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EXHIBIT 2.3
TRANSFLORIDA BANK
Suite 300
0000 Xxxx Xxxxxxxx Xxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
February 26, 1998
Union Planters Corporation
0000 Xxxxxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx, Xx.
Chief Executive Officer
Ladies and Gentlemen:
We refer to the Agreement and Plan of Reorganization (the "Merger
Agreement") of even date herewith between Union Planters Corporation ("UPC") and
Transflorida Bank ("Transflorida"). Capitalized terms used but not defined
herein shall have the meanings ascribed to them in the Merger Agreement.
In order to induce UPC to enter into the Merger Agreement, and in
consideration of UPC's undertaking of efforts in furtherance of the transactions
contemplated thereby, Transflorida agrees as follows:
1. Representations and Warranties. Transflorida hereby represents and
warrants to UPC that Transflorida has all requisite corporate power and
authority to enter into this letter agreement (the "Agreement") and to perform
its obligations set forth herein. The execution, deliver and performance of this
Agreement have been duly and validly authorized by all necessary corporate
action on the part of Transflorida. This Agreement has been duly executed and
delivered by Transflorida.
2. Termination Fee. (a) Unless a Nullifying Event shall have occurred and
be continuing at the time the Merger Agreement is terminated, in the event that
(i) the Merger Agreement shall have been terminated pursuant to Article 10
thereof, (ii) prior to or concurrently with such termination of the Merger
Agreement a First Trigger Event shall have occurred, and (iii) prior to,
concurrently with or within 18 months after such termination an Acquisition
Event (as such term is defined below) shall have occurred, Transflorida shall
pay to UPC a cash fee of $3.5 million. Such fee shall be payable in immediately
available funds on or before the second business day following the occurrence
of such Acquisition Event.
(b) As used herein, a "First Trigger Event" shall mean the occurrence of
any of the following events:
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(i) Transflorida's Board of Directors shall have failed to approve
or recommend the Merger Agreement or the Merger, or shall have withdrawn
or modified in a manner adverse to UPC its approval or recommendation of
the Merger Agreement or the Merger, or shall have resolved or publicly
announced an intention to do either of the foregoing;
(ii) Transflorida or any Significant Subsidiary (as such term is
defined below), or the Board of Directors of Transflorida or a
Significant Subsidiary, shall have recommended that the shareholders of
Transflorida approve any Acquisition Proposal (as such term is defined
below) or shall have entered into an agreement with respect to,
authorized, approved, proposed or publicly announced its intention to
enter into, any Acquisition Proposal;
(iii) the Merger Agreement shall not have been approved at a meeting
of Transflorida shareholders which has been held for that purpose prior
to termination of the Merger Agreement in accordance with its terms, if
prior thereto it shall have been publicly announced that any person
(other than UPC or any of its Subsidiaries) shall have made, or disclosed
an intention to make, an Acquisition Proposal;
(iv) any person (together with its affiliates and associates) or
group (as such terms are used for purposes of Section 13(d) of the
Exchange Act) (other than UPC and its Subsidiaries) shall have acquired
beneficial ownership (as such term is used for purposes of Section 13(d)
of the Exchange Act) or the right to acquire beneficial ownership of 20%
or more of the then outstanding shares of the stock then entitled to vote
generally in the election of directors of Transflorida or a Significant
Subsidiary; or
(v) following the making of an Acquisition Proposal, Transflorida
shall have breached any covenant or agreement contained in the Merger
Agreement such that UPC would be entitled to terminate the Merger
Agreement under Section 10(c) thereof (without regard to any grace period
provided for therein) unless such breach is promptly cured without
jeopardizing consummation of the Merger pursuant to the terms of the
Merger Agreement.
(c) As used herein, "Acquisition Event" shall mean the consummation of
any event described in the definition of "Acquisition Proposal," except that the
percentage reference contained in clause (C) of such definition shall be 50%
instead of 20%.
(d) As used herein, "Acquisition Proposal" shall mean any (i) publicly
announced proposal, (ii) regulatory application or notice (whether in draft or
final form), (iii) agreement or understanding, (iv) disclosure of an intention
to make a proposal, or (v) amendment to any of the foregoing, made or filed on
or after the date hereof, in each case with respect to any of the following
transactions with a counterparty other than parent or any of its Subsidiaries:
(A) a merger or consolidation, or any similar transaction, involving
Transflorida or any Significant Subsidiary (other than mergers, consolidations
or similar transactions involving solely Transflorida
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and/or one or more wholly owned Subsidiaries of Transflorida and other than a
merger or consolidation as to which the common shareholders of Transflorida
immediately prior thereto in the aggregate own at least 70% of the common stock
of the publicly held surviving or successor corporation (or any publicly held
ultimate parent company thereof) immediately following consummation thereof);
(B) a purchase, lease or other acquisition of all or substantially all of the
assets or deposits of Transflorida or any Significant Subsidiary; or (C) a
purchase or other acquisition (including by way of merger, consolidation, share
exchange or otherwise) of securities representing 20% or more of the voting
power of Transflorida or any Significant Subsidiary.
(e) As used herein, "Nullifying Event" shall mean any of the following
events occurring and continuing at a time when Transflorida is not in material
breach of any of its covenants or agreements contained in the Merger Agreement:
(i) UPC shall be in breach of any of its covenants or agreements contained in
the Merger Agreement such that Transflorida shall be entitled to terminate the
Merger Agreement pursuant to Section 10(c) thereof (without regard to any grace
period provided for therein) or (ii) the shareholders of UPC shall have voted
and failed to approve the UPC Charter Amendment at a meeting of such
shareholders which has been held for that purpose or at any adjournment or
postponement thereof (unless the Merger Agreement shall not have been approved
at a meeting of Transflorida shareholders which was held on or prior to such
date for the purpose of voting with respect to the Merger Agreement).
(f) As used herein, "Significant Subsidiary" shall mean a "significant
subsidiary," as defined in Rule 1-02 of Regulation S-X promulgated by the
Securities and Exchange Commission, of Transflorida.
3. To the extent that Transflorida is prohibited by applicable law or
regulation, or by administrative actions or policy of a federal or state
financial institution supervisory agency having jurisdiction over it, from
making the payments required to be paid by Transflorida herein in full, it shall
immediately so notify UPC and thereafter deliver or cause to be delivered, from
time to time, to UPC, the portion of the payments required to be paid by it
herein that it is no longer prohibited from paying, within five business days
after the date on which the Transflorida is no longer so prohibited; provided,
however, that if Transflorida at any time is prohibited by applicable law or
regulation, or by administrative actions or policy of a federal or state
financial institution supervisory agency having jurisdiction over it, from
making the payments required hereunder in full, it shall (i) use its reasonable
best efforts to obtain all required regulatory and legal approvals and to file
any required notices as promptly as practicable in order to make such payments,
(ii) within five days of the submission or receipt of any documents relating to
any such regulatory and legal approvals, provide parent with copies of the same,
and (iii) keep UPC advised of both the status of any such request for regulatory
and legal approvals, as well as any discussions with any relevant regulatory or
other third party reasonably related to the same.
4. Except where federal law specifically applies, this Agreement shall be
construed and interpreted according to the laws of the State of Tennessee
without regard to conflicts of laws principles thereof.
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5. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
6. Nothing contained herein shall be deemed to authorize Transflorida or
UPC to breach any provision of the Merger Agreement.
Please confirm your agreement with the understanding set forth herein by
signing and returning to us the enclosed copy of this Agreement.
Very truly yours,
TRANSFLORIDA BANK
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
President and Chief Executive Officer
Accepted and agreed to as of
the date first above written:
UNION PLANTERS CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
President and Chief Operating Officer
