newco Common Stock
available for future issuance pursuant to each Union Planters Stock Plan
following the Effective Time (the "Available Union Planters Stock Plan Shares")
shall be equal to the number of shares of Union Planters Common Stock so
available immediately prior to the Effective Time.
(e) Prior to the Effective Time, Union Planters shall
take all necessary action for the adjustment of Union Planters Stock Options and
Union Planters Stock-Based Awards under this Section 2.6. Newco shall reserve
for future issuance a number of shares of Newco Common Stock at least equal to
the number of shares of Newco Common Stock that will be subject to Newco Stock
Options and Newco Stock-Based Awards as a result of the actions contemplated by
this Section 2.6, plus the number of Available Union Planters Stock Plan Shares
in the event that Newco maintains the Union Planters Stock Plans as contemplated
by this Section 2.6. As soon as practicable following the Effective Time, Newco
shall file a registration statement on Form S-8 or S-3, as the case dictates (or
any successor form, or if Form S-8 or S-3 is not available, other appropriate
forms), with respect to the shares of Newco Common Stock subject to such Newco
Stock Options and Newco Stock-Based Awards (and the Available Union Planters
Stock Plan Shares, as the case dictates) and shall maintain the effectiveness of
such registration statement or registration statements (and maintain the current
status of the prospectus or prospectuses contained therein) for so long as such
Newco Stock Options and Newco Stock-Based Awards remain outstanding.
(f) Union Planters shall take such action as is necessary
to provide that as of no later than three business days prior to the Closing
Date no further shares of Union Planters Common Stock will be purchased under
the Union Planters Dividend Reinvestment Plan (the "Union Planters DRIP");
provided, that such cessation of further purchases following the Closing Date
shall be conditioned upon the consummation of the Merger. Immediately prior to
and effective as of the First Effective Time and subject to the consummation of
the Merger, Union Planters shall terminate the Union Planters DRIP.
ARTICLE 3
EXCHANGE OF SHARES
3.1 EXCHANGE PROCEDURES.
(a) At or prior to the First Effective Time, Newco shall
deposit, or shall cause to be deposited, with the Exchange Agent, for the
benefit of the holders of Old Certificates, for exchange in accordance with
Article 1 and Article 2 and this Article 3, certificates representing Newco
Common Stock ("New Certificates") (together with any dividends or distributions
with respect thereto and any cash to be paid hereunder in lieu of fractional
shares of Newco Common
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Stock (without any interest thereon), the "Exchange Fund") to be paid pursuant
to Article 1 and Article 2 and this Article 3 in exchange for outstanding shares
of Union Planters Common Stock and Regions Common Stock.
(b) As promptly as practicable after the Effective Time
and the First Effective Time, respectively, Newco shall send or cause to be sent
to each former holder of record of shares of Union Planters Common Stock and
Regions Common Stock immediately prior to the Effective Time and the First
Effective Time, respectively (each, a "Holder"), transmittal materials for use
in exchanging such Holder's Old Certificates for the consideration set forth in
Article 1 and Article 2 (which shall specify that delivery shall be effected,
and risk of loss and title to the certificates theretofore representing such
shares of Union Planters Common Stock and Regions Common Stock shall pass, only
upon proper delivery of such certificates to the Exchange Agent). Newco shall
cause the New Certificates for shares of Newco Common Stock into which shares of
a Holder's Union Planters Common Stock or Regions Common Stock, as the case may
be, are converted at the Effective Time or dividends or distributions which such
Person shall be entitled to receive and any fractional share interests (in the
case of Regions Holders only), to be delivered to such Person upon delivery to
the Exchange Agent of Old Certificates representing such shares of Union
Planters Common Stock or Regions Common Stock, as the case may be, together with
the transmittal materials, duly executed and completed in accordance with the
instructions thereto. No interest will accrue or be paid on any such cash to be
paid pursuant to Article 1 and Article 2 and this Article 3 upon such delivery.
If any New Certificate is to be issued or any cash payment is to be made in a
name other than that in which the Old Certificate surrendered in exchange
therefor is registered, it shall be a condition of such exchange that the Person
requesting such exchange shall pay any transfer or other Taxes required by
reason of the issuance of such New Certificate or the making of such cash
payment in a name other than that of the registered Holder of the Old
Certificate surrendered, or shall establish to the satisfaction of Newco and the
Exchange Agent that any such Taxes have been paid or are not applicable. Any
Person who the Parties reasonably believe to be an "affiliate" of Union Planters
or Regions for purposes of Rule 145 of the 1933 Act shall not be entitled to
receive any New Certificate or payment pursuant to Article 1 or Article 2 or
this Article 3 until such Person shall have duly executed and delivered an
appropriate agreement as described in Section 5.16.
(c) Notwithstanding the foregoing, none of the Exchange
Agent, any of the Parties or any of their respective Subsidiaries shall be
liable to any former Holder of Union Planters Common Stock or Regions Common
Stock for any amount properly delivered to a public official pursuant to
applicable abandoned property, escheat or similar Laws.
(d) If any Old Certificate shall have been lost, stolen
or destroyed, upon the making of an affidavit of that fact by the Person
claiming such Old Certificate to be lost, stolen or destroyed and, if required
by Newco or the Exchange Agent, the posting by such Person of a bond in such
reasonable amount as Newco or the Exchange Agent may direct as indemnity against
any claim that may be made against it with respect to such Old Certificate,
Newco or the Exchange Agent shall, in exchange for the shares of Union Planters
Common Stock or Regions Common Stock represented by such lost, stolen or
destroyed Old Certificate, issue or cause to be issued a New Certificate and pay
or cause to be paid the amounts, if any, deliverable in respect to the shares of
Union Planters Common Stock or Regions Common Stock, as the case may be,
formerly represented by such Old Certificate pursuant to this Agreement.
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(e) Any portion of the Exchange Fund that remains
unclaimed by the Holders of Union Planters and Regions for six months after the
Effective Time shall be returned to Newco (together with any dividends or
earnings in respect thereof). Any Holders of Union Planters or Regions who have
not theretofore complied with this Article 3 shall thereafter be entitled to
look only to Newco, and only as a general creditor thereof, for payment of the
consideration deliverable in respect of each share of Union Planters Common
Stock or Regions Common Stock such Holder holds as determined pursuant to this
Agreement, in each case, without any interest thereon.
3.2 RIGHTS OF HOLDERS. At the Effective Time, the stock transfer
books of Union Planters and Regions shall be closed and no transfer by any
Holder shall thereafter be made or recognized. Until surrendered for exchange in
accordance with the provisions of Section 3.1, each Old Certificate (other than
shares to be cancelled pursuant to Section 1.5) shall from and after the
Effective Time or the First Effective Time, as the case may be, represent for
all purposes only the right to receive the consideration provided in Sections
1.3 and 2.4, as the case may be, and any dividends or any other distributions
with a record date prior to the Effective Time which have been declared or made
by Union Planters in respect of such shares of Union Planters Common Stock or
Regions in respect of Regions Common Stock in accordance with the terms of this
Agreement and which remain unpaid at the Effective Time. To the extent permitted
by Law, Holders shall be entitled to vote after the Effective Time at any
meeting of Newco stockholders the number of whole shares of Newco Common Stock
into which their respective shares of Union Planters Common Stock or Regions
Common Stock, as the case may be, are converted, regardless of whether such
Holders have exchanged their certificates representing Union Planters Common
Stock or Regions Common Stock, as the case may be, for New Certificates
representing Newco Common Stock in accordance with the provisions of this
Agreement, but beginning 30 days after the Effective Time no such Holder shall
be entitled to vote on any matter until such Holder surrenders such Old
Certificate for exchange as provided in Section 3.1. Whenever a dividend or
other distribution is declared by Newco on Newco Common Stock, the record date
for which is at or after the Effective Time, the declaration shall include
dividends or other distributions on all shares of Newco Common Stock issuable
pursuant to this Agreement, but beginning 30 days after the Effective Time no
dividend or other distribution payable to the holders of record of Newco Common
Stock as of any time subsequent to the Effective Time shall be delivered to the
Holder of an Old Certificate until such Holder surrenders such Old Certificate
for exchange as provided in Section 3.1. However, upon surrender of the Old
Certificate, both the New Certificate, together with all such undelivered
dividends or other distributions (without interest) and any undelivered cash
payments to be paid for fractional share interests (without interest), shall be
delivered and paid with respect to each share represented by such New
Certificate.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1 DISCLOSURE LETTERS. Prior to the execution and delivery of
this Agreement, each Party has delivered to the other Party a letter (its
"Disclosure Letter") setting forth, among other things, items the disclosure of
which is necessary or appropriate either in response to an express disclosure
requirement contained in a provision hereof or as an exception to one or more of
such Party's representations or warranties contained in Section 4.3 or to one or
more of its covenants
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contained in Article 5; provided, that (i) no such item is required to be set
forth in a Party's Disclosure Letter as an exception to any representation or
warranty of such Party if its absence would not result in the related
representation or warranty being deemed untrue or incorrect under the standard
established by Section 4.2, and (ii) the mere inclusion of an item in a Party's
Disclosure Letter as an exception to a representation or warranty shall not be
deemed an admission by that Party that such item represents a material exception
or fact, event or circumstance or that such item is reasonably likely to result
in a Material Adverse Effect with respect to such Party. Any disclosures made
with respect to a subsection of Section 4.3 shall be deemed to qualify (a) any
subsections of Section 4.3 specifically referenced or cross-referenced and (b)
other subsections of Section 4.3 to the extent it is clear (notwithstanding the
absence of a specific cross reference) from a reading of the disclosure that
such disclosure (i) applies to such other subsections and (ii) contains
sufficient detail to enable a reasonable Person to recognize the relevance of
such disclosure to such other subsections.
4.2 STANDARDS.
(a) No representation or warranty of any Party hereto or
Newco contained in Section 4.3 (other than the representations and warranties in
(i) Sections 4.3(b)(i), 4.3(c)(i) and (ii), and 4.3(r) which shall be true and
correct in all material respects with respect to it, and (ii) Sections
4.3(b)(ii)(A) and 4.3(e)(ii) which shall be true and correct in all respects)
shall be deemed untrue or incorrect, and no Party hereto or Newco shall be
deemed to have breached a representation or warranty, as a consequence of the
existence or absence of any fact, circumstance or event unless such fact,
circumstance or event, individually or taken together with all other facts,
circumstances or events inconsistent with any representation or warranty
contained in Section 4.3, has had or is reasonably likely to have a Material
Adverse Effect on such Party or Newco.
(b) The term "Material Adverse Effect," as used with
respect to a Party or Newco, means an effect which (i) is materially adverse to
the business, properties, financial condition or results of operations of such
Party and its Subsidiaries, or Newco, taken as a whole, or (ii) materially
impairs the ability of such Party or Newco to consummate the Merger and the
transactions contemplated hereby on a timely basis; provided that, in
determining whether a Material Adverse Effect has occurred, there shall be
excluded any effect to the extent attributable to or resulting from (A) any
changes in Laws, regulations or interpretations of Laws or regulations generally
affecting the banking, bank holding company or financial holding company
businesses, (B) any change in GAAP or regulatory accounting requirements,
generally affecting the banking, bank holding company or financial holding
company businesses, (C) events, conditions or trends in economic, business or
financial conditions generally affecting the banking, bank holding company or
financial holding company businesses specifically, (D) changes in national or
international political or social conditions including the engagement by the
United States in hostilities, whether or not pursuant to the declaration of a
national emergency or war, or the occurrence of any military or terrorist attack
upon or within the United States, or any of its territories, possessions or
diplomatic or consular offices or upon any military installation, equipment or
personnel of the United States, (E) the effects of the actions expressly
permitted or required by this Agreement or that are taken with the prior
informed written consent of the other Party and Newco in contemplation of the
transactions contemplated hereby, and (F) the announcement of this Agreement and
the transactions contemplated hereby.
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4.3 REPRESENTATIONS AND WARRANTIES OF THE PARTIES. Subject to and
giving effect to Sections 4.1 and 4.2 and except as set forth in the relevant
Disclosure Letter, Regions hereby represents and warrants to Union Planters and
Union Planters hereby represents and warrants to Regions, and Newco hereby
represents and warrants to Regions and Union Planters that:
(a) ORGANIZATION, STANDING, AND POWER; SUBSIDIARIES. It,
and each of its Subsidiaries, is duly organized, validly existing, and (to the
extent applicable) in good standing under the Laws of the jurisdiction in which
it is organized. It, and each of its Subsidiaries, has the requisite corporate
power and authority to own, lease, and operate its properties and assets and to
carry on its business as now conducted. It, and each of its Subsidiaries, is
duly qualified or licensed to do business and (to the extent applicable) in good
standing in the States of the United States and foreign jurisdictions where the
character of its assets or the nature or conduct of its business requires it to
be so qualified or licensed. It has made available to the other Party hereto a
complete and correct copy of its Organizational Documents, each as amended to
the date hereof and as in full force and effect as of the date hereof. A true
and complete list of its direct and indirect Subsidiaries as of the date hereof
is set forth in Section 4.3(a) of its Disclosure Letter.
(b) AUTHORITY; NO BREACH OF AGREEMENT.
(i) It has, and Newco will have, the corporate
power and authority necessary to execute, deliver, and perform its
obligations under this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery, and performance of this
Agreement, and the consummation of the transactions contemplated
hereby, including the Merger, by it, have been duly and validly
authorized by all necessary corporate action (including valid
authorization and unanimous adoption of this Agreement by its duly
constituted Board of Directors), subject only to the receipt of (A) in
the case of Union Planters, the approval of this Agreement by the
holders of a majority of the Outstanding shares of Union Planters
Common Stock (the "Union Planters Shareholder Approval"), (B) in the
case of Regions, approval of this Agreement by the holders of a
majority of the Outstanding shares of Regions Common Stock (the
"Regions Stockholder Approval") and (C) in the case of Newco, approval
of this Agreement and the transactions contemplated hereby by Union
Planters and Regions, as the sole stockholders of Newco (the "Newco
Stockholder Approval"). Subject to the Union Planters Shareholder
Approval in the case of Union Planters, the Regions Stockholder
Approval in the case of Regions, and the Newco Stockholder Approval in
the case of Newco and assuming due authorization, execution, and
delivery of this Agreement by the other Party and by Newco, this
Agreement represents a legal, valid, and binding obligation of it,
enforceable against it in accordance with its terms (except in all
cases as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, receivership, conservatorship, moratorium,
or similar Laws affecting the enforcement of creditors' rights
generally and except that the availability of the equitable remedy of
specific performance or injunctive relief is subject to the discretion
of the court before which any proceeding may be brought).
(ii) Neither the execution and delivery of this
Agreement by it, nor the consummation by it of the transactions
contemplated hereby, nor compliance by it with
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any of the provisions hereof, will (A) conflict with or result in a
breach or violation of any provision of its Organizational Documents,
(B) constitute or result in a Default under, or require any Consent
pursuant to, or result in the creation or acceleration of any Lien
(with or without the giving of notice, the lapse of time or both) on
any material asset of it or its Subsidiaries under, any Contract or
Permit of it or its Subsidiaries, or any change in the rights or
obligations under any Contract, or (C) subject to receipt of the
Regulatory Consents and the expiration of any waiting period required
by Law, violate any Law, Order or governmental license applicable to it
or its Subsidiaries or any of their respective material assets.
(iii) In the case of Union Planters only, it has
taken all action necessary or appropriate so that the entering into of
this Agreement, and the consummation of the transactions contemplated
hereby (individually or in conjunction with any other event), do not
and will not result in the ability of any Person to exercise any rights
under the Union Planters Rights Plan or enable or require the Union
Planters Shareholder Rights to separate from the shares of Union
Planters Common Stock to which they are attached or to be triggered or
become exercisable or unredeemable. No "Distribution Date" (as such
term is defined in the Union Planters Rights Plan) has occurred or will
occur as a result of the transactions contemplated hereby. Union
Planters has duly adopted an amendment to the Union Planters Rights
Plan substantially in the form attached hereto as Exhibit 1.
(iv) Other than in connection or compliance with
the provisions of the Securities Laws, and other than (A) the
Regulatory Consents, (B) notices to or filings with the Internal
Revenue Service or the Pension Benefit Guaranty Corporation (the
"PBGC") or both with respect to any Compensation and Benefit Plans, and
(C) as set forth in Section 4.3(b)(iv) of its Disclosure Letter, no
notice to, application or filing with, or Consent of, any Governmental
Authority is necessary in connection with the execution, delivery or
performance of this Agreement and the consummation by it of the Merger
and the other transactions contemplated by this Agreement.
(c) CAPITAL STOCK.
(i) In the case of Union Planters only, the
authorized capital stock of Union Planters consists of 300,000,000
shares of Union Planters Common Stock and 10,000,000 shares of Union
Planters Preferred Stock, of which, as of the date of this Agreement,
(A) 188,960,454 shares of Union Planters Common Stock were issued and
outstanding, (B) 389,910 shares of Union Planters Series E Preferred
Stock were issued and outstanding, and (C) no shares of Union Planters
Series F Preferred Stock were issued and outstanding, and not more than
211,094,923 shares of Union Planters Common Stock and no shares of
Union Planters Series E Preferred Stock will be issued and outstanding
immediately prior to the Effective Time. As of the date of this
Agreement, no more than 18,668,648 shares of Union Planters Common
Stock were subject to Union Planters Stock Options granted under Union
Planters Stock Plans. As of the date of this Agreement, there were no
more than 21,406,507 shares of Union Planters Common Stock subject to
outstanding Rights under the Union Planters Stock Plans. Except as set
forth in this Section 4.3(c)(i), or as contemplated by the Union
Planters Rights Plan, the Union Planters DRIP or as specifically set
forth in Section 4.3(c)(i) of
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Union Planters' Disclosure Letter (which shall set forth in detail
(including exercise prices) all outstanding (i) stock options, (ii)
shadow stock units and (iii) restricted stock and restricted stock
units under Union Planters Stock Plans), there are no shares of Union
Planters Capital Stock or other equity securities of Union Planters
outstanding and no outstanding Rights relating to the Union Planters
Capital Stock, and no Person has any Contract or any right or privilege
(whether pre-emptive or contractual) capable of becoming a Contract or
Right for the purchase, subscription or issuance of any securities of
Union Planters. All of the Outstanding shares of Union Planters Capital
Stock are duly and validly authorized, issued and outstanding and are
fully paid and nonassessable. None of the outstanding shares of Union
Planters Capital Stock has been issued in violation of any preemptive
or similar rights of the current or past shareholders of Union
Planters.
(ii) In the case of Regions only, the authorized
capital stock of Regions consists of 500,000,000 shares of Regions
Common Stock and 5,000,000 shares of Regions Preferred Stock, of which,
as of the date of this Agreement, (A) 221,967,484 shares of Regions
Common Stock were issued and outstanding, and (B) no shares of Regions
Preferred Stock were issued and outstanding, and not more than
241,981,028 shares of Regions Common Stock will be issued and
outstanding immediately prior to the First Effective Time. As of the
date of this Agreement, no more than 20,013,544 shares of Regions
Common Stock were subject to Regions Stock Options granted under the
Regions Stock Plans. As of the date of this Agreement, there were no
more than 20,013,544 shares of Regions Common Stock subject to
outstanding Rights under the Regions Stock Plans. Except as set forth
in this Section 4.3(c)(ii), or as specifically set forth in Section
4.3(c)(ii) of Regions' Disclosure Letter (which shall set forth in
detail (including exercise prices) all outstanding (i) stock options,
(ii) stock appreciation rights and (iii) restricted stock and
restricted stock units under Regions Stock Plans), there are no shares
of Regions Capital Stock or other equity securities of Regions
outstanding and no outstanding Rights relating to the Regions Capital
Stock, and no Person has any Contract or any right or privilege
(whether pre-emptive or contractual) capable of becoming a Contract or
Right for the purchase, subscription or issuance of any securities of
Regions. All of the Outstanding shares of Regions Capital Stock are
duly and validly authorized, issued and outstanding and are fully paid
and nonassessable. None of the outstanding shares of Regions Capital
Stock has been issued in violation of any preemptive or similar rights
of the current or past stockholders of Regions.
(iii) In the case of Newco only, the authorized
capital stock of Newco shall be as agreed by the Parties, of which, as
of the First Effective Time, 2 shares of Newco Common Stock will be
issued and outstanding and will be held equally by Regions and Union
Planters. The authorized capital stock of Newco immediately following
consummation of the First Step Merger (and prior to the Effective Time)
will be as set forth in the form of Newco Certificate of Incorporation.
No change in such capitalization will occur prior to the Effective Time
except as provided in or contemplated by this Agreement. At the
Effective Time, no capital stock of Newco (and no Rights to acquire any
such capital stock) will be outstanding, except as contemplated by this
Agreement.
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(iv) All the outstanding shares of capital stock
of each of its Subsidiaries owned by it or a Subsidiary of it have been
duly authorized and validly issued and are fully paid and (except, with
respect to bank Subsidiaries, as provided under applicable state Law)
nonassessable, and are owned by it or a Subsidiary of it free and clear
of all Liens or Rights. In the case of Newco only, Newco has, and will
have prior to the First Effective Time, no Subsidiaries or material
investments of any kind in any entity.
(v) In the case of Newco only, the shares of
Newco Common Stock to be issued in the Merger, when so issued in
accordance with this Agreement, will have been duly authorized and
validly issued and will be fully paid and nonassessable and not subject
to any preemptive rights.
(d) SEC FILINGS; FINANCIAL STATEMENTS.
(i) Each Party has filed and made available to
the other Party all SEC Documents required to be filed by it with the
SEC since December 31, 2000 (collectively, the "SEC Reports"). Its SEC
Reports, including the Financial Statements, exhibits and schedules
contained therein, (A) at the time filed, complied (and any SEC Reports
filed after the date of this Agreement will comply) in all material
respects with the applicable requirements of the Securities Laws, and
(B) at the time they were filed (or if amended or superseded by another
SEC Report filed prior to the date of this Agreement, then on the date
of such filing), did not (and any SEC Reports filed after the date of
this Agreement will not) contain any untrue statement of a material
fact or omit to state a material fact required to be stated in such SEC
Reports or necessary in order to make the statements made in such SEC
Reports, in light of the circumstances under which they were made, not
misleading.
(ii) Each of its Financial Statements contained
in its SEC Reports (including any SEC Reports filed after the date of
this Agreement) complied (or, in the case of SEC Reports filed after
the date of this Agreement, will comply) in all material respects with
the applicable requirements of the Securities Laws with respect
thereto, fairly presented (or, in the case of SEC Reports filed after
the date of this Agreement, will fairly present) the consolidated
financial position of it and its Subsidiaries as at the respective
dates and the consolidated results of its operations and cash flows for
the periods indicated, in each case in accordance with GAAP
consistently applied during the periods indicated, except in each case
as may be noted therein, and subject to normal year-end audit
adjustments and as permitted by Form 10-Q in the case of unaudited
Financial Statements.
(iii) Its 2003 earnings press release issued on
January 15, 2004 in the case of Union Planters and on January 16, 2004
in the case of Regions fairly presented the consolidated financial
position of it and its Subsidiaries as at the respective dates and the
consolidated results of its operations for the periods indicated, in
each case in accordance with GAAP consistently applied during the
periods indicated, and did not contain any untrue statement of a
material fact or omit to state a material fact required to
- 15 -
be stated therein or necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading.
(e) ABSENCE OF CERTAIN CHANGES OR EVENTS. Since September
30, 2003, except as disclosed in its SEC Reports filed prior to the date of this
Agreement, (i) it and its Subsidiaries have conducted their respective
businesses only in the ordinary course of such businesses and (ii) there have
been no events, changes, developments or occurrences which have had, or are
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on it.
(f) TAX MATTERS. All 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 has been granted
and has not expired, and all such filed returns are complete and accurate in all
material respects. It has made available to the other Party true and correct
copies of the United States federal income Tax Returns filed by it or its
Subsidiaries for each of the three most recent fiscal years ended on or before
December 31, 2002. Except as disclosed in its SEC Reports filed prior to the
date of this Agreement, all Taxes attributable to it or any of its Subsidiaries
that are or were due or payable (without regard to whether such Taxes have been
assessed) have been paid in full or have been adequately provided for on its
consolidated balance sheet and consolidated statement of earnings or income in
accordance with GAAP. As of the date of this Agreement and except as disclosed
in its SEC Reports filed prior to the date of this Agreement, there is no
outstanding audit examination, deficiency, refund or other Tax Litigation or
outstanding waivers or agreements extending the applicable statute of
limitations for the assessment or collection of any Taxes for any period with
respect to any Taxes of it or its Subsidiaries. All Taxes due with respect to
completed and settled examinations or concluded Litigation relating to it or any
of its Subsidiaries have been paid in full or have been recorded in accordance
with GAAP on its or its Subsidiaries' balance sheet and consolidated statement
of earnings or income. Neither it nor any of its Subsidiaries is a party to a
Tax sharing, indemnification or similar agreement or any agreement pursuant to
which it or any of its Subsidiaries has any obligation to any Person (other than
it or one of its Subsidiaries) with respect to Taxes. The proper and accurate
amounts have been withheld from all employees, creditors, or third parties (and
timely paid to the appropriate Governmental Authority or set aside in an account
for such purposes) for all periods through the Effective Time in compliance with
all Tax withholding provisions of applicable federal, state, local and foreign
Laws (including income, social security and employment Tax withholding for all
types of compensation). Neither it nor any of its Subsidiaries has been a party
to any distribution occurring during the last three years in which the parties
to such distribution treated the distribution as one to which Section 355 of the
Internal Revenue Code applied. Neither it nor any of its Subsidiaries is a party
to any "listed transaction" as defined in Treasury Regulation Section
1.6011-4(b)(2). No Liens for Taxes exist with respect to it or its Subsidiaries,
except for statutory Liens for Taxes not yet due and payable or that are being
contested in good faith and reserved for in accordance with GAAP.
(g) CERTAIN ACTIONS. Neither it nor any of its
Subsidiaries or any Affiliates thereof has taken or agreed to take any action,
and it has no knowledge of any fact or circumstance, that is reasonably likely
to (i) prevent the Merger from qualifying as a reorganization within the meaning
of Section 368(a) of the Internal Revenue Code, or
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(ii) materially impede or materially delay receipt of any Regulatory Consents.
To its knowledge, as of the date hereof, there exists no fact, circumstance, or
reason that would cause any Regulatory Consents not to be received in a timely
manner.
(h) ENVIRONMENTAL MATTERS. Except as described in the
Disclosure Letter: (i) no Hazardous Material is contained in or has been used at
or released from its Facilities other than in compliance with, and as would not
reasonably be expected to result in liability under, any Environmental Laws;
(ii) all Hazardous Materials used by it or stored on its Properties have been
disposed of in accordance with, and as would not reasonably be expected to
result in liability under, any Environmental Laws; (iii) neither it nor any of
its Subsidiaries is potentially liable as a responsible party under any
Environmental Law, including the federal Comprehensive Environmental Response,
Compensation and Liability Act, as amended ("CERCLA"), or state analog statute,
arising out of events occurring prior to the Effective Time; (iv) there have not
been in the past, and are not now, any Hazardous Materials that have been
released on or under or are migrating to or from the Facilities or any Property;
(v) there have not been in the past, and are not now, any underground tanks or
physical structures or vessels holding Hazardous Materials at, on or under any
Property including treatment or storage tanks, sumps, lagoons, basins, or water,
gas or oil xxxxx; (vi) there are no polychlorinated biphenyls ("PCBs")
deposited, stored, disposed of or located on any Property or Facilities or any
equipment on any Property containing PCBs at levels in excess of levels
permitted by law; (vii) it and its Subsidiaries and Affiliates are not subject
to any consent orders, decrees, notices of violation, injunctions, directives or
orders from any Governmental Authority or any indemnity or other agreement with
any third party relating to obligations, costs or liabilities arising under any
Environmental Law; (viii) the Facilities and its and its Subsidiaries'
activities and operations have at all times complied with all Environmental
Laws, (ix) it and its Subsidiaries have received no notice of any noncompliance
with, or liability under, any Environmental Laws regarding the Facilities or any
Property or its past or present operations and (x) no claims, notices,
administrative actions, information requests or suits are pending or, to its
knowledge, threatened relating to any actual or potential violation, liability
or obligation by it or any of its Subsidiaries with respect to any Environmental
Laws.
(i) COMPLIANCE WITH PERMITS, LAWS AND ORDERS.
(i) It and each of its Subsidiaries has in
effect all Permits and has made all filings, applications, and
registrations with Governmental Authorities that are required for it to
own, lease, or operate its material assets and to carry on its business
as now conducted and there has occurred no Default under any Permit
applicable to its business or employees conducting its business.
(ii) Neither it nor any of its Subsidiaries is in
Default under any Laws or Orders applicable to it, its business or
employees conducting its business. Each of its Subsidiaries that is an
insured depository institution has a Community Reinvestment Act rating
of "satisfactory" or better.
(iii) Since January 1, 2000, neither it nor any of
its Subsidiaries has received any notification or communication from
any Governmental Authority, (A) asserting that it or any of its
Subsidiaries is in Default under any Permits, Laws or
- 17 -
Orders, (B) threatening to revoke any Permits, (C) requiring it or any
of its Subsidiaries (x) to enter into or consent to the issuance of a
cease and desist order, formal agreement, directive, commitment or
memorandum of understanding, or (y) to adopt any resolution of its
Board of Directors or similar undertaking, which restricts the conduct
of its business, or relates to its capital adequacy, its credit or
reserve policies, its management, or the payment of dividends or any
other policy or procedure, or (D) threatening or contemplating
revocation or limitation of, or which would have the effect of revoking
or limiting, Federal Deposit Insurance Corporation ("FDIC") deposit
insurance, and neither it nor any of its Subsidiaries has received any
notice from a Governmental Authority that it is considering issuing any
of the foregoing.
(iv) There (A) is no unresolved violation,
criticism, or exception by any Governmental Authority with respect to
any report or statement relating to any examinations or inspections of
it or any of its Subsidiaries and (B) have been no formal or informal
inquiries by, or disagreements or disputes with, any Governmental
Authority with respect to its or any of its Subsidiaries' business,
operations, policies or procedures since January 1, 2000.
(v) There is no Order, circumstance or condition
relevant or applicable to it that would prevent, or is reasonably
likely to prevent, Newco from satisfying the criteria for "financial
holding company" status under the BHC Act after the First Effective
Time.
(j) LABOR RELATIONS. Neither it nor any of its
Subsidiaries is the subject of any Litigation asserting that it or any of its
Subsidiaries has committed an unfair labor practice (within the meaning of the
National Labor Relations Act or comparable state Law) or seeking to compel it or
any of its Subsidiaries to bargain with any labor organization as to wages or
conditions of employment, nor is it or any of its Subsidiaries a party to or
bound by any collective bargaining agreement, Contract, or other agreement or
understanding with a labor union or labor organization, nor is there any strike
or other labor dispute involving it or any of its Subsidiaries pending or, to
its knowledge, threatened, nor to its knowledge, is there any activity involving
it or any of its Subsidiaries' employees seeking to certify a collective
bargaining unit or engaging in any other organization activity.
(k) EMPLOYEE COMPENSATION AND BENEFIT PLANS.
(i) It has disclosed in Section 4.3(k) of its
Disclosure Letter, and has delivered or made available to the other
Party prior to the date of this Agreement correct and complete copies
of, all of its Compensation and Benefit Plans. Neither it nor any of
its Subsidiaries has an "obligation to contribute" (as defined in ERISA
Section 4212) nor have they ever had an obligation to contribute to a
"multiemployer plan" (as defined in ERISA Sections 4001(a)(3) and
3(37)(A)). Each "employee pension benefit plan," as defined in Section
3(2) of ERISA, that was ever maintained by it or any of its
Subsidiaries and that was intended to qualify under Section 401(a) of
the Internal Revenue Code, is disclosed as such in Section 4.3(k) of
its Disclosure Letter.
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(ii) It has delivered or made available to the
other Party prior to the date of this Agreement correct and complete
copies of the following documents: (A) all trust agreements or other
funding arrangements for its Compensation and Benefit Plans (including
insurance Contracts), and all amendments thereto (all such trust
agreements and other funding arrangements are disclosed in Section
4.3(k) of its Disclosure Letter), (B) with respect to any such
Compensation and Benefit Plans or amendments, the most recent
determination letters, and all material rulings, material opinion
letters, material information letters, or material advisory opinions
issued by the Internal Revenue Service, the United States Department of
Labor, or the PBGC after December 31, 1994, (C) annual reports or
returns, audited or unaudited financial statements, actuarial
valuations and reports, and summary annual reports prepared for any
Compensation and Benefit Plans with respect to the most recent plan
year, and (D) the most recent summary plan descriptions and any
material modifications thereto.
(iii) All of its Compensation and Benefit Plans
are in compliance with the applicable terms of ERISA, the Internal
Revenue Code, and any other applicable Laws. Except as disclosed in
Section 4.3(k) of its Disclosure Letter, each of its ERISA Plans which
is intended to be qualified under Section 401(a) of the Internal
Revenue Code has received a favorable determination letter from the
Internal Revenue Service covering all Tax Law changes prior to the
Economic Growth and Tax Relief Reconciliation Act of 2001 and, to its
knowledge, there are no circumstances likely to result in revocation of
any such favorable determination letter. Except as disclosed in Section
4.3(k) of its Disclosure Letter, each trust created under any of its
ERISA Plans has been determined to be exempt from Tax under Section
501(a) of the Internal Revenue Code and it is not aware of any
circumstance which will or could reasonably result in revocation of
such exemption. Any voluntary employees' beneficiary association within
the meaning of Section 501(c)(9) of the Internal Revenue Code which
provides benefits under a Compensation and Benefit Plan has (i)
received an opinion letter from the Internal Revenue Service
recognizing its exempt status under Section 501(c)(9) of the Internal
Revenue Code and (ii) filed a timely notice with the Internal Revenue
Service pursuant to Section 505(c) of the Internal Revenue Code, and it
is not aware of circumstances likely to result in the loss of such
exempt status under Section 501(c)(9) of the Internal Revenue Code.
There is no pending or, to its knowledge, threatened Litigation
relating to any of its ERISA Plans.
(iv) Neither it nor any of its Subsidiaries has
engaged in a transaction with respect to any of its Compensation and
Benefit Plans that, assuming the Taxable Period of such transaction
expired as of the date of this Agreement or the Effective Time, would
subject it or any of its Subsidiaries to a Tax or penalty imposed by
either Section 4975 of the Internal Revenue Code or Section 502(i) of
ERISA.
(v) Except as disclosed in Section 4.3(k) of its
Disclosure Letter, each of its Pension Plans had, as of the date of its
most recent actuarial valuation, assets measured at fair market value
at least equal to its "current liability," as that term is defined in
Section 302(d)(7) of ERISA. To its knowledge, since the date of the
most recent actuarial valuation, no event has occurred which would
adversely change any such funded status. None of its Pension Plans nor
any "single-employer plan," within the
- 19 -
meaning of Section 4001(a)(15) of ERISA, currently maintained by it or
any of its Subsidiaries, or the single-employer plan of any entity
which is considered one employer with it under Section 4001 of ERISA or
Section 414 of the Internal Revenue Code or Section 302 of ERISA
(whether or not waived) (an "ERISA Affiliate") has an "accumulated
funding deficiency" within the meaning of Section 412 of the Internal
Revenue Code or Section 302 of ERISA. All required contributions with
respect to any of its Pension Plans or any single-employer plan of any
of its ERISA Affiliates have been timely made and there is no lien, nor
is there expected to be a lien, under Internal Revenue Code Section
412(n) or ERISA Section 302(f) or Tax under Internal Revenue Code
Section 4971. Neither it nor any of its Subsidiaries has provided, or
is required to provide, security to any of its Pension Plans or to any
single-employer plan of any of its ERISA Affiliates pursuant to Section
401(a)(29) of the Internal Revenue Code.
(vi) No Liability under Title IV of ERISA has
been or is expected to be incurred by it or any of its Subsidiaries
with respect to any defined benefit plan currently or formerly
maintained by any of them or by any of its ERISA Affiliates that has
not been satisfied in full (other than Liability for PBGC premiums,
which have been paid when due).
(vii) Except as disclosed in Section 4.3(k) of its
Disclosure Letter, neither it nor any of its Subsidiaries has any
obligations for retiree health and retiree life benefits under any of
its Compensation and Benefit Plans other than with respect to benefit
coverage mandated by applicable Law.
(viii) There has been no amendment to, announcement
by it or any of its Subsidiaries relating to, or change in employee
participation or coverage under, any Compensation and Benefit Plan
which would increase the expense of maintaining such plan above the
level of the expense incurred therefor for the most recent fiscal year.
None of the execution and delivery of this Agreement, the shareholder
or stockholder approval of the transactions contemplated hereby or the
consummation of the transactions contemplated hereby (A) result in any
payment (including severance, golden parachute, or otherwise) becoming
due to any director or any employee of it or any of its Subsidiaries
from it or any of its Subsidiaries under any of its Compensation and
Benefit Plans or otherwise, other than by operation of Law, (B)
increase any benefits otherwise payable under any of its Compensation
and Benefit Plans, (C) result in any acceleration of the time of
payment or vesting of any such benefit, (D) limit or restrict the right
of it to merge, amend or terminate any of the Compensation and Benefit
Plans or (E) result in payments under any Compensation and Benefit
Plans which would not be deductible under Section 280G of the Internal
Revenue Code.
(l) MATERIAL CONTRACTS.
(i) Except for Contracts reflected as exhibits
to its SEC Reports filed prior to the date of this Agreement, as of the
date of this Agreement, neither it nor any of its Subsidiaries, nor any
of their respective assets, businesses, or operations, is a party to,
or is bound or affected by, or receives benefits under, (A) any
Contract relating to the borrowing of money by it or any of its
Subsidiaries or the guarantee by it or any of its
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Subsidiaries of any such obligation (other than Contracts pertaining to
fully-secured repurchase agreements, and trade payables, and Contracts
relating to borrowings or guarantees made in the ordinary course of
business), (B) any Contract containing covenants that limit the ability
of it or any of its Subsidiaries to compete in any line of business or
with any Person, or that involve any restriction of the geographic area
in which, or method by which, it or any of its Subsidiaries may carry
on its business (other than as may be required by Law or any
Governmental Authority), (C) any other Contract or amendment thereto
that would be required to be filed as an exhibit to any SEC Report (as
described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the
0000 Xxx) that has not been filed as an exhibit to or incorporated by
reference in its SEC Reports filed prior to the date of this Agreement
or (D) any Contract that involves expenditures or receipts of it or any
of its Subsidiaries in excess of $1,000,000 per year. With respect to
each of its Contracts that are (A) reflected as an exhibit to any SEC
Report, (B) would be required under Items 601(b)(4) and 601(b)(10) of
Regulation S-K under the 1933 Act to be filed as an exhibit to any of
its SEC Reports, or (C) that is disclosed in its Disclosure Letter: (w)
each such Contract is in full force and effect; (x) neither it nor any
of its Subsidiaries is in Default thereunder; (y) neither it nor any of
its Subsidiaries has repudiated or waived any material provision of any
such Contract; and (z) no other party to any such Contract is, to its
knowledge, in Default in any material respect.
(ii) All interest rate swaps, caps, floors,
option agreements, futures and forward contracts, and other similar
risk management arrangements, whether entered into for its own account
or for the account of one or more of its Subsidiaries or their
respective customers, were entered into (A) in accordance with prudent
business practices and all applicable Laws and (B) with counterparties
believed to be financially responsible, and each of them is enforceable
against it or its Subsidiaries in accordance with its terms (except in
all cases as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, receivership, conservatorship,
moratorium, or similar Laws affecting the enforcement of creditors'
rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding may be brought),
and is in full force and effect. Neither it nor any of its
Subsidiaries, nor to its knowledge, any other party thereto, is in
Default of any of its obligations under any such agreement or
arrangement. Its Financial Statements disclose the value of such
agreements and arrangements on a xxxx-to-market basis in accordance
with GAAP (including but not limited to Financial Accounting Statement
133) and, since September 30, 2003, there has not been a change in such
value that, individually or in the aggregate, has resulted in a
Material Adverse Effect on it.
(m) LEGAL PROCEEDINGS. There is no Litigation pending or,
to its knowledge, threatened against it or any of its Subsidiaries, or against
any asset, interest, or right of any of them nor are there any Orders of any
Governmental Authority or arbitrators outstanding against it or any of its
Subsidiaries.
(n) REPORTS. Since January 1, 2000, or the date of
organization if later, it and each of its Subsidiaries has filed all reports and
statements, together with any amendments required to be made with respect
thereto, that it was required to file with any Governmental
- 21 -
Authority and all other reports and statements required to be filed by them
since January 1, 2000, including any report or statement required to be filed
pursuant to any Law have been so filed, and it and each of its Subsidiaries have
paid all fees and assessments due and payable in connection therewith.
(o) INTELLECTUAL PROPERTY.
(i) It and its Subsidiaries own, or are licensed
or otherwise possess sufficient legally enforceable rights to use, all
Intellectual Property (including the Technology Systems) that is used
by it and its Subsidiaries in their respective businesses as currently
conducted. Neither it nor any of its Subsidiaries has (A) licensed any
Intellectual Property owned by it or its Subsidiaries in source code
form to any Person or (B) entered into any exclusive agreements
relating to Intellectual Property owned by it or its Subsidiaries.
(ii) It and its Subsidiaries have not infringed
or otherwise violated the Intellectual Property rights of any third
Person since January 1, 2001. There is no claim asserted, or to its
knowledge threatened, against it and its Subsidiaries or any indemnitee
thereof concerning the ownership, validity, registerability,
enforceability, infringement, use or licensed right to use any
Intellectual Property.
(iii) No third Person has infringed,
misappropriated or otherwise violated it or its Subsidiaries'
Intellectual Property rights since January 1, 2001. There are no claims
asserted or threatened by it or its Subsidiaries, or decided by them to
be asserted or threatened, that (A) a third Person infringed or
otherwise violated any of their Intellectual Property rights; or (B) a
third Person's owned or claimed Intellectual Property interferes with,
infringes, dilutes or otherwise xxxxx any of their Intellectual
Property rights.
(iv) It and its Subsidiaries have taken
reasonable measures to protect the confidentiality of all Trade Secrets
that are owned, used or held by them.
(p) STATE TAKEOVER LAWS. It has taken all action required
to be taken by it in order to exempt this Agreement and the transactions
contemplated hereby from, and this Agreement and the transactions contemplated
hereby are exempt from, the requirements of any "moratorium," "control share,"
"fair price," "affiliate transaction," "anti-greenmail," "business combination"
or other antitakeover Laws of any jurisdiction, including but not limited to (i)
in the case of Union Planters, Chapter 103 of Title 48 of the Tennessee Code,
and (ii) in the case of Regions, Section 203 of the DGCL (collectively,
"Takeover Laws"). It has taken all action required to be taken by it in order to
make this Agreement and the transactions contemplated hereby comply with, and
this Agreement and the transactions contemplated hereby do comply with, the
requirements of any provisions of its Organizational Documents concerning
"business combination," "fair price," "voting requirement," "constituency
requirement" or other related provisions, including but not limited to (i) in
the case of Union Planters, the provisions of Article Fourteenth of the Union
Planters Amended and Restated Charter and (ii) in the case of Regions, the
provisions of Section (7) of Article Seventh of the Regions Restated Certificate
of Incorporation.
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(q) BROKERS AND FINDERS. Except for Xxxxxx Xxxxxxx & Co.,
Inc. as to Union Planters and UBS Securities LLC as to Regions (in each case
pursuant to engagement letters which have been set forth as an exhibit to their
respective Disclosure Letter), neither it nor any of its officers, directors,
employees, or Affiliates has employed any broker or finder or incurred any
Liability for any financial advisory fees, investment bankers' fees, brokerage
fees, commissions, or finders' fees in connection with this Agreement or the
transactions contemplated hereby.
(r) FAIRNESS OPINION. Prior to the execution of this
Agreement, Union Planters has received an opinion of Xxxxxx Xxxxxxx & Co., Inc.
and Regions has received an opinion of UBS Securities LLC, each to the effect
that as of the date thereof and based upon and subject to the matters set forth
therein, (i) in the case of Regions, the Exchange Ratio is fair, from a
financial point of view, to the stockholders of Regions, and (ii) in the case of
Union Planters, the exchange of Union Planters Common Stock for Newco Common
Stock provided for in the Agreement is fair, from a financial point of view, to
the shareholders of Union Planters. Such opinions have not been amended or
rescinded as of the date of this Agreement.
(s) INSURANCE. It and its Subsidiaries are insured with
reputable insurers against such risks and in such amounts as its management
reasonably has determined to be prudent in accordance with industry practices.
ARTICLE 5
COVENANTS AND ADDITIONAL AGREEMENTS
5.1 CONDUCT OF BUSINESS PRIOR TO EFFECTIVE TIME. During the period
from the date of this Agreement through the Effective Time, except as set forth
in its Disclosure Letter, except as expressly contemplated or permitted by this
Agreement and except as Consented to in writing by the other Party (which
Consent shall not be unreasonably withheld or delayed), each of the Parties and
Newco shall, and shall cause each of their respective Subsidiaries to, (a)
conduct its business in the ordinary course, (b) use reasonable best efforts to
maintain and preserve intact its business organization, assets, employees and
relationships with customers, suppliers, employees and business associates, and
(c) take no action that would adversely affect or delay the ability of either
Party to obtain any Required Consents, to perform its covenants and agreements
under this Agreement, or to consummate the transactions contemplated hereby on a
timely basis.
5.2 FORBEARANCES. During the period from the date of this
Agreement through the Effective Time, except as set forth in its Disclosure
Letter and except as expressly contemplated or permitted by this Agreement or as
otherwise indicated in this Section 5.2, neither Party nor Newco shall, and
neither Party nor Newco shall permit any of its Subsidiaries to, without the
prior written Consent of the other Party and Newco (which Consent shall not be
unreasonably withheld or delayed):
(a) amend the Organizational Documents of
Regions, Union Planters, or Newco (except as provided herein);
(b) except for Permitted Issuances and Permitted
Repurchases and except as provided in Section 5.3, (i) adjust, split,
combine or reclassify any capital stock,
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(ii) make, declare or pay any dividend, or make any other distribution
on, or directly or indirectly redeem, purchase or otherwise acquire,
any shares of its capital stock or any securities or obligations
convertible (whether currently convertible or convertible only after
the passage of time or the occurrence of certain events) into or
exchangeable for any shares of its capital stock, (iii) grant or issue
any Rights (other than reload options issued in connection with the
exercise of stock options outstanding as of the date of this Agreement
and as required by any Contract, in each case as disclosed in its
Disclosure Letter), (iv) issue any additional shares of capital stock,
or (v) make any change in any instrument or Contract governing the
terms of any of its securities;
(c) other than in the ordinary course of
business or pursuant to Contracts in force at the date of or permitted
by this Agreement and other than in satisfaction of debts previously
contracted in good faith, make any material investment in or
acquisition of (either by purchase of stock or securities,
contributions to capital, property transfers, or purchase of any
property or assets) any other Person other than its wholly owned
Subsidiaries;
(d) enter into any new line of business, or
change its lending, investment, underwriting, risk and asset liability
management and other banking and operating policies that are material
to it and its Subsidiaries, taken as a whole, except as required by
applicable Law or any regulations or policies imposed on it by any
Governmental Authority;
(e) sell, transfer, mortgage, encumber or
otherwise dispose of any part of its business or any of its properties
or assets to any Person other than a wholly owned Subsidiary, or
cancel, release or assign any indebtedness to any Person other than a
wholly owned Subsidiary or any claims against any Person other than a
Subsidiary, except in the ordinary course of business or pursuant to
Contracts in force as of the date of this Agreement and disclosed in
Section 5.2(e) of its Disclosure Letter;
(f) other than in the ordinary course of
business: incur any indebtedness for borrowed money; assume, guarantee,
endorse or otherwise as an accommodation become responsible for the
obligations of any Person; or make any loan or advance;
(g) other than in consultation with the other
Party and Newco, restructure or change its investment securities
portfolio, its derivatives portfolio or its interest rate exposure,
through purchases, sales or otherwise, or the manner in which the
portfolio is classified or reported, in any material respect;
(h) other than in the ordinary course of
business, terminate or waive any material provision of any material
Contract other than normal renewals of Contracts without materially
adverse changes, additions or deletions of terms;
(i) other than as required by Compensation and
Benefit Plans and Contracts as in effect at the date of this Agreement
or applicable law, (i) increase in any manner the compensation or
fringe benefits of any of its officers, employees or directors
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other than with respect to employees who are not directors or executive
officers and then only in the ordinary course of business consistent
with past practice, (ii) pay any pension or retirement allowance not
required by any existing Compensation and Benefit Plan or Contract to
any such officers, employees or directors, (iii) become a party to,
amend or commit itself to any Compensation and Benefit Plan or Contract
(or any individual Contracts evidencing grants or awards thereunder) or
employment agreement with or for the benefit of any officer, employee
or director other than with respect to employees who are not directors
or executive officers and then only in the ordinary course of business
consistent with past practice, or (iv) accelerate the vesting of, or
the lapsing of restrictions with respect to, Rights pursuant to Regions
Stock Plans in the case of Regions, and Rights pursuant to Union
Planters Stock Plans in the case of Union Planters;
(j) settle any Litigation, except for any
Litigation involving solely money damages in an amount, individually or
in the aggregate for all such settlements, that is not material to such
Party and its Subsidiaries, taken as a whole, or Newco and that does
not involve or create precedent for Litigation that is reasonably
likely to be material to it and its Subsidiaries taken as a whole;
(k) implement or adopt any change in its
accounting principles, practices or methods, including reserving
methodologies, other than as may be required by GAAP, regulatory
accounting guidelines or applicable Law;
(l) file or amend any Tax Return except in the
ordinary course of business; settle or compromise any material Tax
Liability; make, change or revoke any material Tax election or change
any method of Tax accounting, except as required by applicable Law;
(m) knowingly take, or knowingly omit to take,
any action that is reasonably likely to result in any of the conditions
to the Merger set forth in Article 6 not being satisfied on a timely
basis except as may be required by applicable Law; provided, that
nothing in this Section 5.2(m) shall preclude any Party from exercising
its respective rights under Section 5.13;
(n) take any action that would reasonably be
expected to prevent the Merger from qualifying as a reorganization
within the meaning of Section 368(a) of the Internal Revenue Code; or
(o) agree to take any of the actions prohibited
to it by this Section 5.2.
5.3 DIVIDENDS.
(a) Each Party agrees that, from and after the date of
this Agreement until the Effective Time, (i) Union Planters may (to the extent
legally and contractually permitted to do so), but shall not be obligated to,
declare and pay quarterly dividends on outstanding shares of Union Planters
Common Stock at a rate not to exceed $0.33 1/3 per share per quarter, (ii) Union
Planters may (to the extent legally and contractually permitted to do so), but
shall not be obligated to, declare and pay dividends on outstanding shares of
Union Planters Series E Preferred Stock in accordance with the terms of its
Organizational Documents and applicable
- 25 -
Law, (iii) Regions may (to the extent legally and contractually permitted to do
so), but shall not be obligated to, declare and pay quarterly dividends on
outstanding shares of Regions Common Stock, and may increase the rate of such
quarterly dividends up to an amount not to exceed $0.4116 per share per quarter
and (iv) its direct and indirect Subsidiaries may (to the extent legally and
contractually permitted to do so), but shall not be obligated to, declare and
pay dividends on their capital stock in cash, stock or other property to the
Parties or their wholly owned Subsidiaries and to the holders of any trust
preferred securities and of any REIT preferred securities issued by Subsidiaries
of the Parties.
(b) After the date of this Agreement, each Party shall
coordinate with the other with respect to the declaration of any dividends in
respect of Regions Common Stock and Union Planters Common Stock and the record
dates and payment dates relating thereto, it being the intention of the Parties
that holders of Union Planters Common Stock shall not receive two dividends, or
fail to receive one dividend, for any quarter with respect to their shares of
Union Planters Common Stock and any shares of Regions Common Stock any such
holder receives in exchange therefor in the Merger (i.e., if the Parties
anticipated the Effective Time occurring after the typical Union Planters
dividend record date in May (which would typically be declared in April but
before the typical Regions dividend record date in June (which would typically
be declared in May), as mutually agreed by the Parties, (i) either Union
Planters would declare its dividend in May with a record date in June
corresponding to Regions' declaration and record dates or (ii) Regions would
declare its dividend in April with a record date in May corresponding to Union
Planters' declaration and record date).
5.4 REDEMPTION OF UNION PLANTERS SERIES E PREFERRED STOCK. As
promptly as practicable, and in any event within 20 days of the date of this
Agreement, Union Planters shall take all action necessary to effect the
redemption (subject to the rights of the holders of shares of Union Planters
Series E Preferred Stock to convert such shares into shares of Union Planters
Common Stock) of all Outstanding shares of Union Planters Series E Preferred
Stock in accordance with the terms of the Union Planters Amended and Restated
Charter and the applicable provisions of the TBCA so that such redemption shall
occur no later than 50 days after the date of this Agreement. The Parties
acknowledge and agree that the redemption described in this Section 5.4 will
require the approval of the Board of Governors of the Federal Reserve System.
5.5 REASONABLE BEST EFFORTS.
(a) Subject to the terms and conditions of this
Agreement, the Parties and Newco will use their reasonable best efforts to take,
or cause to be taken, in good faith, all actions, and to do, or cause to be
done, all things necessary, proper or desirable, or advisable under applicable
Laws, including using its reasonable best efforts to lift or rescind any Order
adversely affecting its ability to consummate the transactions contemplated
hereby on a timely basis and to cause to be satisfied the conditions in Article
6, to permit consummation of the Merger as promptly as practicable and otherwise
to enable consummation of the transactions contemplated hereby, and each will
cooperate fully with and furnish information to, the other Party and Newco to
that end; provided that nothing contained herein shall preclude any Party or
Newco from exercising its rights under this Agreement.
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(b) Union Planters shall take all actions necessary or
required to ensure that the entering into of this Agreement, and the
consummation of the transactions contemplated hereby (individually or in
conjunction with any other event), do not and will not result in (i) Newco,
Regions or any Affiliate of Regions or any other Person becoming an "Acquiring
Person" for purposes of the Union Planters Rights Plan or the occurrence of a
"Distribution Date" under the Union Planters Rights Plan or (ii) the ability of
any Person to exercise any Union Planters Shareholder Rights under the Union
Planters Rights Plan or enable or require the Union Planters Shareholder Rights
to separate from the shares of Union Planters Common Stock to which they are
attached or to be triggered or become exercisable, distributable or
unredeemable.
(c) Upon the terms and subject to the conditions of this
Agreement and prior to or in connection with the Closing, Union Planters,
Regions and Newco shall execute and the Parties and Newco shall cause to be
filed the articles of merger with the Tennessee Secretary and the Delaware
Secretary.
(d) Each Party and Newco undertakes and agrees to use its
reasonable best efforts to cause the Merger, and to take no action which would
reasonably be expected to cause the Merger not, to qualify for treatment as a
"reorganization" within the meaning of Section 368(a) of the Internal Revenue
Code for federal income Tax purposes.
(e) The Parties and Newco shall consult with respect to
the character, amount and timing of restructuring charges to be taken by each
of them in connection with the transactions contemplated hereby and shall take
such charges in accordance with GAAP, as such Parties and Newco mutually agree
upon.
5.6 SHAREHOLDERS' AND STOCKHOLDERS' APPROVALS.
(a) Regions shall call a meeting of its stockholders to
be held as soon as reasonably practicable for the purpose of obtaining the
Regions Stockholder Approval and such other matters as the Board of Directors of
Regions may direct, and shall use its reasonable best efforts to cause such
meeting to occur as soon as reasonably practicable. The Board of Directors of
Regions shall use its reasonable best efforts to obtain the Regions Stockholder
Approval.
(b) Union Planters shall call a meeting of its
shareholders to be held as soon as reasonably practicable for the purpose of
obtaining the Union Planters Shareholder Approval and such other matters as the
Board of Directors of Union Planters may direct, and shall use its reasonable
best efforts to cause such meeting to occur as soon as reasonably practicable.
The Board of Directors of Union Planters shall use its reasonable best efforts
to obtain the Union Planters Shareholder Approval.
(c) Regions and Union Planters shall use their reasonable
best efforts to hold their respective stockholder and shareholder meetings on
the same day.
5.7 REGISTRATION STATEMENT; JOINT PROXY STATEMENT/PROSPECTUS.
(a) Each Party and Newco agree to cooperate with the
other Party and Newco, and their Representatives, in the preparation of the
Registration Statement and the Joint Proxy
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Statement/Prospectus. Neither the Joint Proxy Statement/Prospectus nor the
Registration Statement shall be filed, and, prior to the termination of this
Agreement, no amendment or supplement to the Joint Proxy Statement/Prospectus or
the Registration Statement shall be filed, by Newco, Regions or Union Planters
without consultation with the other Party, Newco and their counsel. Newco agrees
to use all reasonable efforts to cause the Registration Statement to be declared
effective under the 1933 Act as promptly as practicable after filing thereof.
The Parties and Newco agree to use all reasonable efforts to obtain all Permits
required by the Securities Laws to carry out the transactions contemplated by
this Agreement, and each Party and Newco agree to furnish all information
concerning them and the holders of their capital stock as may be reasonably
requested in connection with any such action.
(b) Each Party and Newco agree, as to themselves and
their Subsidiaries, that none of the information supplied or to be supplied by
it for inclusion or incorporation by reference in (i) the Registration Statement
will, at the time the Registration Statement and each amendment and supplement
thereto, if any, become effective under the 1933 Act, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
(ii) the Joint Proxy Statement/Prospectus and any amendment or supplement
thereto, at the date of mailing to stockholders and at the times of the meetings
of Regions stockholders and Union Planters shareholders, will contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements, in light of the circumstances under which they were
made, not misleading, or necessary to correct any statement in any earlier
statement in the Joint Proxy Statement/Prospectus or any amendment or supplement
thereto. Each Party and Newco further agrees that if it shall become aware prior
to the Effective Time of any information furnished by it that would cause any of
the statements in the Joint Proxy Statement/Prospectus or the Registration
Statement to be false or misleading with respect to any material fact, or to
omit to state any material fact necessary to make the statements therein not
false or misleading, to promptly inform the other Party and Newco thereof and to
take the necessary steps to correct the Joint Proxy Statement/Prospectus or the
Registration Statement.
5.8 LISTING OF NEWCO COMMON STOCK. Newco shall cause the shares of
Newco Common Stock to be issued in the Merger to be approved for listing on the
NYSE, subject to official notice of issuance, as promptly as practicable, and in
any event before the First Effective Time.
5.9 APPLICATIONS AND CONSENTS.
(a) The Parties and Newco shall cooperate in seeking all
Consents of Governmental Authorities and other Persons necessary to consummate
the transactions contemplated hereby.
(b) Without limiting the foregoing, the Parties and Newco
shall cooperate with the other and use their reasonable best efforts to promptly
(i) file applications and notices, as applicable, with the Board of Governors of
the Federal Reserve System under the BHC Act, as amended, and obtaining approval
of such applications and notices, (ii) file any required applications or notices
with any foreign or state banking, insurance or other Regulatory Authorities and
obtaining approval of such applications and notices, (iii) make any notices to
or
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filings with the Small Business Administration, (iv) make any notices or filings
under the HSR Act, and (v) make any filings with and obtaining any Consents in
connection with compliance with the applicable provisions of the rules and
regulations of any applicable industry self-regulatory organization, including
approvals from the NASD and any relevant state regulator in connection with a
change of control of the Union Planters broker-dealers, or that are required
under consumer finance, mortgage banking and other similar Laws (collectively,
the "Regulatory Consents").
(c) Each Party and Newco will promptly furnish to the
other Party and Newco copies of applications filed with all Governmental
Authorities and copies of written communications received by such Party and
Newco from any Governmental Authorities with respect to the transactions
contemplated hereby. Each Party agrees that it will consult with the other Party
and Newco with respect to the obtaining of all Regulatory Consents and other
material Consents advisable to consummate the transactions contemplated by this
Agreement and each Party and Newco will keep the other Party and Newco apprised
of the status of material matters relating to completion of the transactions
contemplated hereby. All documents that the Parties or their respective
Subsidiaries and Newco are responsible for filing with any Governmental
Authority in connection with the transactions contemplated hereby (including to
obtain Regulatory Consents) will comply as to form in all material respects with
the provisions of applicable Law.
5.10 NOTIFICATION OF CERTAIN MATTERS. Each Party and Newco will
give prompt notice to the other Party and Newco (and subsequently keep the other
Party and Newco informed on a current basis) upon its becoming aware of the
occurrence or existence of any fact, event or circumstance that (a) is
reasonably likely to result in any Material Adverse Effect on it, or (b) would
cause or constitute a material breach of any of its representations, warranties,
covenants, or agreements contained herein; provided, that any failure to give
notice in accordance with the foregoing with respect to any breach shall not be
deemed to constitute the failure of any condition set forth in Sections 6.2(b)
or 6.3(b) to be satisfied, or otherwise constitute a breach of this Agreement by
the Party or Newco failing to give such notice, in each case unless the
underlying breach would independently result in a failure of the conditions set
forth in Section 6.2(a), 6.2(b), 6.3(a) or 6.3(b), to be satisfied or give rise
to such termination right.
5.11 INVESTIGATION AND CONFIDENTIALITY.
(a) Each Party and Newco shall permit the other Party and
Newco to make or cause to be made such investigation of the business and
Properties of it and its Subsidiaries and of their respective financial and
legal conditions as the other Party and Newco reasonably requests; provided,
that such investigation shall be reasonably related to the transactions
contemplated hereby and shall not interfere unnecessarily with normal
operations; and provided further, that neither Party nor any of their respective
Subsidiaries nor Newco shall be required to provide access to or to disclose
information where such access or disclosure would jeopardize the attorney-client
or other privilege with respect to such information or contravene any Law,
Order, or Contract and the Parties and Newco will use their reasonable efforts
to make appropriate substitute disclosure arrangements, to the extent
practicable, in circumstances in
- 29 -
which the restrictions of the preceding sentence apply. No investigation by a
Party or Newco shall affect the representations and warranties of the other
Party or Newco.
(b) Each Party and Newco shall, and shall cause its
Representatives to, maintain the confidentiality of all confidential information
furnished to it by the other Party and Newco concerning its and its
Subsidiaries' businesses, operations, and financial positions to the extent
required by, and in accordance with the Confidentiality Agreement, and shall not
use such information for any purpose except in furtherance of the transactions
contemplated by this Agreement. If this Agreement is terminated prior to the
Effective Time, each Party and Newco shall promptly return or certify the
destruction of all documents and copies and extracts thereof, and all work
papers containing confidential information received from the other Party and
Newco.
5.12 PRESS RELEASES; PUBLICITY. Prior to the Effective Time, the
Parties and Newco shall consult with each other as to the form and substance of
any press release or other public statement materially related to this Agreement
and the transactions contemplated hereby prior to issuing such press release or
public statement or making any other public disclosure related thereto;
provided, that nothing in this Section 5.12 shall be deemed to prohibit any
Party or Newco from making any disclosure necessary in order to satisfy such
Party or Newco's disclosure obligations imposed by Law or the NYSE or any other
self-regulatory organization.
5.13 ACQUISITION PROPOSALS.
(a) Each Party agrees that it will not, and will cause
its Subsidiaries and its and its Subsidiaries' officers, directors,
Representatives and Affiliates not to, directly or indirectly, (i) initiate,
solicit, encourage or knowingly facilitate inquiries or proposals with respect
to, (ii) engage or participate in any negotiations concerning, (iii) provide any
confidential or nonpublic information or data to, or have or participate in any
discussions with, any Person relating to, or (iv) in the case of Union Planters
only, waive any provisions of or amend the terms of the Union Planters Rights
Plan to facilitate, any Acquisition Proposal; provided that, in the event either
Party receives an unsolicited bona fide written Acquisition Proposal, such Party
may, and may permit its Subsidiaries and its and its Subsidiaries'
Representatives to, furnish or cause to be furnished nonpublic information or
data and participate in such negotiations or discussions to the extent that the
Board of Directors of such Party concludes in good faith (after receiving the
advice of its outside counsel and its financial advisors) that failure to take
such actions would result in a violation of its fiduciary duties under
applicable Law; provided further that, prior to providing any nonpublic
information permitted to be provided pursuant to the foregoing proviso, it shall
have entered into a confidentiality agreement with such third party on terms no
less favorable to it than the Confidentiality Agreement. Each Party will
immediately cease and cause to be terminated any activities, discussions or
negotiations conducted before the date of this Agreement with any Persons other
than Union Planters or Regions, as the case dictates, with respect to any
Acquisition Proposal. Each Party will promptly (within one day) advise the other
Party following receipt of any Acquisition Proposal or any inquiry which could
reasonably be expected to lead to an Acquisition Proposal, and the substance
thereof (including the identity of the Person making such Acquisition Proposal),
and will keep the other Party apprised of any related developments, discussions
and negotiations on a current basis. Each of the Parties shall
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use its reasonable best efforts to enforce any existing confidentiality or
standstill agreements to which it or any of its Subsidiaries is a party in
accordance with the terms thereof.
(b) Nothing contained in this Agreement shall prevent a
Party or its Board of Directors from complying with Rule 14d-9 and Rule 14e-2
under the 1934 Act with respect to an Acquisition Proposal; provided, that such
Rules will in no way eliminate or modify the effect that any action pursuant to
such Rules would otherwise have under this Agreement.
5.14 TAKEOVER LAWS; NO RIGHTS TRIGGERED. If any Takeover Law may
become, or may purport to be, applicable to the transactions contemplated
hereby, each Party and Newco and the members of their respective Boards of
Directors will grant such approvals and take such actions as are necessary
(other than any action requiring the approval of its stockholders or
shareholders (other than as contemplated by Section 5.6)) so that the
transactions contemplated by this Agreement may be consummated as promptly as
practicable on the terms contemplated hereby and otherwise act to eliminate or
minimize the effects of any Takeover Law on any of the transactions contemplated
by this Agreement. Union Planters shall take all action necessary to ensure
that, so long as this Agreement shall not have been terminated pursuant to the
terms hereof, that no Person shall become able to exercise any rights under the
Union Planters Rights Plan or enable or require the Union Planters Shareholder
Rights to separate from the shares of Union Planters Common Stock to which they
are attached or to be triggered or become exercisable or unredeemable as a
result of entering into this Agreement or consummating the transactions
contemplated hereby. The Parties and Newco agree that none of Union Planters'
representations, warranties, covenants or agreements set forth in this Agreement
shall be deemed to be inaccurate, untrue or breached in any respect for any
purpose as a result of the redemption of the Union Planters Shareholder Rights
with the prior written consent of Regions.
5.15 EXEMPTION FROM LIABILITY UNDER SECTION 16(b). Regions and
Union Planters agree that, in order to most effectively compensate and retain
Union Planters Insiders and Regions Insiders (as defined below) in connection
with the Merger, both prior to and after the Effective Time, it is desirable
that Union Planters Insiders and Regions Insiders not be subject to a risk of
liability under Section 16(b) of the 1934 Act to the fullest extent permitted by
applicable Law in connection with the conversion of shares of Union Planters
Common Stock and Union Planters Stock Options or Regions Common Stock and
Regions Stock Options into shares of Newco Common Stock in the Merger, and for
that compensatory and retentive purpose agree to the provisions of this Section
5.15. Assuming Union Planters and Regions deliver to Newco in a reasonably
timely fashion prior to the Effective Time accurate information regarding those
officers and directors of Union Planters and Regions subject to the reporting
requirements of Section 16(a) of the 1934 Act (respectively, the "Union Planters
Insiders" and the "Regions Insiders"), the number of shares of Union Planters
Common Stock or Regions Common Stock held or to be held by each such Union
Planters Insider or Regions Insider expected to be exchanged for Newco Common
Stock in the Merger, and the number and description of Union Planters Stock
Options and Union Planters Stock-Based Awards or Regions Stock Options and
Regions Stock-Based Awards held by each such Union Planters Insider or Regions
Insider and expected to be converted into Newco Stock Options or Newco
Stock-Based Awards, the Board of Directors of Newco, or a committee of
non-employee directors thereof (as such term is defined for purposes of Rule
16b-3(d) under the 1934 Act), shall reasonably promptly thereafter, and in any
event prior to the Effective Time, adopt a resolution providing in substance
that the
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receipt by the Union Planters Insiders and Regions Insiders of Newco Common
Stock in exchange for shares of Union Planters Common Stock and Regions Common
Stock, and of Newco Stock Options upon conversion of Union Planters Stock
Options or Regions Stock Options, or Newco Stock-Based Awards upon conversion of
Union Planters Stock-Based Awards or Regions Stock-Based Awards, in each case
pursuant to the transactions contemplated by this Agreement, are approved by
such Board of Directors or by such committee thereof, and are intended to be
exempt from Liability pursuant to Section 16(b) of the 1934 Act to the fullest
extent permitted by applicable Law.
5.16 AGREEMENT OF AFFILIATES. Union Planters and Regions have
disclosed in Section 5.16 of their Disclosure Letters each Person whom they
reasonably believe may be deemed an "affiliate" of Union Planters or Regions,
respectively, for purposes of Rule 145 under the 1933 Act. Union Planters and
Regions shall use their reasonable efforts to cause each such Person to deliver
to Newco not later than the First Effective Time, a written agreement, in
substantially the form of Exhibit 2-A and 2-B, respectively.
5.17 EMPLOYEE BENEFITS AND CONTRACTS.
(a) Following the Effective Time, Newco at its election
shall either (i) provide generally to officers and employees of Union Planters
and its Subsidiaries, who at or after the Effective Time become employees of
Newco or its Subsidiaries ("Union Planters Continuing Employees"), employee
benefits under Compensation and Benefit Plans maintained by Newco, on terms and
conditions which are the same as for similarly situated officers and employees
of Regions and its Subsidiaries, who at or after the Effective Time become
employees of Newco or its Subsidiaries ("Regions Continuing Employees"), or (ii)
maintain for the benefit of the Union Planters Continuing Employees, the
Compensation and Benefit Plans maintained by Union Planters immediately prior to
the First Effective Time; provided that Newco may amend any Compensation and
Benefit Plan maintained by Union Planters immediately prior to the First
Effective Time to comply with any Law or as necessary and appropriate for other
business reasons. Following the First Effective Time, Newco at its election
shall either (i) provide generally to Regions Continuing Employees, employee
benefits under Compensation and Benefit Plans maintained by Newco, on terms and
conditions which are the same as for similarly situated Union Planters
Continuing Employees, or (ii) maintain for the benefit of the Regions Continuing
Employees, the Compensation and Benefits Plans maintained by Regions immediately
prior to the First Effective Time; provided that Newco may amend any
Compensation and Benefit Plan maintained by Regions immediately prior to the
Effective Time to comply with any Law or as necessary and appropriate for other
business reasons. For purposes of this Section 5.17, Compensation and Benefit
Plans maintained by Regions or Union Planters are deemed to include Compensation
and Benefit Plans maintained by their respective Subsidiaries.
(b) For purposes of participation, vesting and benefit
accrual (except not for purposes of benefit accrual with respect to any plan in
which such credit would result in a duplication of benefits) under Newco's
Compensation and Benefit Plans, service with or credited by Union Planters or
any of its Subsidiaries or any of their predecessors or Regions or any of its
Subsidiaries or any of their predecessors shall be treated as service with
Newco; provided that this provision shall not cause Regions' tax-qualified
defined benefit pension plan (which is not open to new participants) to be
opened to new participants. To the extent permitted under
- 32 -
applicable Law, Newco shall cause welfare Compensation and Benefit Plans
maintained by Newco that cover the Union Planters Continuing Employees or
Regions Continuing Employees ("Continuing Employees") after the Effective Time
to (i) waive any waiting period and restrictions and limitations for preexisting
conditions or insurability (except for pre-existing conditions that were
excluded, or restrictions or limitations that were applicable, under welfare
Compensation and Benefit Plans maintained by Union Planters or Regions), and
(ii) cause any deductible, co-insurance, or maximum out-of-pocket payments made
by the Union Planters Continuing Employees or Regions Continuing Employees under
welfare Compensation and Benefit Plans maintained by Union Planters or Regions,
respectively, to be credited to such Continuing Employees under welfare
Compensation and Benefit Plans maintained by Newco, so as to reduce the amount
of any deductible, co-insurance, or maximum out-of-pocket payments payable by
such Continuing Employees under welfare Compensation and Benefit Plans
maintained by Newco.
(c) From the First Effective Time or the Effective Time,
as the case may be, until December 31, 2005, Newco shall cause each medical
Compensation and Benefit Plan maintained by Union Planters or Regions,
respectively, to continue in effect for the benefit of the Union Planters
Continuing Employees or Regions Continuing Employees, respectively, so long as
such Continuing Employees remain eligible to participate and until they shall
become eligible to become participants in the corresponding medical Compensation
and Benefit Plans maintained by Newco (and, with respect to any such plan or
program, subject to complying with the eligibility requirements after taking
into account the service crediting and other provisions set forth above and
subject to the right of Newco to terminate such plan or program).
(d) Nothing in this Section 5.17 shall be interpreted as
preventing Newco, from and after the Effective Time, from amending, modifying or
terminating any Compensation and Benefit Plans maintained by Regions,
Compensation and Benefit Plans maintained by Union Planters, or other Contracts,
arrangements, commitments or understandings, in accordance with their terms and
applicable Law.
5.18 INDEMNIFICATION.
(a) From and after the Effective Time or the First
Effective Time, as the case may be, in the event of any threatened or actual
claim, action, suit, proceeding, or investigation, whether civil, criminal, or
administrative, in which any Person who is now, or has been at any time prior to
the date of this Agreement, or who becomes prior to the Effective Time or the
First Effective Time, as the case may be, a director or officer of Union
Planters or Regions or any of their Subsidiaries (the "Indemnified Parties") is,
or is threatened to be, made a party based in whole or in part on, or arising in
whole or in part out of, or pertaining to (i) the fact that he is or was a
director, officer, or employee of Union Planters, Regions, any of their
Subsidiaries, or any of their respective predecessors, or (ii) this Agreement or
any of the transactions contemplated hereby, whether in any case asserted or
arising before or after the Effective Time or the First Effective Time, as the
case may be, Newco shall indemnify and hold harmless, to the fullest extent
permitted by applicable Law each such Indemnified Party against any Liability
(including advancement of reasonable attorneys' fees and expenses prior to the
final disposition of any claim, suit, proceeding, or investigation to each
Indemnified Party to the fullest extent permitted by Law upon receipt of any
undertaking required by applicable Law), judgments, fines, and
- 33 -
amounts paid in settlement in connection with any such threatened or actual
claim, action, suit, proceeding, or investigation.
(b) Newco agrees that all rights to indemnification and
all limitations on Liability existing in favor of the directors, officers, and
employees of Union Planters, Regions and their Subsidiaries (the "Covered
Parties") as provided in their respective Organizational Documents as in effect
as of the date of this Agreement or in any indemnification agreement in
existence on the date of this Agreement with Union Planters, Regions or their
Subsidiaries and disclosed in Union Planters' Disclosure Letter or Regions'
Disclosure Letter with respect to matters occurring prior to the Effective Time
shall survive the Merger and shall continue in full force and effect, and shall
be honored by such entities or their respective successors as if they were the
indemnifying party thereunder, without any amendment thereto; provided, that
nothing contained in this Section 5.18(b) shall be deemed to preclude any
liquidation, consolidation, or merger of any Union Planters or Regions
Subsidiaries, in which case all of such rights to indemnification and
limitations on Liability shall be deemed to so survive and continue
notwithstanding any such liquidation, consolidation, or merger. Without limiting
the foregoing, in any case in which approval by Newco is required to effectuate
any indemnification, Newco 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 Newco and the Indemnified Party.
(c) Newco, from and after the Effective Time or the First
Effective Time, as the case may be, will directly or indirectly cause the
Persons who served as directors or officers of Union Planters and Regions
immediately prior to the Effective Time to be covered by Union Planters or
Regions', respectively, existing directors' and officers' liability insurance
policy with respect to acts or omissions occurring prior to the Effective Time
or the First Effective Time, as the case may be, which were committed by such
officers and directors in their capacity as such; provided, that (i) Newco may
substitute therefor policies of at least the same coverage and amounts
containing terms and conditions which are not less advantageous than such
policy, (ii) in no event shall Newco be required to expend more than 250% per
year of coverage of the amount currently expended by Union Planters and Regions
per year of coverage as of the date of this Agreement (the "Maximum Amount") to
maintain or procure insurance coverage pursuant hereto, and (iii) if
notwithstanding the use of reasonable best efforts to do so, Newco is unable to
maintain or obtain the insurance called for by this Section 5.18(c), Newco shall
obtain as much comparable insurance as available for the Maximum Amount. Such
insurance coverage shall commence at the Effective Time or the First Effective
Time, as the case may be, and will be provided for a period of no less than six
years after the Effective Time or the First Effective Time, as the case may be.
(d) Any Indemnified Party wishing to claim
indemnification under Section 5.18(a), upon learning of any claim, action, suit,
proceeding or investigation described above, shall promptly notify Newco
thereof; provided that the failure so to notify shall not affect the obligations
of Newco under Section 5.18(a) unless and to the extent that Newco is prejudiced
as a result of such failure.
(e) The provisions of this Section 5.18 are intended to
be for the benefit of and shall be enforceable by, each Indemnified Party and
his or her heirs and representatives.
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5.19 CORPORATE GOVERNANCE.
(a) Newco's by-laws at the Effective Time shall contain a
Section as set forth below (and all actions shall be taken to give effect
thereto). The provisions of this by-law shall also be considered an agreement of
the Parties in this Agreement mutatis mutandi.
BY-LAW
Section ___. CEO POSITION AND SUCCESSION; BOARD COMPOSITION.
(a) The Board of Directors of Newco has resolved that, effective
as of the Effective Time (as defined in the Agreement and Plan
of Merger, dated as of January 22, 2004, by and between
Regions Financial Corporation ("Regions") and Union Planters
Corporation ("Union Planters"), as the same may be amended
from time to time (the "Merger Agreement")), Xxxx X. Xxxxx,
Xx. shall serve as Chairman of the Board and Chief Executive
Officer of Newco and Xxxxxxx X. Xxxxx shall become the
President and Chief Executive Officer-Designate of Newco. The
Board of Directors of Newco has further resolved that Xxxxxxx
X. Xxxxx shall be the successor to Xxxx X. Xxxxx, Xx. as the
Chief Executive Officer of Newco, with such succession to
become effective on July 1, 2005 or any such earlier date as
of which Xxxx X. Xxxxx, Xx. ceases for any reason to serve in
the position of Chief Executive Officer of Newco (the date of
such succession, the "First Succession Date"), and that Xxxx
X. Xxxxx, Xx. shall continue to serve as Chairman of the Board
following the First Succession Date until June 30, 2006. The
Board of Directors has further resolved that Xxxxxxx X. Xxxxx
shall be the successor to Xxxx X. Xxxxx, Xx. as the Chairman
of the Board of Newco, with such succession to become
effective on July 1, 2006 or any such earlier date as of which
Xxxx X. Xxxxx, Xx. no longer serves as the Chairman of the
Board of Newco (the "Second Succession Date").
(b) Effective as of the Effective Time, the Board of Directors of
Newco shall be comprised of 26 directors, of which thirteen
shall be former members of the Board of Directors of Regions
chosen by Regions (the "Former Regions Directors") and
thirteen of which shall be former members of the Board of
Directors of Union Planters chosen by Union Planters (the
"Former Union Planters Directors") and the Former Regions
Directors and the Former Union Planters Directors shall be
apportioned among the three classes of the Board of Directors
in a manner as nearly equal as possible. From and after the
Effective Time through June 30, 2007, all vacancies on the
Board of Directors of Newco created by the cessation of
service of a Former Regions Director shall be filled by a
nominee proposed to the nominating committee of the Board of
Directors of Newco by a
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majority of the remaining Former Regions Directors, and all
vacancies on the Board of Directors of Newco created by the
cessation of service of a Former Union Planters Director shall
be filled by a nominee proposed to the nominating committee of
the Board of Directors of Newco by a majority of the remaining
Former Union Planters Directors, and all directors so
nominated and appointed or elected to the Board of Directors
of Newco by the Former Regions Directors shall be considered
"Former Regions Directors" for purposes of this Section ___
and all directors so nominated and appointed or elected to the
Board of Directors of Newco by the Former Union Planters
Directors shall be considered "Former Union Planters
Directors" for purposes of this Section ___.
(c) The removal of Xxxx X. Xxxxx, Xx. or Xxxxxxx X. Xxxxx from, or
the failure to appoint or re-elect Xxxx X. Xxxxx, Xx. or
Xxxxxxx X. Xxxxx to, any of the positions specifically
provided for in this Section __, and any amendment to or
termination of any employment agreement with Xxxx X. Xxxxx,
Xx. or Xxxxxxx X. Xxxxx, prior to the Second Succession Date
and any determination not to nominate Xxxx X. Xxxxx, Xx. or
Xxxxxxx X. Xxxxx as a Director of Newco, prior to the Second
Succession Date, shall each require the affirmative vote of at
least 66-2/3% of the full Board of Directors.
(d) The provisions of this Section ___ may be modified, amended or
repealed, and any By-law provision inconsistent with the
provisions of this Section ___ may be adopted, only by an
affirmative vote of at least 66-2/3% of the full Board of
Directors. In the event of any inconsistency between any
provision of this Section ___ and any other provision of these
By-laws or the Newco's other constituent documents, the
provisions of this Section ___ are intended to control.
(b) The headquarters of Newco and the lead Subsidiary
bank will be located in Birmingham, Alabama and the following business units of
Newco will be headquartered in the following places: (A) banking shall be
headquartered in Birmingham, Alabama; and (B) broker-dealer and investment
services and mortgage banking shall be headquartered in Memphis, Tennessee
unless otherwise determined in each case by the affirmative vote of at least
66-2/3% of the full Newco Board of Directors.
(c) As of the date hereof, Xxxxxxx X. Xxxxx, Union
Planters and Regions shall enter into an amendment to Xxxxxxx X. Xxxxx'x
employment agreement. Union Planters and Xxxxxxx X. Xxxxx shall also enter into
an amendment to Xxxxxxx X. Xxxxx'x Supplemental Executive Retirement Agreement.
As of the date hereof, Xxxx X. Xxxxx, Xx. and Regions shall enter into an
amendment to Xxxx X. Xxxxx, Xx.'s employment agreement. No amendment, waiver or
change may be made to any of the foregoing without the consent of Regions and
Union Planters.
(d) During each year following the Effective Time, the
Board of Directors of Newco shall hold at least two regular meetings of the
Board of Directors in Birmingham, Alabama and at least two regular meetings in
Memphis, Tennessee unless otherwise determined by the affirmative vote of at
least 66-2/3% of the full Board of Directors.
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5.20 FORMATION OF NEWCO. As soon as practicable following the date
of this Agreement, Regions and Union Planters shall cause Newco to be duly
organized under Delaware law as a direct subsidiary of Regions and Union
Planters and to become a party to this Agreement by executing and delivering a
supplement hereto, and the representations, warranties, covenants and agreements
contained herein made with respect to, or on behalf of, Newco shall be deemed to
be made as of the effective time of Newco becoming a party hereto. The Parties
agree to cause Newco to comply with all of Newco's agreements, covenants and
obligations under this Agreement and to promptly effect the Newco Stockholder
Approval. Prior to the Effective Time, the Board of Directors of Newco shall
consist of one Regions officer designated by Regions and one Union Planters
officer designated by Union Planters, and following the Effective Time, the
Board of Directors of Newco shall be constituted as provided in Section 5.19
above.
5.21 CHANGE OF METHOD. Union Planters and Regions shall be
empowered, upon their mutual agreement and without additional approval of their
respective Boards of Directors, at any time prior to the Effective Time, to
change the method of effecting the combination of Union Planters and Newco,
and/or of Regions and Newco (including the provisions of Article 1 and Article
2), if and to the extent they both deem such change to be necessary, appropriate
or desirable; provided, however, that no such change shall (i) alter or change
the Exchange Ratio or the number of shares of Newco Common Stock received by
Union Planters shareholders in exchange for each share of Union Planters Common
Stock, (ii) adversely affect the tax treatment of Union Planters' shareholders
or Regions' stockholders pursuant to this Agreement, (iii) adversely affect the
tax treatment of Union Planters or Regions pursuant to this Agreement or (iv)
materially impede or delay the consummation of the transactions contemplated by
this Agreement in a timely manner. The Parties agree to reflect any such change
in an appropriate amendment to this Agreement executed by both Parties in
accordance with Section 8.6.
5.22 RESTRUCTURING EFFORTS. If either Regions or Union Planters
shall have failed to obtain the requisite vote or votes of its Holders for the
consummation of the transactions contemplated by this Agreement at a duly held
meeting of its Holders or at any adjournment or postponement thereof, each of
the parties shall in good faith use its reasonable best efforts to negotiate a
restructuring of the transaction provided for herein (it being understood that
neither Party shall have any obligation to alter or change the amount or kind of
the merger consideration in a manner adverse to such party or its Holders)
and/or to resubmit the transaction to their respective Holders for approval.
ARTICLE 6
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
6.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The respective
obligations of each Party and Newco to perform this Agreement and to consummate
the Merger and the other transactions contemplated hereby are subject to the
satisfaction of the following conditions, unless waived by each Party pursuant
to Section 8.7:
(a) STOCKHOLDER AND SHAREHOLDER APPROVAL. Union Planters
shall have obtained the Union Planters Shareholder Approval and Regions shall
have obtained the Regions Stockholder Approval.
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(b) REGULATORY APPROVALS. All Regulatory Consents
required to consummate the Merger (the "Required Consents") shall (i) have been
obtained or made and be in full force and effect and all waiting periods
required by Law shall have expired and (ii) not be subject to any term or
condition that would, after the Effective Time, have or be reasonably likely to
have, a Material Adverse Effect on Newco.
(c) NO ORDERS OR RESTRAINTS; ILLEGALITY. No Order issued
by any Governmental Authority (whether temporary, preliminary, or permanent)
preventing the consummation of the First Step Merger or the Second Step Merger
shall be in effect and no Law or Order shall have been enacted, entered,
promulgated or enforced by any Governmental Authority that prohibits, restrains,
or makes illegal the consummation of the First Step Merger or the Second Step
Merger.
(d) REGISTRATION STATEMENT. The Registration Statement
shall be effective under the 1933 Act, no stop orders suspending the
effectiveness of the Registration Statement shall have been issued, and no
action, suit, proceeding, or investigation by the SEC or any other Governmental
Authority to suspend the effectiveness thereof shall have been initiated and be
continuing or be threatened.
(e) LISTING OF NEWCO COMMON STOCK. The shares of Newco
Common Stock to be issued to the holders of Union Planters Common Stock and
Regions Common Stock upon consummation of the Merger shall have been authorized
for listing on the NYSE, subject to official notice of issuance.
6.2 CONDITIONS TO OBLIGATIONS OF REGIONS. The obligations of
Regions to perform this Agreement and consummate the First Step Merger and the
other transactions contemplated hereby are subject to the satisfaction of the
following conditions, unless waived by Regions pursuant to Section 8.7:
(a) REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Union Planters and Newco set forth in this Agreement, after
giving effect to Sections 4.1 and 4.2, shall be true and correct as of the date
of this Agreement and as of the Closing Date as though made at and as of the
Closing Date (except that representations and warranties that by their terms
speak specifically as of the date of this Agreement or some other date shall be
true and correct as of such date) and Regions shall have received certificates,
dated the Closing Date, signed on behalf of Union Planters by the Chief
Executive Officer and Chief Financial Officer of Union Planters and signed on
behalf of Newco to such effect.
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Union
Planters and Newco shall have duly performed and complied with the agreements
and covenants required to be performed and complied with by it pursuant to this
Agreement prior to the Effective Time in all material respects and Regions shall
have received a certificate, dated the Closing Date, signed on behalf of Union
Planters by the Chief Executive Officer and Chief Financial Officer of Union
Planters, to such effect.
(c) TAX OPINION. Regions shall have received a written
opinion from Xxxxxx & Bird LLP in a form reasonably satisfactory to Regions,
dated the date of the Effective Time,
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substantially to the effect that, (i) each of the First Step Merger and the
Second Step Merger will constitute a reorganization within the meaning of
Section 368(a) of the Internal Revenue Code, (ii) each of Regions and Newco will
be a party to that reorganization within the meaning of Section 368(b) of the
Internal Revenue Code in respect of the First Step Merger and each of Union
Planters and Newco will be a party to the reorganization in respect of the
Second Step Merger, and (iii) no gain or loss will be recognized by holders of
Regions Common Stock who exchange all of their Regions Common Stock solely for
Newco Common Stock pursuant to the First Step Merger. In rendering such opinion,
such counsel shall be entitled to rely upon representations of officers of
Regions reasonably satisfactory in form and substance to such counsel.
(d) EFFECTIVE TIME. All actions shall have been taken,
and all conditions satisfied, for the Effective Time to occur (unless the
failure to be so satisfied is a result of actions or omissions by Regions).
6.3 CONDITIONS TO OBLIGATIONS OF UNION PLANTERS. The obligations
of Union Planters to perform this Agreement and consummate the Second Step
Merger and the other transactions contemplated hereby are subject to the
satisfaction of the following conditions, unless waived by Union Planters
pursuant to Section 8.7:
(a) REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Regions and Newco set forth in this Agreement, after giving
effect to Sections 4.1 and 4.2, shall be true and correct as of the date of this
Agreement and as of the Closing Date as though made at and as of the Closing
Date (except that representations and warranties that by their terms speak
specifically as of the date of this Agreement or some other date shall be true
and correct as of such date) and Union Planters shall have received
certificates, dated the Closing Date, signed on behalf of Regions by the Chief
Executive Officer and Chief Financial Officer of Regions and signed on behalf of
Newco to such effect.
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Regions and
Newco shall have duly performed and complied with the agreements and covenants
required to be performed and complied with by it pursuant to this Agreement
prior to the Effective Time in all material respects and Union Planters shall
have received a certificate, dated the Closing Date, signed on behalf of Regions
by the Chief Executive Officer and Chief Financial Officer of Regions, to such
effect.
(c) TAX OPINION. Union Planters shall have received a
written opinion from Xxxxxx & Bird LLP in a form reasonably satisfactory to
Union Planters, dated the date of the Effective Time, substantially to the
effect that, (i) each of the First Step Merger and the Second Step Merger will
constitute a reorganization within the meaning of Section 368(a) of the Internal
Revenue Code, (ii) each of Regions and Newco will be a party to that
reorganization within the meaning of Section 368(b) of the Internal Revenue Code
in respect of the First Step Merger and each of Union Planters and Newco will be
a party to the reorganization in respect of the Second Step Merger, and (iii) no
gain or loss will be recognized by holders of Union Planters Common Stock who
exchange all of their Union Planters Common Stock solely for Newco Common Stock
pursuant to the Second Step Merger. In rendering such opinion, such counsel
shall be
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entitled to rely upon representations of officers of Union Planters reasonably
satisfactory in form and substance to such counsel.
(d) CONSUMMATION OF THE FIRST STEP MERGER. The First
Effective Time shall have occurred and the First Step Merger shall have been
consummated and the covenant set forth in Section 5.19(a) shall have been
satisfied in all respects (unless the failure to be so satisfied is as a result
of actions or omissions by Union Planters).
ARTICLE 7
TERMINATION
7.1 TERMINATION. Notwithstanding any other provision of this
Agreement, and notwithstanding the Union Planters Shareholder Approval and
Regions Stockholder Approval, this Agreement may be terminated and the Merger
abandoned at any time prior to the First Effective Time:
(a) By mutual consent of the Board of Directors
of both Parties; or
(b) By the Board of Directors of either Party in
the event of a breach of any representation, warranty, covenant or
agreement contained in this Agreement on the part of the other Party,
which breach would result in, if occurring or continuing on the Closing
Date, the failure of the conditions to the terminating Party's
obligations set forth in Section 6.2 or 6.3, as the case dictates, and
which cannot be or has not been cured within 30 days after the giving
of written notice to the breaching Party of such breach; or
(c) By the Board of Directors of either Party in
the event that any Required Consent has been denied by final
nonappealable action of such authority; or
(d) By the Board of Directors of either Party in
] the event that the Merger has not been consummated by December 31,
2004 (the "Termination Date"), if the failure to consummate the
transactions contemplated hereby on or before such date is not caused
by any breach of this Agreement by the Party electing to terminate
pursuant to this Section 7.1; or
(e) By the Board of Directors of either Party in
the event that (i) the Board of Directors of the other Party has failed
to recommend that its shareholders vote in favor of this Agreement or
has withdrawn, modified or qualified such recommendation in a manner
adverse to the terminating Party, (ii) the other Party has failed to
substantially comply with its obligations under Section 5.6 or 5.13, or
(iii) the Board of Directors of the other Party has recommended or
endorsed an Acquisition Proposal; or
(f) By the Board of Directors of either Party,
if it determines in good faith by a majority vote that the other Party
has substantially engaged in bad faith in breach of its obligations
under Section 5.22 of this Agreement.
7.2 EFFECT OF TERMINATION. In the event of the termination and
abandonment of this Agreement pursuant to Section 7.1, this Agreement shall
become void and have no effect, and none of Regions, Union Planters, any of
their respective Subsidiaries, or any of the officers or
- 40 -
directors of any of them, shall have any Liability of any nature whatsoever
hereunder or in conjunction with the transactions contemplated hereby, except
that (a) the provisions of Sections 4.3(q) and 5.11(b), this Section 7.2, and
Article 8 shall survive any such termination and abandonment, and (b) a
termination of this Agreement shall not relieve the breaching Party from
Liability for any uncured willful breach of a representation, warranty,
covenant, or agreement of such Party contained in this Agreement.
ARTICLE 8
MISCELLANEOUS
8.1 DEFINITIONS.
(a) Except as otherwise provided herein, the capitalized
terms set forth below shall have the following meanings:
"1933 ACT" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"1934 ACT" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
"ACQUISITION PROPOSAL" shall mean, other than the
transactions contemplated by this Agreement, any offer, proposal or
inquiry relating to, or any third party indication of interest in, (i)
any acquisition or purchase, direct or indirect, of 25% or more of the
consolidated assets of a Party and its Subsidiaries or 25% or more of
any class of equity or voting securities of a Party or its Subsidiaries
whose assets, individually or in the aggregate, constitute more than
25% of the consolidated assets of the Party, (ii) any tender offer
(including a self-tender offer) or exchange offer that, if consummated,
would result in such third party beneficially owning 25% or more of any
class of equity or voting securities of a Party or its Subsidiaries
whose assets, individually or in the aggregate, constitute more than
25% of the consolidated assets of the Party, or (iii) a merger,
consolidation, share exchange, business combination, reorganization,
recapitalization, liquidation, dissolution or other similar transaction
involving a Party or its Subsidiaries whose assets, individually or in
the aggregate, constitute more than 30% of the consolidated assets of
the Party.
"AFFILIATE" of a Person shall mean any other Person
directly, or indirectly through one or more intermediaries,
controlling, controlled by or under common control with such Person.
"BHC ACT" shall mean the federal Bank Holding Company
Act of 1956, as amended.
"COMPENSATION AND BENEFIT PLAN" shall mean any
pension, retirement, profit-sharing, deferred compensation, stock
option, employee stock ownership, severance pay, vacation, bonus, or
other incentive plan, any other employee program or agreement, any
medical, vision, dental, or other written health plan, any life
insurance plan, and any other employee benefit plan or fringe benefit
plan, including any
- 41 -
"employee benefit plan" (as that term is defined in Section 3(3) of
ERISA), maintained by, sponsored in whole or in part by, or contributed
to by a Party for the benefit of its and its Subsidiaries' employees,
retirees, dependents, spouses, directors, independent contractors, or
other beneficiaries and under which such employees, retirees,
dependents, spouses, directors, independent contractors, or other
beneficiaries are eligible to participate and, except for the purposes
of Section 5.17, any employment, severance, termination, consulting or
retirement Contract with its or its Subsidiaries' current or former
employees.
"CONFIDENTIALITY AGREEMENT" shall mean that certain
Confidentiality Agreement, dated November 25, 2003, by and between
Regions and Union Planters.
"CONSENT" shall mean any consent, approval,
authorization, clearance, exemption, waiver, or similar affirmation by
any Person pursuant to any Contract, Law, Order, or Permit.
"CONTRACT" shall mean any written or oral agreement,
arrangement, commitment, contract, indenture, instrument, lease,
understanding, or undertaking of any kind or character to which any
Person is a party or that is binding on any Person or its capital
stock, assets, or business.
"DEFAULT" shall mean (i) any breach or violation of
or default under any Contract, Law, Order, or Permit, (ii) any
occurrence of any event that with the passage of time or the giving of
notice or both would constitute a breach or violation of or default
under any Contract, Law, Order, or Permit, or (iii) any occurrence of
any event that with or without the passage of time or the giving of
notice would give rise to a right to terminate or revoke, change the
current terms of, or renegotiate, or to accelerate, increase, or impose
any Liability under, any Contract, Law, Order, or Permit.
"DGCL" shall mean the Delaware General Corporation
Law, as amended.
"ENVIRONMENTAL LAWS" shall mean all Laws relating to
pollution or protection of human health or the environment (including
ambient air, surface water, ground water, land surface, or subsurface
strata) and which are administered, interpreted, or enforced by the
United States Environmental Protection Agency and state and local
agencies with jurisdiction over, and including common Law in respect
of, pollution or protection of the environment, including CERCLA, the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6901, et
seq., and any other Laws relating to emissions, discharges, releases,
or threatened releases of any Hazardous Material, or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of any Hazardous Material.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
"ERISA PLAN" shall mean any Compensation and Benefit
Plan which is an "employee welfare benefit plan," as that term is
defined in Section 3(1) of ERISA, or an "employee pension benefit
plan," as that term is defined in Section 3(2) of ERISA.
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"EXCHANGE AGENT" shall mean an exchange agent
mutually agreed upon by Regions and Union Planters, which may be an
Affiliate of Regions.
"EXCHANGE RATIO" shall mean 1.2346.
"EXHIBITS" 1 through 2, inclusive, shall mean the
Exhibits so marked, copies of which are attached to this Agreement.
Such Exhibits are hereby incorporated by reference herein and made a
part hereof, and may be referred to in this Agreement and any other
related instrument or document without being attached hereto.
"FACILITIES" shall mean all buildings and
improvements on the Property of any Person and any of its Subsidiaries.
"FINANCIAL STATEMENTS" shall mean (i) the
consolidated statements of condition or balance sheets (including
related notes and schedules, if any) of a Party included in any SEC
Report filed by a Party, and the related statements of income, changes
in shareholders' equity, and cash flows (including related notes and
schedules, if any) included in any SEC Report filed by a Party, and
(ii) the consolidated statements of condition or balance sheets of a
Party (including related notes and schedules, if any), and related
statement of income, change in shareholders' equity, and cash flows
(including related notes and schedules, if any) included in its SEC
Reports.
"GAAP" shall mean United States generally accepted
accounting principles, consistently applied during the periods
involved.
"GOVERNMENTAL AUTHORITY" shall mean each Regulatory
Authority and any other domestic or foreign court, administrative
agency, commission or other governmental authority or instrumentality
(including the staff thereof), or any industry self-regulatory
authority (including the staff thereof).
"HAZARDOUS MATERIAL" shall mean (i) any hazardous
substance, hazardous material, hazardous waste, regulated substance, or
toxic substance (as those terms are defined by any applicable
Environmental Laws), and (ii) any chemicals, pollutants, contaminants,
petroleum, petroleum products that are or become regulated under any
applicable local, state, or federal Law (and specifically shall include
asbestos requiring abatement, removal, or encapsulation pursuant to the
requirements of governmental authorities, black mold and any
polychlorinated biphenyls).
"HSR ACT" shall mean Section 7A of the Xxxxxxx Act,
as added by Title II of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, and the rules and regulations promulgated
thereunder.
"INTELLECTUAL PROPERTY" shall mean all patents,
trademarks, trade names, service marks, domain names, database rights,
copyrights, and any applications therefor, mask works, technology,
know-how, Trade Secrets, inventory, ideas, algorithms, processes,
computer software programs or applications (in both source code and
object code form), and tangible or intangible proprietary information
or material and all other intellectual property or proprietary rights.
- 43 -
"INTERNAL REVENUE CODE" shall mean the Internal
Revenue Code of 1986, as amended, and the rules and regulations
promulgated thereunder.
"JOINT PROXY STATEMENT/PROSPECTUS" shall mean the
joint proxy statement and prospectus and other proxy solicitation
materials of Regions and Union Planters constituting a part of the
Registration Statement.
"LAW" shall mean any code, law (including common
law), ordinance, regulation, rule, or statute applicable to a Person or
its assets, Liabilities, or business, including those promulgated,
interpreted, or enforced by any Governmental Authority.
"LIABILITY" shall mean any direct or indirect,
primary or secondary, liability, indebtedness, obligation, penalty,
cost, or expense (including costs of investigation, collection, and
defense), claim, deficiency, or guaranty of any type, whether accrued,
absolute or contingent, liquidated or unliquidated, matured or
unmatured, or otherwise.
"LIEN" shall mean any mortgage, pledge, reservation,
restriction (other than a restriction on transfers arising under the
Securities Laws), security interest, lien, or encumbrance of any nature
whatsoever of, on, or with respect to any property or property
interest, other than (i) Liens for property Taxes not yet due and
payable and (ii) in the case of depository institution Subsidiaries of
a Party, pledges to secure deposits.
"LITIGATION" shall mean any action, arbitration,
cause of action, claim, complaint, criminal prosecution, demand letter,
governmental or other examination or investigation, hearing, inquiry,
administrative or other proceeding, suit or notice (written or oral) by
any Person alleging potential Liability, but shall not include regular,
periodic examinations by Regulatory Authorities.
"NASD" shall mean the National Association of
Securities Dealers, Inc.
"NEWCO COMMON STOCK" shall mean the common stock of
Newco.
"NYSE" shall mean the New York Stock Exchange, Inc.
"ORDER" shall mean any administrative decision or
award, decree, injunction, judgment, order, quasi-judicial decision or
award, ruling, or writ of any federal, state, local, or foreign or
other court, arbitrator, mediator, tribunal, administrative agency, or
Governmental Authority.
"ORGANIZATIONAL DOCUMENTS" shall mean the articles of
incorporation, certificate of incorporation, charter, by-laws or other
similar governing instruments, in each case as amended as of the date
specified, of any Person, including the Union Planters Amended and
Restated Charter and the Regions Restated Certificate of Incorporation.
"OUTSTANDING" shall mean, with respect to shares of
capital stock of a Party, shares of such capital stock that are issued
and outstanding at a particular time.
- 44 -
"PARTY" shall mean either Regions or Union Planters,
and "PARTIES" shall mean both Regions and Union Planters.
"PENSION PLAN" shall mean any ERISA Plan which is
also subject to Section 412 of the Internal Revenue Code or Section 302
of ERISA.
"PERMIT" shall mean any federal, state, local, and
foreign governmental approval, authorization, certificate, easement,
filing, franchise, license, order or permit from Governmental
Authorities that are required for the operation of a Party's respective
businesses.
"PERMITTED ISSUANCES" shall mean (a) in the case of
Regions, (i) issuances of Regions Common Stock upon exercise of Rights
outstanding as of the date hereof issued under the Regions Stock Plans,
(ii) issuances of new Rights pursuant to and in accordance with the
Regions Stock Plans for up to 105% of the number by type (i.e.,
options, restricted stock) of Rights issued by Regions during the
twelve months prior to the date hereof, provided that (A) such new
issuances are in the ordinary course of business and consistent with
past practice in terms of the timing, type, terms and amount of such
issuances and (B) such Rights do not vest in connection with the
transactions contemplated by this Agreement, (iii) issuances of Regions
Common Stock in accordance with the Regions Stock Plans pursuant to
Rights outstanding as of the date hereof and (ii) Rights issued under
(a)(ii) above, and (iv) issuances of Regions Common Stock pursuant to
the Regions DRIP to the extent permitted hereunder; and (b) in the case
of Union Planters, (i) issuances of Union Planters Common Stock upon
conversion of Union Planters Series E Preferred Stock, (ii) issuances
of Union Planters Common Stock upon exercise of Rights outstanding as
of the date hereof issued under the Union Planters Stock Plans, (iii)
issuances of new Rights pursuant to and in accordance with the Union
Planters Stock Plans for up to 105% of the number by type (i.e.,
options, restricted stock) of Rights issued by Union Planters during
the twelve months prior to the date hereof, provided that (A) such
issuances are in the ordinary course of business and consistent with
past practice in terms of the timing, type, terms and amount of such
issuances and (B) such Rights do not vest in connection with the
transactions contemplated by this Agreement, (iv) issuances of Union
Planters Common Stock pursuant to the Union Planters DRIP to the extent
permitted hereunder, and (v) issuances of Union Planters Common Stock
in accordance with the Union Planters Stock Plans pursuant to Rights
outstanding as of the date hereof and Rights issued under (b)(iii)
above.
"PERMITTED REPURCHASES" shall mean (a) repurchases of
Regions Capital Stock or Union Planters Capital Stock in accordance
with any stock repurchase program announced prior to the date of this
Agreement by a Party, or any extension or renewal of such program, and
(b) repurchases or redemptions (including any cancellation upon
conversion into Union Planters Common Stock) of the issued and
outstanding shares of Union Planters Series E Preferred Stock in
accordance with Section 5.4.
- 45 -
"PERSON" shall mean a natural person or any legal,
commercial, or governmental entity, including, a corporation, general
partnership, joint venture, limited partnership, limited liability
company, trust, business association, group acting in concert, or any
person acting in a representative capacity.
"PROPERTY" shall mean all real property leased or
owned by any Person and its Subsidiaries, either currently or in the
past.
"REGIONS CAPITAL STOCK" shall mean Regions Common
Stock and Regions Preferred Stock.
"REGIONS COMMON STOCK" shall mean the $0.625 par
value per share common stock of Regions.
"REGIONS PREFERRED STOCK" shall mean the $1.00 par
value per share preferred stock of Regions.
"REGIONS RESTATED CERTIFICATE OF INCORPORATION" shall
mean the restated certificate of incorporation of Regions in effect as
of the date of this Agreement and amended from time to time thereafter.
"REGIONS STOCK PLAN" shall mean any equity
compensation plan of Regions.
"REGISTRATION STATEMENT" shall mean the Registration
Statement on Form S-4, or other appropriate form, including any
pre-effective or post-effective amendments or supplements thereto,
filed with the SEC by Newco under the 1933 Act with respect to the
shares of Newco Common Stock to be issued to the shareholders of Union
Planters and Regions in connection with the transactions contemplated
by this Agreement.
"REGULATORY AUTHORITIES" shall mean, collectively,
the Federal Trade Commission, the United States Department of Justice,
the Board of the Governors of the Federal Reserve System, the Office of
the Comptroller of the Currency, the Federal Deposit Insurance
Corporation, the Office of Thrift Supervision, the Internal Revenue
Service, the PBGC, all state regulatory agencies having jurisdiction
over the Parties and their respective Subsidiaries, the NASD, the NYSE,
and the SEC (including, in each case, the staff thereof).
"REPRESENTATIVE" shall mean any investment banker,
financial advisor, attorney, accountant, consultant, agent or other
representative of a Person.
"RIGHTS" shall mean, with respect to any Person,
securities, or obligations convertible into or exercisable or
exchangeable for, or giving any Person any right to subscribe for or
acquire, or any options, calls, restricted stock, deferred stock
awards, stock units, phantom awards, dividend equivalents, or
commitments relating to, or any stock appreciation right or other
instrument the value of which is determined in whole or in part by
reference to the market price or value of, shares of capital stock or
earnings of
- 46 -
such Person, and shall include the Regions Stock Options, Regions
Stock-Based Awards, Union Planters Stock Options and Union Planters
Stock-Based Awards, but shall not include the Union Planters
Shareholder Rights.
"SEC" shall mean the United States Securities and
Exchange Commission.
"SEC DOCUMENTS" shall mean all forms, proxy
statements, registration statements, offering circulars, information
statements, reports, schedules, and other documents filed, or required
to be filed, by a Party or any of its Subsidiaries with the SEC.
"SECURITIES LAWS" shall mean the 1933 Act, the 1934
Act, the Company Act, the Investment Advisers Act, the Trust Indenture
Act of 1939, each as amended, state securities and "Blue Sky" Laws,
including in each case the rules and regulations of any Governmental
Authority promulgated thereunder.
"SUBSIDIARY" or "SUBSIDIARIES" shall have the meaning
assigned in Rule 1-02(x) of Regulation S-X of the SEC; provided that
there shall not be included any such entity acquired through
foreclosure or any such entity the equity securities of which are owned
or controlled in a fiduciary capacity.
"TAX" or "TAXES" shall mean all federal, state,
local, and foreign taxes, levies, imposts, duties, or other like
assessments, including income, gross receipts, excise, employment,
sales, use, transfer, license, payroll, franchise, severance, stamp,
occupation, windfall profits, environmental, federal highway use,
commercial rent, customs duties, capital stock, paid-up capital,
profits, withholding, Social Security, single business and
unemployment, disability, real property, personal property,
registration, ad valorem, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any related
interest and penalties, or additions thereto.
"TAX RETURN" shall mean any report, return,
information return, or other information required to be supplied to a
Taxing authority in connection with Taxes, including any return of an
Affiliated or combined or unitary group that includes a Party or its
Subsidiaries.
"TAXABLE PERIOD" shall mean any period prescribed by
any governmental authority, including the United States or any state,
local, or foreign government or subdivision or agency thereof for which
a Tax Return is required to be filed or Tax is required to be paid.
"TBCA" shall mean the Tennessee Business Corporation
Act, as amended.
"TECHNOLOGY SYSTEMS" shall mean the electronic data
processing, information, record keeping, communications,
telecommunications, hardware, third party software, networks,
peripherals, portfolio trading and computer systems, including any
- 47 -
outsourced systems and processes, and Intellectual Property which are
used by Person and its Subsidiaries.
"TENNESSEE CODE" shall mean the Tennessee Code, as
amended.
"TERMINATION FEE" shall mean $225,000,000 for any
payments by Union Planters, and $320,000,000 for any payments by
Regions.
"TRADE SECRETS" means all trade secrets and
confidential information and know-how, including without limitation
processes, schematics, business methods, formulae, drawings,
prototypes, models, designs, customer lists and supplier lists.
"UNION PLANTERS AMENDED AND RESTATED CHARTER" shall
mean the amended and restated charter of Union Planters in effect as of
the date of this Agreement and as amended from time to time thereafter.
"UNION PLANTERS CAPITAL STOCK" shall mean the Union
Planters Common Stock and the Union Planters Preferred Stock.
"UNION PLANTERS COMMON STOCK" shall mean the $5.00
par value per share common stock of Union Planters, together with the
Union Planters Shareholder Rights attached thereto pursuant to the
Union Planters Rights Plan.
"UNION PLANTERS PREFERRED STOCK" shall mean the
preferred stock, no par value, of Union Planters, including without
limitation the Union Planters Series E Preferred Stock and the Union
Planters Series F Preferred Stock.
"UNION PLANTERS RIGHTS PLAN" shall mean that certain
Rights Agreement dated as of January 19, 1999, by and between Union
Planters and Union Planters Bank, National Association, as Rights
Agent, as amended by the Amendment to Rights Agreement, dated as of
December 3, 2001, by and between Union Planters and American Stock
Transfer & Trust Company as Rights Agent.
"UNION PLANTERS SERIES E PREFERRED STOCK" shall mean
the Series E Preferred Stock, no par value, of Union Planters.
"UNION PLANTERS SERIES F PREFERRED STOCK" shall mean
the Series F Preferred Stock, no par value, of Union Planters.
"UNION PLANTERS SHAREHOLDER RIGHTS" shall mean the
preferred stock purchase rights issued pursuant to the Union Planters
Rights Plan.
(b) The terms set forth below shall have the meanings
ascribed thereto in the referenced sections:
Agreement............................................... Preamble
Available Regions Stock Plan Shares..................... Section 1.6(d)
Available Union Planters Stock Plan Shares.............. Section 2.6(d)
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CERCLA.................................................. Section 4.3(h)
Closing................................................. Section 2.2
Closing Date............................................ Section 2.2
Continuing Employees.................................... Section 5.17(b)
Covered Parties......................................... Section 5.18(b)
Delaware Secretary...................................... Section 1.2
Disclosure Letter....................................... Section 4.1
Effective Time.......................................... Section 2.3
ERISA Affiliate......................................... Section 4.3(k)(v)
Exchange Fund........................................... Section 3.1(a)
FDIC.................................................... Section 4.3(i)(iii)
First Effective Time.................................... Section 1.2
First Step Merger....................................... Section 1.1
First Succession Date................................... Section 5.19(a)
Former Regions Directors................................ Section 5.19(b)
Former Union Planters Directors......................... Section 5.19(b)
Holder.................................................. Section 3.1(b)
Indemnified Parties..................................... Section 5.18(a)
Material Adverse Effect................................. Section 4.2(b)
Maximum Amount.......................................... Section 5.18(c)
Merger.................................................. Section 2.1
New Certificates........................................ Section 3.1(a)
Newco................................................... Recitals
Newco Stock Option...................................... Section 1.6(a)
Newco Stock-Based Award................................. Section 1.6(b)
Newco Stockholder Approval.............................. Section 4.3(b)(i)(C)
Old Certificates........................................ Section 2.4(b)
Old Regions Certificates................................ Section 1.3(b)
Old Union Planters Certificates......................... Section 2.4(b)
PBGC.................................................... Section 4.3(b)(iv)
PCBs.................................................... Section 4.3(h)
Regions................................................. Preamble
Regions DRIP............................................ Section 1.6(f)
Regions Insiders........................................ Section 5.15
Regions Stock Option.................................... Section 1.6(a)
Regions Stock-Based Award............................... Section 1.6(b)
Regions Stockholder Approval............................ Section 4.3(b)(i)(B)
Regulatory Consents..................................... Section 5.9(b)
Required Consents....................................... Section 6.1(b)
Second Step Merger...................................... Section 2.1
Second Succession Date.................................. Section 5.19(a)
SEC Reports............................................. Section 4.3(d)(i)
Takeover Laws........................................... Section 4.3(p)
Tennessee Secretary..................................... Section 2.3
Termination Date........................................ Section 7.1(d)
Union Planters.......................................... Preamble
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Union Planters DRIP..................................... Section 2.6(f)
Union Planters Insiders................................. Section 5.15
Union Planters Shareholder Approval..................... Section 4.3(b)(i)(A)
Union Planters Stock Option............................. Section 2.6(a)
Union Planters Stock Plan............................... Section 2.6(a)
Union Planters Stock-Based Award........................ Section 2.6(b)
(c) Any singular term in this Agreement shall be deemed
to include the plural, and any plural term the singular. Whenever the words
"include," "includes," or "including" are used in this Agreement, they shall be
deemed followed by the words "without limitation." The words "hereby," "herein,"
"hereof" or "hereunder," and similar terms are to be deemed to refer to this
Agreement as a whole and not to any specific section.
8.2 NON-SURVIVAL OF REPRESENTATIONS AND COVENANTS. Except for
Article 1, Article 2 and Article 3, Sections 5.5(d), 5.11(b) and 5.19, and this
Article 8, the respective representations, warranties, obligations, covenants,
and agreements of the Parties and Newco shall be deemed only to be conditions of
the Merger and shall not survive the Effective Time.
8.3 EXPENSES.
(a) Except as otherwise provided in this Section 8.3 or
in Section 8.4, each of the Parties and Newco shall bear and pay all costs and
expenses incurred by it or on its behalf in connection with the transactions
contemplated hereunder, including filing, registration, and application fees,
printing fees, and fees and expenses of its own financial or other consultants,
investment bankers, accountants, and counsel, except that the Parties shall each
bear and pay one-half of the filing fees payable in connection with the
Registration Statement and the Joint Proxy Statement/Prospectus and one half of
the printing costs incurred in connection with the printing of the Registration
Statement and the Joint Proxy Statement/Prospectus.
(b) Nothing contained in this Section 8.3 shall
constitute or shall be deemed to constitute liquidated damages for the willful
breach by a Party or Newco of the terms of this Agreement or otherwise limit the
rights of the non-breaching Party or Newco.
8.4 TERMINATION FEE.
(a) In the event that (i) Regions or Union Planters,
respectively, shall terminate this Agreement pursuant to Sections 7.1(d) or
7.1(e)(i) or (ii), (ii) the Union Planters Shareholder Approval shall not have
been obtained by reason of the failure to obtain the required vote at the Union
Planters shareholders' meeting where this Agreement was presented to such
shareholders for approval and voted upon or the Regions Stockholder Approval has
not been obtained by reason of the failure to obtain the required vote at the
Regions stockholders' meeting where this Agreement was presented to such
stockholders for approval and voted upon, (iii) at any time after the date of
this Agreement and prior to such vote there shall have been publicly announced
an Acquisition Proposal with respect to Union Planters or Regions, respectively,
that has not been formally and absolutely withdrawn or abandoned prior to such
termination, and (iv) within 12 months following such termination an Acquisition
Proposal with respect to Union
- 50 -
Planters or Regions, respectively, is consummated or a definitive agreement or
letter of intent is entered into by Union Planters or Regions, respectively,
with respect to an Acquisition Proposal, Union Planters or Regions,
respectively, shall pay Regions or Union Planters, respectively, the terminating
Party the Termination Fee within five business days after the date of the event
described in clause (iv), by wire transfer of immediately available funds.
(b) In the event that (i) either Party shall terminate
this Agreement pursuant to Sections 7.1(d) or 7.1(f), (ii) at any time after the
date of this Agreement and prior to such termination there shall have been
publicly announced an Acquisition Proposal with respect to the other Party that
has not been formally and absolutely withdrawn or abandoned prior to such
termination, (iii) following the announcement of such Acquisition Proposal, the
other Party shall have either (x) engaged in a bad faith breach of its
obligations under Section 5.22 of this Agreement or (y) intentionally breached
(and not cured after notice thereof) any of its representations, warranties,
covenants or agreements set forth in this Agreement, which breach (in the case
of this clause (y)) shall have materially contributed to the failure of the
Effective Time to occur on or before the Termination Date, and (iv) within 12
months following such termination an Acquisition Proposal with respect to such
Party is consummated or a definitive agreement or letter of intent is entered
into by such Party with respect to an Acquisition Proposal, such Party shall pay
the terminating Party the Termination Fee within five business days after the
date of the event described in clause (iv), by wire transfer of immediately
available funds.
(c) In the event that either Party shall terminate this
Agreement pursuant to Sections 7.1(e)(iii), then, in each case, the other Party
shall pay to the terminating Party the Termination Fee on the date this
Agreement is terminated, by wire transfer of immediately available funds.
(d) The Parties hereby acknowledge that the agreements
contained in this Section 8.4 are an integral part of the transactions
contemplated by this Agreement and that, without these agreements, neither Party
would enter into this Agreement. In the event that either Party fails to pay
when due any amount payable under this Section 8.4, then (i) the defaulting
Party shall reimburse the other Party for all costs and expenses (including
disbursements and reasonable fees of counsel) incurred in connection with the
collection of such overdue amount, and (ii) the defaulting Party shall pay to
the other Party interest on such overdue amount (for the period commencing as of
the date such overdue amount was originally required to be paid and ending on
the date such overdue amount is actually paid in full) at a rate per annum equal
to three percent (3%) over the "prime rate" (as announced by Citibank, N.A.) in
effect on the date such overdue amount was originally required to be paid.
(e) A Party shall only be obligated to pay one
Termination Fee.
8.5 ENTIRE AGREEMENT. Except as otherwise expressly provided
herein, this Agreement (including the Disclosure Letters and Exhibits)
constitutes the entire agreement between the Parties and Newco with respect to
the transactions contemplated hereunder and supersedes all prior arrangements or
understandings with respect thereto, written or oral, other than the
Confidentiality Agreement, which shall remain in effect. Nothing in this
Agreement expressed or implied, is intended to confer upon any Person, other
than the Parties or Newco or
- 51 -
their respective successors, any rights, remedies, obligations, or liabilities
under or by reason of this Agreement except as provided in Sections 5.18 and
5.19.
8.6 AMENDMENTS. Before the Effective Time, this Agreement may be
amended by a subsequent writing signed by each of the Parties and Newco, whether
before or after the Union Planters Shareholder Approval or Regions Stockholder
Approval has been obtained, except to the extent that any such amendment would
violate applicable Law or would require the approval of the shareholders of
Union Planters or stockholders of Regions, unless such required approval is
obtained.
8.7 WAIVERS.
(a) Prior to or at the Effective Time, either Party or
Newco shall have the right to waive any Default in the performance of any term
of this Agreement by the other Party or Newco, to waive or extend the time for
the compliance or fulfillment by the other Party or Newco of any and all of such
other Party's or Newco's obligations under this Agreement, and to waive any or
all of the conditions precedent to its obligations under this Agreement, except
any condition which, if not satisfied, would result in the violation of any Law.
No waiver by a Party or Newco shall be effective unless in writing signed by a
duly authorized officer of such Party or Newco.
(b) The failure of any Party or Newco at any time or
times to require performance of any provision hereof shall in no manner affect
the right of such Party or Newco at a later time to enforce the same or any
other provision of this Agreement. No waiver of any condition or of the breach
of any term contained in this Agreement in one or more instances shall be deemed
to be or construed as a further or continuing waiver of such condition or breach
or a waiver of any other condition or of the breach of any other term of this
Agreement.
8.8 ASSIGNMENT. Except as expressly contemplated hereby, neither
this Agreement nor any of the rights, interests, or obligations hereunder shall
be assigned by any Party or Newco (whether by operation of Law or otherwise)
without the prior written consent of each other party. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of, and be
enforceable by the parties and their respective successors and assigns.
8.9 NOTICES. All notices or other communications which are
required or permitted hereunder shall be in writing and sufficient if delivered
by hand, by facsimile transmission, by registered or certified mail, postage
pre-paid, or by courier or overnight carrier, to the Persons at the addresses
set forth below (or at such other address as may be provided hereunder), and
shall be deemed to have been delivered as of the date so delivered:
Union Planters: Union Planters Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
Chief Executive Officer
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Copy to Counsel: 0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopy Number: (000) 000-0000
Attention: X. Xxxxx House, Jr., Esq.
General Counsel
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Regions: Regions Financial Corporation
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
Telecopy Number: (000) 000-0000
Attention: Xxxx X. Xxxxx, Xx.
Chief Executive Officer
Copy to Counsel: 000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
Telecopy Number: (000) 000-0000
Attention: R. Xxxx Deer, Esq.
General Counsel
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy Number: (000) 000-0000
Attention: H. Xxxxxx Xxxxx, Esq.
Xxxx X. Xxxxxxx, Esq.
8.10 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the Laws of the State of Delaware, without regard
to any applicable principles of conflicts of Laws, except to the extent that the
Laws of the State of Tennessee relate to the consummation of the Merger.
8.11 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument, and which counterparts
may be delivered by facsimile.
8.12 CAPTIONS. The captions contained in this Agreement are for
reference purposes only and are not part of this Agreement.
- 53 -
8.13 INTERPRETATIONS. Neither this Agreement nor any uncertainty or
ambiguity herein shall be construed or resolved against any Party or Newco,
whether under any rule of construction or otherwise. No party to this Agreement
shall be considered the draftsman. The Parties and Newco acknowledge and agree
that this Agreement has been reviewed, negotiated, and accepted by all Parties
and their attorneys and shall be construed and interpreted according to the
ordinary meaning of the words used so as fairly to accomplish the purposes and
intentions of the Parties and Newco. Nothing contained herein shall require any
Party or person to take any action of any type in violation of applicable law.
8.14 SEVERABILITY. If any term or provision of this Agreement is
determined by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions hereof, or the application of such
provision to Persons or circumstances other than those as to which it has been
held invalid or unenforceable, shall remain in full force and effect and in no
way be affected, impaired or invalidated thereby, so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any Party or Newco. Upon such determination, the
Parties and Newco shall negotiate in good faith in an effort to agree upon a
suitable and equitable substitute provision to effect the original intent of the
Parties and Newco. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
8.15 WAIVER OF JURY TRIAL. Each Party and Newco acknowledges and
agrees that any controversy which may arise under this Agreement is likely to
involve complicated and difficult issues, and therefore each Party and Newco
hereby irrevocably and unconditionally waives any right such Party and Newco may
have to a trial by jury in respect of any Litigation, directly or indirectly,
arising out of, or relating to, this Agreement, or the transactions contemplated
by this Agreement. Each Party and Newco certifies and acknowledges that (a) no
representative, agent or attorney of the other Party or Newco has represented,
expressly or otherwise, that such other Party or Newco would not, in the event
of Litigation, seek to enforce the foregoing waiver, (b) each Party and Newco
understands and has considered the implications of this waiver, (c) each Party
and Newco makes this waiver voluntarily, and (d) each Party and Newco has been
induced to enter into this Agreement by, among other things, the mutual waivers
and certifications in this Section 8.15.
- 54 -
IN WITNESS WHEREOF, each of the Parties has caused this
Agreement to be duly executed and delivered on its behalf by its duly authorized
officers as of the day and year first above written.
REGIONS FINANCIAL CORPORATION
By:/s/ XXXX X. XXXXX, XX.
---------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Chief Executive Officer
UNION PLANTERS CORPORATION
By:/s/ XXXXXXX X. XXXXX
---------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
EXHIBIT 1
AMENDMENT TO RIGHTS AGREEMENT
This Amendment to Rights Agreement (this "Amendment"), dated
as of January [__], 2004, by and between UNION PLANTERS CORPORATION, a Tennessee
corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New
York corporation (the "Rights Agent"), further amends that certain Rights
Agreement (the "Rights Agreement"), dated as of January 22, 1999, by and between
the Company and Union Planters Bank, National Association, as amended by the
Company and the Rights Agent as of December 3, 2001. Unless otherwise defined
herein, capitalized terms used in this Amendment shall have the meanings
ascribed to them in the Rights Agreement.
WHEREAS, the Company's Board of Directors has approved, and
the Company intends to execute, an Agreement and Plan of Merger (as amended,
supplemented, modified or replaced from time to time, the "Merger Agreement"),
dated as of January [__], 2004, by and between the Company and Regions Financial
Corporation, a Delaware corporation ("Regions"), pursuant to which the Company
and Regions will be merged with and into a direct wholly owned subsidiary of the
Company and Regions organized under Delaware law ("Newco") with Newco as the
surviving corporation (the "Merger");
WHEREAS, the Board of Directors of the Company has determined
that the Merger Agreement and the terms and conditions set forth therein and the
transactions contemplated thereby, including, without limitation, the Merger,
are in the best interests of the Company and its shareholders;
WHEREAS, the Board of Directors of the Company has determined,
in connection with its contemplation of the Merger Agreement, that an amendment
to the Rights Agreement as set forth herein is necessary and desirable to exempt
the Merger Agreement and the transactions contemplated thereby, including,
without limitation, the Merger, from the application of the Rights Agreement as
set forth in this Amendment;
WHEREAS, pursuant to Section 26 of the Rights Agreement, the
Company may, and the Rights Agent shall, if the Company so directs, supplement
or amend any provisions of the Rights Agreement, subject to the limitations set
forth in such Section 26; and
WHEREAS, pursuant to Section 26 of the Rights Agreement, the
Company hereby directs that the Rights Agreement should be amended as set forth
herein;
NOW, THEREFORE, in consideration of the promises and mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound, the Company and the Rights Agent hereby agree as follows:
A. Amendment of Section 1. Section 1 of the Rights
Agreement is supplemented to add the following definitions in the appropriate
alphabetical locations:
"Regions" means Regions Financial Corporation, a Delaware
corporation.
"Merger" shall mean the "Merger" as such term is defined in
the Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of January [__], 2004, by and between the Company and
Regions, as it may be amended, supplemented, modified or replaced from
time to time.
"Newco" shall mean a direct wholly owned subsidiary of the
Company and Regions organized under Delaware law, into which the
Company will merge in the Merger.
B. Amendment of the Definition of "Acquiring Person".
The definition of "Acquiring Person" in Section 1 of the Rights Agreement is
hereby amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, neither Regions, Newco nor any of their Affiliates
or Associates shall be deemed to be an Acquiring Person as a
result, directly or indirectly, of (i) the approval,
execution, delivery or performance of the Merger Agreement,
(ii) the consummation of the Merger or (iii) the consummation
of any other transaction contemplated by the Merger Agreement,
including, without limitation, the exchange of common stock of
the Company for common stock of Newco pursuant to the Merger
Agreement."
C. Amendments to Section 3.
Section 3(b) of the Rights Agreement is hereby amended and
supplemented by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, a Distribution Date shall not be deemed to have
occurred as the result, directly or indirectly, of (i) the
approval, execution, delivery or performance of the Merger
Agreement, (ii) the consummation of the Merger, (iii) the
consummation of any other transaction contemplated by the
Merger Agreement, including, without limitation, the exchange
of common stock of the Company for common stock of Newco
pursuant to the Merger Agreement, or (iv) the public
announcement of any of the foregoing."
Section 3 of the Rights Agreement is amended to add the
following sentence at the end thereof as a new Section 3(e):
" (e) Nothing in this Rights Agreement shall be
construed to give any holder of Rights or any other Person any
legal or equitable rights, remedies or claims under this
Rights Agreement, including but not limited to under Section
11 hereof, by virtue of (i) the approval, execution, delivery
or performance of
-2-
the Merger Agreement, (ii) the consummation of the Merger,
(iii) the consummation of any other transaction contemplated
by the Merger Agreement, including, without limitation, the
exchange of common stock of the Company for common stock of
Newco pursuant to the Merger Agreement, or (iv) the public
announcement of any of the foregoing."
D. Effective Date of Amendment. This Amendment shall be
deemed effective as of the date first written above, as if executed on such
date.
E. Effect of Amendment. Except as expressly set forth herein,
the Rights Agreement shall not by implication or otherwise be supplemented or
amended by virtue of this Amendment, but shall remain in full force and effect,
as amended hereby. This Amendment shall be construed in accordance with and as a
part of the Rights Agreement, and all terms, conditions, representations,
warranties, covenants and agreements set forth in the Rights Agreement and each
other instrument or agreement referred to therein, except as herein amended, are
hereby ratified and confirmed.
F. Waiver of Notice. The Rights Agent and the Company
hereby waive any notice requirement with respect to each other under the Rights
Agreement, if any, pertaining to the matters covered by this Amendment.
G. Severability. If any term, provision, covenant or
restriction of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Amendment shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
H. Governing Law. This Amendment shall be deemed to be a
contract made under the law of the Commonwealth of Kentucky and for all purposes
shall be governed by and construed in accordance with the law of such
Commonwealth applicable to contracts to be made and performed entirely within
such Commonwealth.
I. Counterparts. This Amendment may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
J. Descriptive Headings. Descriptive headings of the
several Sections of this Amendment are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions of
this Amendment.
-3-
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first written above.
UNION PLANTERS CORPORATION
By:
----------------------------------
Name:
Title:
AMERICAN STOCK TRANSFER & TRUST COMPANY
By:
----------------------------------
Name:
Title:
-4-
EXHIBIT 2-A
FORM OF AFFILIATE LETTER
Newco
------------------
------------------
Ladies and Gentlemen:
I have been advised that as of the date hereof I may be deemed to be an
"affiliate" of Union Planters Corporation, a Tennessee corporation ("Union
Planters"), as the term "affiliate" is defined for purposes of paragraphs (c)
and (d) of Rule 145 ("Rule 145") of the Securities and Exchange Commission (the
"SEC") under the Securities Act of 1933, as amended (including the rules and
regulations thereunder, the "Act"). I have been further advised that pursuant to
the terms of the Agreement and Plan of Merger, dated as of January 22, 2004 (the
"Merger Agreement"), by and between Union Planters and Regions Financial
Corporation, a Delaware corporation ("Regions"), Union Planters and Regions
shall be merged with and into a direct wholly owned subsidiary of Union Planters
and Regions organized under Delaware law ("Newco") with Newco as the surviving
corporation (the "Merger"), and each share of common stock, par value $5.00 per
share, of Union Planters ("Union Planters Common Stock") shall be converted into
the right to receive 1 shares of common stock, par value $[__] per share, of
Newco ("Newco Common Stock"). I further understand that I may receive Newco
Common Stock as a result of the exercise of Union Planters Stock Options or
other similar Rights. All capitalized terms used in this letter but not defined
herein shall have the meanings ascribed thereto in the Merger Agreement.
I hereby represent, warrant and covenant to Newco that, in the event I
receive any Newco Common Stock as a result of the Merger:
1. The Newco Common Stock to be received by me as a result of the
Merger or any securities which may be paid as a dividend or otherwise
distributed thereon or with respect thereto or issued or delivered in exchange
or substitution therefor, or any Union Planters Stock Option, Right or other
interest (all such shares and securities being referred to herein as "Restricted
Securities") will be taken for my own account, and not for others, directly or
indirectly, in whole or in part, and I will not make any sale, transfer or other
disposition of Restricted Securities in violation of the Act.
2. I have carefully read this letter and discussed its
requirements and other applicable limitations upon my ability to sell, transfer
or otherwise dispose of Restricted Securities to the extent I believed necessary
with my counsel or counsel for Union Planters.
3. I have been advised that the issuance of Newco Common Stock to
me pursuant to the Merger will be registered with the SEC under the Act.
However, I have also been advised that, since at the time the Merger will be
submitted for a vote of the shareholders of Union Planters I may be deemed to
have been an affiliate of Union Planters and the distribution by me of
Restricted Securities has not been registered under the Act, I may not sell,
transfer or otherwise dispose of Restricted Securities issued to me as a result
of the Merger unless (i) such sale, transfer or other disposition has been
registered under the Act, (ii) such sale, transfer or
other disposition is made in conformity with the volume and other limitations
of Rule 145, or (iii) in the opinion of counsel in form and substance reasonably
acceptable to Newco, such sale, transfer or other disposition is otherwise
exempt from registration under the Act.
4. I understand that Newco is under no obligation to register the
sale, transfer or other disposition of Restricted Securities by me or on my
behalf under the Act or to take any other action necessary in order to make
compliance with an exemption from such registration available.
5. I also understand that stop transfer instructions will be
given to Newco's transfer agent with respect to Restricted Securities and that
there will be placed on the certificates for Restricted Securities issued to me,
or securities issued in substitution therefor, a legend stating in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE (A) WERE ISSUED IN
A TRANSACTION TO WHICH RULE 145 UNDER THE SECURITIES ACT OF
1933, AS AMENDED, APPLIES AND (B) MAY NOT BE SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF EXCEPT OR UNLESS (1) COVERED BY AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT, (2) IN
CONFORMITY WITH THE VOLUME AND OTHER LIMITATIONS OF RULE 145
UNDER SUCH ACT, OR (3) IN ACCORDANCE WITH A LEGAL OPINION IN
FORM AND SUBSTANCE REASONABLY ACCEPTABLE TO NEWCO THAT SUCH
SALE OR TRANSFER IS OTHERWISE EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT."
6. I understand and agree that, unless the transfer by me of my
Restricted Securities has been registered under the Act or is a sale made in
conformity with the provisions of Rule 145, Newco reserves the right, in its
sole discretion, to put the following legend on the certificates issued to my
transferee:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND WERE ACQUIRED
FROM A PERSON WHO RECEIVED SUCH SHARES IN A TRANSACTION TO
WHICH RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF 1933
APPLIES. THE SHARES HAVE BEEN ACQUIRED BY THE HOLDER NOT WITH
A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY DISTRIBUTION
THEREOF WITHIN THE MEANING OF THE SECURITIES ACT OF 1933 AND
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT IN ACCORDANCE WITH AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933."
7. I understand and agree that the legends set forth in
paragraphs (5) and (6) above shall be removed by delivery of substitute
certificates without such legend, and/or the issuance of a letter to Newco's
transfer agent removing such stop transfer instructions, and the above
restrictions on sale will cease to apply, if (A) one year (or such other period
as may be required by Rule 145(d)(2) under the Act or any successor thereto)
shall have elapsed from the Closing Date and the provisions of such Rule are
then available to me; (B) if two years (or such other
-2-
period as may be required by Rule 145(d)(3) under the Act or any successor
thereto) shall have elapsed from the Effective Date and the provisions of such
Rule are then available to me; or (C) I have delivered to Newco (i) a copy of a
letter from the staff of the SEC, an opinion of counsel in form and substance
reasonably satisfactory to Newco, or other evidence reasonably satisfactory to
Newco to the effect that such legend and/or stop transfer instructions are not
required for purposes of the Act or (ii) evidence or representations reasonably
satisfactory to Newco that the securities represented by such certificates are
being or have been transferred in a transaction made in conformity with the
provisions of Rule 145 or pursuant to an effective registration under the Act.
8. By executing this letter, without limiting or abrogating the
agreements that I have made as set forth above, I am not admitting that I am an
"affiliate" of Union Planters as described in the first paragraph of this letter
or waiving any rights I may have to object to any claim that I am such an
"affiliate" on or after the date of this letter.
9. I understand and agree that the foregoing provisions also
apply to (i) my spouse, (ii) any relative of mine or my spouse occupying my
home, (iii) any trust or estate in which I, my spouse or any such relative owns
at least 10% beneficial interest or of which any of us serves as trustee,
executor or in any similar capacity, and (iv) any corporate or other
organization in which I, my spouse or any such relative owns at least 10% of any
class of equity securities or of the equity interest.
10. I understand and agree that this Letter Agreement will
terminate and be of no further force and effect if the Merger Agreement is
terminated in accordance with its terms.
11. This Letter Agreement shall be governed by the Laws of the
State of Delaware.
-3-
Very truly yours,
--------------------------------
Name:
ACCEPTED this day of , 2004:
NEWCO
By:
---------------------------
Name:
Title:
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EXHIBIT 2-B
FORM OF AFFILIATE LETTER
Newco
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Ladies and Gentlemen:
I have been advised that as of the date hereof I may be deemed to be an
"affiliate" of Regions Financial Corporation, a Delaware corporation
("Regions"), as the term "affiliate" is defined for purposes of paragraphs (c)
and (d) of Rule 145 ("Rule 145") of the Securities and Exchange Commission (the
"SEC") under the Securities Act of 1933, as amended (including the rules and
regulations thereunder, the "Act"). I have been further advised that pursuant to
the terms of the Agreement and Plan of Merger, dated as of January 22, 2004 (the
"Merger Agreement"), by and between Union Planters Corporation, a Tennessee
corporation ("Union Planters") and Regions, Union Planters and Regions shall be
merged with and into a direct wholly owned subsidiary of Union Planters and
Regions organized under Delaware law ("Newco") with Newco as the surviving
corporation (the "Merger"), and each share of common stock, par value $0.625 per
share, of Regions ("Regions Common Stock") shall be converted into the right to
receive 1.2346 shares of common stock, par value $[__] per share, of Newco
("Newco Common Stock"). I further understand that I may receive Newco Common
Stock as a result of the exercise of Regions Stock Options or other similar
Rights. All capitalized terms used in this letter but not defined herein shall
have the meanings ascribed thereto in the Merger Agreement.
I hereby represent, warrant and covenant to Newco that, in the event I
receive any Newco Common Stock as a result of the Merger:
1. The Newco Common Stock to be received by me as a result of the
Merger or any securities which may be paid as a dividend or otherwise
distributed thereon or with respect thereto or issued or delivered in exchange
or substitution therefor, or any Regions Stock Option, Right or other interest
(all such shares and securities being referred to herein as "Restricted
Securities") will be taken for my own account, and not for others, directly or
indirectly, in whole or in part, and I will not make any sale, transfer or other
disposition of Restricted Securities in violation of the Act.
2. I have carefully read this letter and discussed its
requirements and other applicable limitations upon my ability to sell, transfer
or otherwise dispose of Restricted Securities to the extent I believed necessary
with my counsel or counsel for Regions.
3. I have been advised that the issuance of Newco Common Stock to
me pursuant to the Merger will be registered with the SEC under the Act.
However, I have also been advised that, since at the time the Merger will be
submitted for a vote of the shareholders of Regions I may be deemed to have been
an affiliate of Regions and the distribution by me of Restricted Securities has
not been registered under the Act, I may not sell, transfer or otherwise dispose
of Restricted Securities issued to me as a result of the Merger unless (i) such
sale, transfer or other disposition has been registered under the Act, (ii) such
sale, transfer or other disposition is made
in conformity with the volume and other limitations of Rule 145, or (iii) in the
opinion of counsel in form and substance reasonably acceptable to Newco, such
sale, transfer or other disposition is otherwise exempt from registration under
the Act.
4. I understand that Newco is under no obligation to register the
sale, transfer or other disposition of Restricted Securities by me or on my
behalf under the Act or to take any other action necessary in order to make
compliance with an exemption from such registration available.
5. I also understand that stop transfer instructions will be
given to Newco's transfer agent with respect to Restricted Securities and that
there will be placed on the certificates for Restricted Securities issued to me,
or securities issued in substitution therefor, a legend stating in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE (A) WERE ISSUED IN
A TRANSACTION TO WHICH RULE 145 UNDER THE SECURITIES ACT OF
1933, AS AMENDED, APPLIES AND (B) MAY NOT BE SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF EXCEPT OR UNLESS (1) COVERED BY AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT, (2) IN
CONFORMITY WITH THE VOLUME AND OTHER LIMITATIONS OF RULE 145
UNDER SUCH ACT, OR (3) IN ACCORDANCE WITH A LEGAL OPINION IN
FORM AND SUBSTANCE REASONABLY ACCEPTABLE TO NEWCO THAT SUCH
SALE OR TRANSFER IS OTHERWISE EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT."
6. I understand and agree that, unless the transfer by me of my
Restricted Securities has been registered under the Act or is a sale made in
conformity with the provisions of Rule 145, Newco reserves the right, in its
sole discretion, to put the following legend on the certificates issued to my
transferee:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND WERE ACQUIRED
FROM A PERSON WHO RECEIVED SUCH SHARES IN A TRANSACTION TO
WHICH RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF 1933
APPLIES. THE SHARES HAVE BEEN ACQUIRED BY THE HOLDER NOT WITH
A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY DISTRIBUTION
THEREOF WITHIN THE MEANING OF THE SECURITIES ACT OF 1933 AND
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT IN ACCORDANCE WITH AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933."
7. I understand and agree that the legends set forth in
paragraphs (5) and (6) above shall be removed by delivery of substitute
certificates without such legend, and/or the issuance of a letter to Newco's
transfer agent removing such stop transfer instructions, and the above
restrictions on sale will cease to apply, if (A) one year (or such other period
as may be required by Rule 145(d)(2) under the Act or any successor thereto)
shall have elapsed from the Closing Date and the provisions of such Rule are
then available to me; (B) if two years (or such other
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period as may be required by Rule 145(d)(3) under the Act or any successor
thereto) shall have elapsed from the Effective Date and the provisions of such
Rule are then available to me; or (C) I have delivered to Newco (i) a copy of a
letter from the staff of the SEC, an opinion of counsel in form and substance
reasonably satisfactory to Newco, or other evidence reasonably satisfactory to
Newco to the effect that such legend and/or stop transfer instructions are not
required for purposes of the Act or (ii) evidence or representations reasonably
satisfactory to Newco that the securities represented by such certificates are
being or have been transferred in a transaction made in conformity with the
provisions of Rule 145 or pursuant to an effective registration under the Act.
8. By executing this letter, without limiting or abrogating the
agreements that I have made as set forth above, I am not admitting that I am an
"affiliate" of Regions as described in the first paragraph of this letter or
waiving any rights I may have to object to any claim that I am such an
"affiliate" on or after the date of this letter.
9. I understand and agree that the foregoing provisions also
apply to (i) my spouse, (ii) any relative of mine or my spouse occupying my
home, (iii) any trust or estate in which I, my spouse or any such relative owns
at least 10% beneficial interest or of which any of us serves as trustee,
executor or in any similar capacity, and (iv) any corporate or other
organization in which I, my spouse or any such relative owns at least 10% of any
class of equity securities or of the equity interest.
10. I understand and agree that this Letter Agreement will
terminate and be of no further force and effect if the Merger Agreement is
terminated in accordance with its terms.
11. This Letter Agreement shall be governed by the Laws of the
State of Delaware.
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Very truly yours,
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Name:
ACCEPTED this day of 2004:
NEWCO
By:
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Name:
Title:
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