1
EXHIBIT 2
MERGER AGREEMENT
This Merger Agreement ("Agreement") is executed as of the 1th day of
May, 1997, between and among TRUSTMARK CORPORATION, a Mississippi corporation
("Trustmark"), TRUSTMARK NATIONAL BANK, a national banking association
("Trustmark Bank") (Trustmark and Trustmark Bank hereinafter sometimes
collectively referred to as "Buyers") and Perry County Bank, a Mississippi
state chartered banking institution ("Bank").
WHEREAS, the parties desire to merge Bank with Trustmark Bank, with
Trustmark Bank as the surviving association;
NOW, THEREFORE, for the considerations and mutual covenants and
conditions contained in this Agreement, Buyers and Bank do hereby agree as
follows:
1. THE MERGER.
Pursuant to this Agreement and the Plan and Agreement of
Merger in the form attached as Exhibit "A", Bank shall be merged with and into
Trustmark Bank (the "Merger"). As a result of and as part of the Merger and
subject to the adjustments and limitations provided for in Sections 2.2 and 2.3
of this Agreement, on the effective date of the Merger ("Effective Time") each
of the issued and outstanding shares of the common stock of Perry County Bank
as of the date of Bank's special shareholders meeting (the "Meeting Date")
called to vote on the Merger shall be converted into cash or Trustmark common
shares on the basis described in Section 2 herein.
2
As a consequence of the Merger, all assets of Bank, as they
exist at the Effective Time of the Merger, shall pass to and vest in Trustmark
Bank without any conveyance or other transfer, and Trustmark Bank shall be
responsible for all of the liabilities of every kind and description of Bank as
of the Effective Time of the Merger.
2. CONVERSION OF BANK COMMON STOCK.
2.1 Election Procedures and Exchange of Shares.
(a) Right to Elect Type of Consideration; Election. Each
holder of shares of the common stock of Bank as of the Meeting Date shall be
given the opportunity to elect, in accordance with the procedures set forth in
Section 2.1(b) hereof (the "Election") to receive either:
(i) Cash in an amount equal to $752.00 per share for all of
the Bank shares owned by such holder of record as of the Meeting Date (the
"Available Cash Election"). The Available Cash Election is subject to the
following conditions:
(A) A minimum of twenty-five percent (25%) of the
total value of all consideration paid in the Merger (the "Merger
Consideration") shall be paid in cash.
(B) If the total cash payable to Bank shareholders
(including cash paid to holders for fractional shares and cash paid to
dissenters to the transaction) would exceed forty percent (40%) of the Merger
Consideration, the number of shares of each holder's Bank common stock that
will be exchanged for cash under the Available Cash Election shall be
proportionately reduced so that
2
3
the total cash payable to Bank shareholders shall not exceed forty percent
(40%) of the total Merger Consideration.
(C) Each Bank common share not exchanged for cash
under the Available Cash Election shall be exchanged for shares of Trustmark
common stock at the exchange ratio established in Section 2.1(a)(ii) hereof
(the "Exchange Ratio"); or
(ii) Shares of Trustmark common stock in an amount equal
to a total Merger Consideration of $9.4 Million utilizing a value of $752.00
per share for each Bank common share held by such holder of record as of the
Meeting Date ("Share Election") as to which an Available Cash Election is not
applicable. The Exchange Ratio shall be the quotient of $752.00 divided by the
average closing bid/asked market price (computed on the basis of the last trade
of the day) of Trustmark shares as reported in the National Association of
Securities' Dealers Automated Quotation System for National Market Issues for
the ten consecutive trading days preceding the third (3rd) day prior to the
Meeting Date ("Average Trustmark Price").
(b) Form of Election. Trustmark and Bank agree that the
forms for making the Election (the "Forms of Election"), shall be mailed to
each holder of Bank shares eligible to vote at the Bank special shareholders'
meeting called to vote on the Merger as part of the proxy statement for the
meeting. The Forms of Election must be properly completed and returned to Bank
on or before the Meeting Date in accordance with the instructions applicable
thereto. Any holder of Bank shares who does not return a properly executed
Form
3
4
of Election on or before the Meeting Date (a "Non-Electing Shareholder") shall
be deemed to have made a Share Election. If the Merger is approved, Bank shall
furnish Trustmark with the original Forms of Election as soon as is practicable
following Bank's special shareholder's meeting.
(c) Change in Election; Revocation. Any Bank shareholder
who has made a valid Election may at any time change such shareholder's
Election by submitting a revised, subsequently dated Form of Election on or
before the Meeting Date.
(d) Bank Shares Held by Trustmark and Treasury Shares.
Any Bank common shares held by Trustmark, whether outright or under option,
(excluding shares held in a fiduciary capacity) or in the treasury of Bank at
the Effective Time shall not be converted but shall be canceled and retired,
and no cash, stock, or other property shall be issuable with respect thereto.
(e) Distribution of Trustmark Stock and Cash. Promptly
following the Effective Date, Trustmark shall send to Bank's shareholders of
record as of the Meeting Date transmittal materials for use in exchanging their
Bank common shares for cash and Trustmark shares in accordance with the
Election. Promptly after the Effective Time, Trustmark shall issue its shares
and pay cash in accordance with the Elections to the Bank shareholders who
surrender their shares to Trustmark. Unless and until the shares of Bank shall
be so surrendered, such former Bank shareholders shall not be entitled to
receive the cash and share certificates to which such shareholder is entitled
or any dividends payable with
4
5
respect to such shares. Upon the subsequent surrender of such Bank shares, the
former Bank shareholder shall be issued the Trustmark shares and shall be paid
the cash and dividends (without interest) to which such shareholder is
entitled.
2.2 Fractional Shares. No fractional Trustmark common
shares shall be issued upon the surrender for exchange of certificates
representing Bank common shares. In lieu of any such fractional share, each
holder of Bank common shares who would otherwise be entitled to a fractional
share of Trustmark common stock will be paid cash upon surrender of all the
stock certificates representing Bank common shares held by such holder in the
amount equal to the product of such fraction multiplied by the Average
Trustmark Price.
2.3 Calculations and Adjustments If, between the date of
this Agreement and the Effective Time of the Merger, Trustmark shares shall be
changed into a different number of shares or shares of a different class by
reason of any reclassification, recapitalization, stock split or stock dividend
with a record date within said period, the number of Trustmark common shares to
be issued and delivered upon the Merger as provided in this Agreement shall be
appropriately and proportionately adjusted so that the number of such shares
that will be issued and delivered as a result of the Merger will equal the
number of Trustmark common shares that holders of shares of Bank common stock
would have received had the record date for such reclassification,
recapitalization, stock split or stock dividend been immediately following the
Effective Time of the Merger.
5
6
If the Average Trustmark Price is less than $24.50 or greater
than $28.50 per share on the Meeting Date and the Merger is approved by the
Bank's shareholders, the following provisions shall apply:
(a) Buyers and Bank shall promptly meet to consider the
implications of the Average Trustmark Price on the proposed transaction;
(b) The Boards of Directors of Trustmark and Bank shall be
fully authorized, under the circumstances and in the best interests of each
organization, to renegotiate the Exchange Ratio for the number of shares of
Trustmark stock in to which Bank common shares shall be converted;
(c) If Trustmark and Bank are unable to negotiate a mutually
acceptable exchange ratio for the number of shares of Trustmark stock in to
which Bank common shares shall be converted, either Trustmark or Bank may
terminate this Agreement upon written notice delivered personally to the other
party on or before ten (10) days prior to the Closing Date.
(d) In the event that either party exercises its right of
termination under and in accordance with the above provisions of this Section
2.3, the terminating party shall reimburse and pay to the other party all of
the non-terminating party's reasonable expenses, including but not limited to,
attorneys' fees which such party shall have incurred under this Agreement and
in pursuance of the transaction covered by this Agreement.
6
7
2.4 Lost or Destroyed Certificates. Any person whose
certificates representing shares of Bank common stock shall have been lost or
destroyed may nevertheless obtain the shares of Trustmark or cash to which such
Bank shareholder is entitled as a result of the Merger if such Bank shareholder
provides Trustmark with the statement certifying such loss or destruction and
an indemnity satisfactory to Trustmark sufficient to indemnify Trustmark
against any loss or expense that may occur as a result of such lost or
destroyed certificate being thereafter presented to Trustmark for exchange.
3. REPRESENTATION AND WARRANTIES OF BANK.
Bank makes the following representations and warranties, each
of which is being relied upon by Buyers, which representations and warranties
shall, individually and in the aggregate, be true in all material respects upon
the date of this Agreement and on the Closing Date and shall not survive the
Closing Date and the Merger:
3.1 Organization. Bank is a state chartered banking
institution duly organized, validly existing and in good standing under the
laws of the State of Mississippi and has full corporate power to carry on its
business as now being conducted and to own and lease its properties.
3.2 Authority. This Agreement has been duly and validly
approved by the Board of Directors of Bank. Upon approval by the shareholders
of Bank and upon obtaining the required approvals of all applicable regulatory
and judicial authorities (and such approvals are no longer subject to judicial
or administrative review, and all waiting periods required by law have
expired):
7
8
(a) This Agreement shall be a valid, binding obligation
of Bank, enforceable in accordance with its terms, and
(b) Consummation of the transactions contemplated by this
Agreement will not: (i) result in a breach of or default under any agreement
to which Bank is a party, (ii) conflict with or result in the breach of any
law, rule or regulation, or any writ, injunction or decree of any court or
governmental agency, or (iii) conflict with, or result in the breach of, the
articles of association or bylaws of Bank.
3.3 Capitalization. The authorized capital stock of Bank
consists of 12,500 shares of common stock $10.00 par value, of which 12,500
shares are issued and outstanding.
Each share of Bank stock outstanding as of the date hereof is
duly authorized, validly issued, fully paid and non-assessable and free of
preemptive rights. Other than as described in this Section 3.3, Bank does not
have outstanding any other equity securities or any subscriptions, options,
warrants, rights, calls or other commitments to issue any securities or to
convert any presently outstanding securities into securities of a different
kind or class. Bank does not have any debt securities outstanding.
3.4 Financial Statements. Bank has delivered to Buyers
the audited financial statements of Bank for the periods ended December 31,
1994, December 31, 1995, and December 31, 1996. As promptly as same are
available, Bank shall deliver to Buyers a copy of any
8
9
subsequent quarterly and annual financial statements of Bank and its quarterly
call reports. The financial statements delivered pursuant to this Section 3.4
(subject to audit adjustments to any unaudited financial statements) do and
will fairly present the financial condition of Bank as of the dates thereof in
all material respects and have been or will be prepared in conformity with
generally accepted accounting principals, consistently applied, for the periods
involved. All other statements and reports delivered pursuant to this Section
3.4 do and will fairly present the financial information purported to be shown
therein in all material respects. The $666,313 reserve for loan losses
reflected in the audited financial statements for the period ended December 31,
1996, to the best of Bank's knowledge adequately provides for the anticipated
loan losses of Bank as of such date in accordance with accepted audit, bank
examination and bank regulatory standards.
3.5 Absence of Undisclosed Liabilities. Bank has no
known liabilities or obligations of any nature whatsoever, whether absolute,
accrued, contingent or otherwise, due or to become due, as principal or
guarantor, not recorded or disclosed in the audited financial statements for
the period ended December 31, 1996, or otherwise disclosed in this Agreement or
the documents, statements, lists, and exhibits referred to herein and delivered
on the date hereof which could have a material adverse effect on the financial
condition, properties or prospects of Bank.
3.6 Compliance with Laws. To the best of Bank's
knowledge, Bank has no uncorrected deficiencies noted in any examination
9
10
report by federal or state regulatory authorities and is not in violation of
any material federal, state or local law, rule, ordinance or regulation. Bank
will promptly provide to Buyers copies of all examination reports of and
material communications with all federal and state regulatory authorities from
the date hereof until the Closing Date.
3.7 Contracts and Commitments. As of the date of this
Agreement, Bank has supplied Buyers with copies of all contracts, leases,
licenses, pension or profit sharing agreements and other agreements ("Plans")
relating in any way to Bank, such agreements being described in Exhibit "B"
hereto. To the best of Bank's knowledge, there have been no material breaches
of or defaults under any of the provisions of any such contracts, leases,
licenses, Plans or other agreements, not previously cured. No prohibited
transaction (as defined in Section 406 of ERISA and Section 4975 of the
Internal Revenue Code) (the "Code"), accumulated funding deficiency (as defined
in Section 412 of the Code) or reportable event (as defined in Section 4043 of
ERISA) has occurred with respect to any Plan. The present value of all
benefits vested under all Plans does not exceed the value of the assets of such
Plans allocable to such vested benefits.
3.8 Assets Employed. All of Bank's significant tangible
assets are reflected in the financial statements delivered pursuant to Section
3.4 hereof, and such assets constitute all of the significant tangible assets
necessary to or used or employed in the business and operations of Bank as
currently conducted. Bank has
10
11
good, indefeasible, marketable title to all of its significant tangible assets
free of all liens, encumbrances and claims, except as required by law for
deposits of public funds and to secure repurchase agreements. Leases covering
material tangible assets in which Bank has a leasehold interest only are valid
and enforceable in accordance with their terms and the Merger will not result
in a default thereunder.
3.9 Litigation. Except as described in Exhibit "C"
(Pending Litigation), neither Bank nor any of its officers or directors is (i)
a party to any action, suit or proceeding or (ii) subject to any pending or
threatened administrative, judicial or other action, suit, proceeding, inquiry
or investigation nor is there any basis known to Bank therefor.
3.10 Brokers, Finders or Advisers. Bank has not employed
or incurred any liability to any broker, finder or adviser in connection with
the transactions contemplated by this Agreement.
3.11 Taxes. The amounts provided for taxes on the audited
financial statement for the period ended December 31, 1996, are sufficient in
all material respects for the payment of all accrued and unpaid federal, state,
county and municipal taxes and all levies, licenses, franchise and registration
fees, charges or withholdings of any nature whatsoever of Bank for the period
ending on the date of such financial statements and for all prior periods.
Bank has filed all material federal, state, county, municipal and other tax
returns and all other reports which are required to be filed in respect of all
such taxes and, to the extent that its
11
12
liabilities for taxes have not been fully discharged, full and adequate
reserves have been established in the financial statements therefor. The
federal income tax returns of Bank have been audited by the Internal Revenue
Service through the year ending December 31, 1993. Bank is not in default in
the payment of any taxes due or payable or of any assessments of any kind, and
has not received any notice of material assessment or proposed material
assessment of any tax.
3.12 Insurance. True and correct copies of all insurance
policies covering Bank or its officers, directors or employees have been
provided to Buyers, such policies being described in Exhibit "D" hereto. Such
insurance policies, or policies providing substantially equivalent coverage,
have been in force continuously, without gaps in coverage, for at least the
preceding three (3) years and provide the coverage indicated, or substantially
equivalent coverages, for all insurable events occurring during such three year
period.
3.13 Parent, Subsidiaries. Bank has no parent corporation
or subsidiaries.
3.14 Other Regulatory Filings. Subject to applicable
disclosure restrictions, Bank has delivered to Buyers true and correct copies
of all reports filed by it with the Mississippi Department of Banking and
Consumer Finance and Federal Deposit Insurance Corporation and any other
financial regulatory agency since January 1, 1994, such reports being described
in Exhibit "E" hereto. Each of such reports is true and correct in all
material respects.
12
13
3.15 Full Disclosure. To the best of Bank's knowledge,
this Agreement, including all information provided to Buyers pursuant to this
Agreement, does not contain any untrue statement of material fact and Bank has
not omitted to disclose to Buyers any material fact concerning the financial
condition, properties or prospects of Bank.
3.16 Disclosure Documents. With respect to information
supplied or to be supplied by Banks for inclusion in the proxy statement
relating to the meeting of Bank's stockholders for the approval of the Merger
(the "Proxy Statement") and the registration statement on Form S-4 (or other
appropriate registration form) to be filed with the Securities and Exchange
Commission by Trustmark for the registration of the shares of Trustmark common
stock to be offered and sold in the Merger (the "Registration Statement"), (i)
the Proxy Statement, at the time of the mailing thereof to stockholders of Bank
and at the time of the meeting of Bank's stockholders will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading and (ii)
the Registration Statement, at the time it becomes effective under the
Securities Act, will not 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.
13
14
4. REPRESENTATIONS AND WARRANTIES OF BUYERS.
In order to induce Bank to enter into this Agreement and to
consummate the transactions contemplated herein, Buyers represent and warrant
the following matters to Bank, each of which is being relied on by Bank, which
representations and warranties shall, individually and in the aggregate, be
true in all material respects upon the date of this Agreement and on the
Closing Date and shall not survive the Closing Date:
4.1 Organization, Power and Authorization. Trustmark is
a Mississippi corporation, duly organized, validly existing and in good
standing under the laws of the state of Mississippi and has all requisite
corporate power and authority to carry on its business as it is now being
conducted and to own and lease its properties. The business activities of
Trustmark do not require it to be qualified to do business in any other state.
The execution and performance of this Agreement and Bank Merger have been duly
authorized by the Board of Directors of Trustmark and upon obtaining the
approval of all governmental and regulatory agencies or authorities whose
approval is required as identified in Section 4.11 (and such approvals are no
longer subject to judicial or administrative review, and all waiting periods
required by law have expired), this Agreement will be a valid, binding
obligation of Trustmark, enforceable in accordance with its terms.
Trustmark Bank is a national banking association duly
organized, validly existing and in good standing under the laws of
14
15
the United States and has all requisite corporate power and authority to carry
on its business as it is now being conducted and to own and lease its
properties. The business activities of Trustmark Bank do not require it to be
qualified to do business in any other state. The execution and performance of
this Agreement and the Bank Merger have been duly authorized by the Board of
Directors of Trustmark Bank and upon obtaining the approval of all
governmental and regulatory agencies or authorities whose approval is required
as identified in Section 4.11 (and such approvals are no longer subject to
judicial or administrative review, and all waiting periods required by law have
expired), this Agreement will be a valid, binding obligation of Trustmark Bank,
enforceable in accordance with its terms.
4.2 Absence of Conflict. The execution and delivery of
this Agreement and the performance and compliance with the terms hereof by
Buyers will not: (i) conflict with or result in the breach of the charter or
bylaws of Buyers, (ii) result in a breach of or default under any agreement to
which Buyers are presently a party, or (iii) conflict with or result in the
breach of any law, rule or regulation, or any writ, injunction or decree of any
court or governmental agency.
4.3 Capitalization. The authorized capital stock of
Trustmark consists of 100,000,000 shares of common stock, no par value, of
which 36,386,808 shares are presently issued and outstanding.
The authorized capital stock of Trustmark Bank consists of
2,677,955 shares of common stock, $5.00 par value, of which 2,677,955 shares
are presently issued and outstanding.
15
16
Other than as described herein, neither Trustmark nor
Trustmark Bank presently has outstanding any other securities or any options,
warrants, rights, calls or other commitments to issue any securities or to
convert any presently outstanding securities into securities of a different
kind or class. Bank and Buyers understand and agree that Trustmark Bank and
Trustmark may issue additional shares of common stock or other securities at
any time for the purpose of making acquisitions or for other business purposes.
4.4 Financial Statements. Buyers have delivered to Bank
the audited financial statements of Trustmark and its consolidated subsidiaries
for the periods ended December 31, 1994, December 31, 1995, and December 31,
1996. As promptly as same are available, Buyers shall deliver to Bank a copy
of any subsequent quarterly and annual financial statements of Trustmark and
consolidated subsidiaries, and quarterly call reports of Trustmark Bank. The
financial statements delivered pursuant to this Section 4.4 (subject to audit
adjustments to any unaudited financial statements) do and will fairly present
the financial conditions of Trustmark and consolidated subsidiaries as of the
dates thereof in all material respects and have been or will be prepared in
conformity with generally accepted accounting principles, consistently applied,
for the periods involved. All other statements and reports delivered pursuant
to this Section 4.4 will fairly present the financial information purported to
be shown therein in all material respects.
4.5 Absence of Undisclosed Liabilities. Neither
Trustmark nor Trustmark Bank has any known liabilities or obligations of any
16
17
nature whatsoever, whether absolute, accrued, contingent or otherwise, due or
to become due, as principal or guarantor, not recorded or disclosed in the
audited financial statements for the period ended December 31, 1996, or
otherwise disclosed in this Agreement or the documents, statements, lists and
schedules referred to herein and delivered on the date hereof which could have
a material adverse effect on the financial condition, properties or prospects
of Trustmark or Trustmark Bank.
4.6 Assets Employed. All of Trustmark and Trustmark
Bank's significant tangible assets are reflected in the financial statements
delivered pursuant to Section 4.4 hereof in accordance with generally accepted
accounting principles, and such assets constitute all of the significant
tangible assets necessary to or used or employed in the business and operations
of Trustmark and Trustmark Bank as currently conducted. Trustmark and
Trustmark Bank have good, indefeasible, marketable title to all of their
significant tangible assets free of all liens, encumbrances and claims, except
as required by law for deposits of public funds and to secure repurchase
agreements. Leases covering material tangible assets in which Trustmark Bank
has a leasehold interest only are valid and enforceable in accordance with
their terms and the Merger will not result in a default thereunder.
4.7 Taxes. The amounts provided for taxes on the audited
financial statement for the period ending December 31, 1996, are sufficient in
all material respects for the payment of all accrued and unpaid federal, state,
county and municipal taxes and all levies, licenses, franchise and registration
fees, charges or withholdings of any nature whatsoever of Trustmark and
Trustmark
17
18
Bank for the period ending on the date of such financial statements and for all
prior periods. Trustmark and Trustmark Bank have filed all material federal,
state, county, municipal and other tax returns and all other material reports
which are required to be filed in respect of all such taxes and, to the extent
that their liabilities for taxes have not been fully discharged, full and
adequate reserves have been established in the financial statements therefor.
Neither Trustmark nor Trustmark Bank is in default in the payment of any taxes
due or payable or of any assessments of any kind, and neither has received any
notice of material assessment or proposed material assessment of any tax.
4.8 Exchange Act Filings. Trustmark has filed with or
furnished to the Securities and Exchange Commission, as applicable, all annual,
quarterly and other reports, all proxy statements and all annual reports to
stockholders required by the Exchange Act to be so filed or furnished. Such
reports and proxy statements are true and correct in all material respects and
do not omit to state a material fact required to be stated therein or necessary
to make the statement contained therein, in light of the circumstances under
which they were made, not misleading. The financial statements and schedules
included in such reports and proxy statements, together with the notes
thereto, represent fairly, in all material respects, the financial position of
Trustmark and its consolidated subsidiaries, as of their respective dates and
the results of operations and changes in financial position for the periods
indicated therein, in each case in conformity with generally accepted
accounting principles, consistently applied.
18
19
4.9 Full Disclosure. To the best of Buyers' knowledge,
this Agreement, including all information provided to Bank pursuant to this
Agreement, does not contain any untrue statement of material fact and Buyers
have not omitted to disclose to Bank any material fact concerning the financial
condition, properties or prospects of Trustmark or Trustmark Bank.
4.10 Brokers, Finders or Advisers. None of the Buyers
has employed, or incurred any liability to, any broker, finder or adviser in
connection with the transactions contemplated by this Agreement.
4.11 Governmental and Judicial Consents and Approvals.
The execution, delivery and performance by Buyers of this Agreement, and the
consummation of the transactions contemplated by this Agreement, require no
action by or in respect of, or filing with, any governmental or judicial body,
agency, official or authority other than:
(a) compliance with the applicable requirements, if any,
of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended;
(b) compliance with the applicable requirements of the
Securities Exchange Act of 1934 ("Exchange Act") and the rules and regulations
promulgated thereunder;
(c) compliance with the applicable requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations promulgated thereunder;
(d) compliance with applicable foreign or state
securities or "blue sky" laws;
19
20
(e) compliance with the applicable requirements of the
Bank Holding Company Act of 1956 and the National Bank Act, both as amended;
and
(f) such other filings or registrations with, or
authorizations, consents or approvals of, governmental bodies, agencies,
officials or authorities, the failure of which to make or obtain would not
materially and adversely affect the ability of Buyers to consummate the Merger.
4.12 Litigation. Except as disclosed in the reports
referred to in Section 4.8 or as set forth in Exhibit "F", none of Buyers is a
party to any action, suit or proceeding, or is subject to any pending or
threatened administrative, judicial or other action, suit, proceeding, inquiry
or investigation, in which an unfavorable decision, ruling or finding could
have a material adverse effect on the financial condition or operations of
Trustmark and its consolidated subsidiaries taken as a whole or on the
consummation of the transactions contemplated by this Agreement, and to the
knowledge of Buyers there is no basis for any such action, suit, proceeding,
inquiry or investigation.
4.13 Disclosure Documents. With respect to information
supplied or to be supplied by Buyers for inclusion in the proxy statement
relating to the meeting of Bank's stockholders for the approval of the Merger
(the "Proxy Statement") and the registration statement on Form S-4 (or other
appropriate registration form) to be filed with the Securities and Exchange
Commission by Trustmark for the registration of the shares of Trustmark common
stock to be offered and sold in the Merger (the "Registration Statement"), (i)
the Proxy Statement, at the time of the mailing thereof to
20
21
stockholders of Bank and at the Meeting Date, will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they are made, not misleading and (ii) the
Registration Statement, at the time it becomes effective under the Securities
Act, will not 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. The Registration Statement will comply as
to form in all material respects with the provisions of the Securities Act and
Exchange Act, respectively, and the rules and regulations thereunder.
4.14 Absence of Certain Changes. Since December 31,
1996, Trustmark and its subsidiaries have in all material respects conducted
their businesses in the ordinary course and there has not been:
(a) any material adverse change with respect to the
business, financial condition or prospects of Trustmark and its subsidiaries:
(b) except for regular dividends declared in the ordinary
course of business, any declaration, setting aside or payments of any dividend
or other distribution in respect of any shares of capital stock of Trustmark,
or any repurchase, redemption or other acquisition by Trustmark of any
outstanding shares of capital stock;
(c) any amendment of any material term of any outstanding
Trustmark capital stock;
21
22
(d) any material damage, destruction or other casualty
loss (whether or not covered by insurance) affecting the business or assets of
Trustmark or any of its subsidiaries; or
(e) any material change in any method of accounting or
accounting practice by Trustmark or any of its subsidiaries, except for any
such change that is required by reason of a concurrent change in generally
accepted accounting principles.
4.15 Compliance with Laws. Neither Trustmark nor Trustmark
Bank has, in its best judgment, any material uncorrected deficiencies noted in
any examination report by federal or state regulatory authorities or is in
violation of any material federal, state or local law, rule, ordinance or
regulation.
5. SPECIAL AGREEMENTS.
5.1 Dividends. On June 30, 1997, Bank shall be permitted
to declare and pay a cash dividend out of current operating profits earned
since January 1, 1997 of up to $10.00 per share; and if the Closing of the
transaction has not occurred by the end of each subsequent calendar quarter, a
dividend out of current operating profits earned during each full calendar
quarter subsequent to June 30, 1997 or prorated portion thereof of up to $5.00
per share until the Closing shall have occurred. Except as set forth in this
Section 5.1, Bank shall not declare any cash or other dividends prior to the
Closing.
5.2 Employment. Trustmark intends to continue the
employment of the employees of Bank after the Closing Date. However, as
employees of Trustmark, such persons are subject to salary review, reassignment
and termination in the same manner as other employees of Trustmark.
22
23
5.3 Confidentiality. Buyers and Bank represent and agree
that any confidential information received concerning the other in connection
with the transactions contemplated by this Agreement shall be maintained as
confidential, and in the event the Closing does not occur without the default
of either party, Buyers and Bank agree to return all materials concerning the
other to the party from which obtained. Notwithstanding this Section 5.3,
either party may disclose any such information to the extent required by
federal securities laws or otherwise required by any governmental agency or
authority.
5.4 Covenant Not to Compete. Each Director of Bank
agrees that for the period from the date hereof until one year after the
Closing Date, he will not become directly, indirectly or beneficially an
employee, five percent or more stockholder or director of any bank, savings
bank, savings association, trust company, financial institution or other
similar business enterprise which competes with Trustmark Bank within Perry
County, Mississippi. Other than in the capacity of an officer of Trustmark
Bank subsequent to Closing, the Directors of Bank further agree not to initiate
any action to induce any officer of Trustmark Bank to leave Trustmark Bank's
employment or directly or indirectly assist any other person or entity in
requesting or inducing any such other employee of Trustmark Bank to leave such
employment for the period from the date hereof until one year after the Closing
Date.
5.5 Payment of Expenses. Except as otherwise provided
herein, Buyers and Bank shall bear their own expenses in connection with the
negotiation and consummation of the transactions contemplated by this
Agreement.
23
24
5.6 Employee Benefit Plans. Following the Closing Date,
the employees of Bank will be entitled to the same employee benefits as are
presently being provided to employees of Trustmark Bank. At Buyer's option,
Bank's existing retirement plan shall either be (i) terminated on the Closing
Date and, with Buyer's assistance, converted to self-directed individual
retirement accounts for the employees or (ii) if permissible under applicable
laws, rules and regulations and with the consent of the Bank, Bank's existing
plan will be merged with Buyer's existing retirement plan. All employees of
Bank will receive credit for years of service at Bank for purposes of vesting
in Buyer's retirement plan.
5.7 Recommendation of Directors; Voting of Shares. The
Board of Directors of Bank hereby agree to recommend that the shareholders of
Bank approve the Merger, to vote their Bank shares in favor of the Merger and
to take all action reasonably required to effect the Merger.
5.8 Public Announcements. The parties will consult with
each other as to the timing, form and content of all public announcements
regarding any aspect of this Agreement or the Merger, provided that no party
hereto shall be prohibited from making any press release or other public
statement which its legal counsel deems necessary.
5.9 Due Diligence. Buyers shall promptly conduct a due
diligence examination of the books, records, assets, and liabilities of Bank,
which shall be completed no later than thirty (30) days after the date hereof.
If such inquiry or examination
24
25
should reveal any previously unknown financial information which Buyers, in
their sole discretion, deem to be adverse, then Buyers may promptly notify Bank
of such finding and may exercise their right of termination set forth in
Section 11(d) of this Agreement.
5.10 Credit Extensions. Banks agree to notify and consult
with Buyers before making, advancing, extending or renewing any loans or
credits above $75,000 before the Closing Date.
5.11 Community Bank Branch Office. Following the
consummation of the Merger, Bank will operate as a separate community bank
branch office of Trustmark Bank, subject to reevaluation and reorganization in
the same manner as all other community bank branch offices of Trustmark Bank.
5.12 Fairness Opinion. Buyers shall obtain, at Buyers'
expense, an opinion that the Merger is fair, from a financial point of view, to
the shareholders of Trustmark and Trustmark Bank.
6. COVENANTS OF BANK PENDING CLOSING.
6.1 Shareholders' Meeting. As promptly as practical
after the effective date of the Registration Statement for the Trustmark shares
to be issued in connection with the Merger, Bank and its directors shall cause
to be convened a meeting of the shareholders of Bank for the purpose of
approving the Merger and completing the Forms of Election. Such meeting shall
be properly called and held in accordance with applicable law and the articles
of association and bylaws of Bank.
6.2 Documents of Title. Bank agrees to allow Buyers to
examine all documents relating to any real or personal property owned by Bank.
25
26
6.3 Access to Properties and Records. Bank will provide
Buyers and their authorized representatives full access during normal business
hours and under reasonable circumstances to any and all of its premises,
properties, contracts, commitments, books, records and other information and
will cause its officers to furnish any and all financial, technical and
operating data and other information pertaining to its business as Buyers shall
from time to time reasonably request.
6.4 Solicitation of Further Offers. From the date
hereof until the termination of this Agreement, subject to their fiduciary
obligations and duties, Bank and its Boards of Directors will not, directly or
indirectly, take any action to solicit, initiate or encourage the making of any
Acquisition Proposal (as hereinafter defined); nor will they enter into any
negotiations concerning, furnish any non-public information relating to Bank in
connection with, or agree to any Acquisition Proposal. The term "Acquisition
Proposal" as used herein means any offer or proposal for, or any indication of
interest in, a merger or other business combination involving Bank, or the
acquisition of a majority of the outstanding shares of Bank's common stock or a
majority of the assets of Bank, other than the transaction contemplated by
this Agreement.
6.5 Other Affirmative Covenants. Bank covenants with
Buyers that at all times prior to the Closing Date, Bank will:
(a) Operate its business in substantially the manner in
which such business is now being operated and use its reasonable efforts to
maintain the goodwill of the depositors, customers and suppliers of Bank;
26
27
(b) Use its reasonable efforts to retain the services of
its officers and employees; provided, however, that Bank shall have the right
to terminate the employment of any officer or employee in accordance with
established procedures;
(c) Maintain its properties in good repair and working
order, reasonable wear and tear excepted;
(d) Duly and timely file all reports, tax returns and
other documents required to be filed with federal, state and local tax and
regulatory authorities;
(e) Unless contesting same in good faith by appropriate
proceedings and having established reasonable reserves therefor, pay, when
required to be paid, all taxes indicated by tax returns as filed or otherwise
levied or assessed upon it or any of its properties and to withhold or collect
and pay to the proper governmental authorities or hold in separate bank
accounts for such payments all taxes and other assessments required by law to
be withheld or collected;
(f) Notify Buyers of any unusual or material problems or
developments with respect to its business; and
(g) Use its reasonable efforts to bring about the
transaction contemplated by this Agreement.
6.6 Negative Covenants of Bank. From the date hereof
until the Closing Date, without the prior written consent of Buyers, Bank will
not:
(a) Incur any material obligation except current
contracts entered into in the ordinary course of business;
(b) Increase the compensation of any director, and,
except for normal increases as a result of regular salary reviews
27
28
for officers and employees that will be conducted in January of 1998 if the
Mergers have not been consummated by such date, increase the compensation of
any officer or employee or enter into or amend any contract of employment or
enter into or amend any insurance, profit-sharing, pension, severance pay,
bonus, incentive, deferred compensation or retirement plan or arrangement;
(c) Amend its articles of association or bylaws;
(d) Sell, transfer or convey any of its investment
securities other than in the ordinary course of business;
(e) Sell, assign or transfer any of its assets other than
in the ordinary course of business;
(f) Mortgage, pledge or subject to any lien, charge or
encumbrance any of its assets except in the ordinary course of business;
(g) Intentionally waive any material right, contractual
or otherwise, or cancel or release any material debts or claims whether or not
in the ordinary course of business;
(h) Intentionally suffer any material uninsured damage,
destruction or loss to its tangible properties;
(i) Except to the extent permitted pursuant to Section
5.1 hereof, declare or pay any dividend or make any other distribution with
respect to its stock;
(j) Make, extend or renew any loan or other extension of
credit to any of its officers, directors, or employees other than loans made on
substantially the same terms, including interest rates and collateral, as those
prevailing at the time for comparable transactions with other persons and that
do not involve more than normal risk of collectability or present other
unfavorable features;
28
29
(k) Issue or sell any of its capital stock, or any of its
debt securities, authorize a stock split or dividend, or otherwise affect its
capital structure;
(l) Take any action that causes a failure to comply with
any representation, warranty or covenant contained herein;
(m) Make, advance, extend or renew any loan or credit
above $75,000; or
(n) Enter into any agreement to do any of the foregoing
matters.
7. COVENANTS OF BUYERS PENDING CLOSING.
7.1 Corporate Action. Prior to the Closing Date, Buyers
shall cause the Merger to be approved by the directors of Trustmark and the
shareholder of Trustmark Bank.
7.2 Other Affirmative Covenants. Buyers covenant with
Bank that at all times prior to the Closing Date, Buyers will and will cause
Trustmark Bank to:
(a) Operate their businesses in substantially the manner
in which such businesses are now being operated and use their reasonable
efforts to maintain the good will of the depositors, customers and suppliers of
Trustmark Bank;
(b) Use their reasonable efforts to retain the services
of the officers and employees of Trustmark Bank; provided, however, that Buyers
shall have the right to terminate the employment of any officer or employee of
either of them in accordance with established procedures;
29
30
(c) Maintain their properties in good repair and working
order, reasonable wear and tear excepted;
(d) Duly and timely file all reports, tax returns and
other documents required to be filed with federal, state and local tax and
regulatory authorities;
(e) Unless contesting same in good faith by appropriate
proceedings and having established reasonable reserves therefor, pay, when
required to be paid, all taxes indicated by tax returns as filed or otherwise
levied or assessed upon them or any of their properties and to withhold or
collect and pay to the proper governmental authorities or hold in separate bank
accounts for such payments all taxes and other assessments either of them is
required by law to withhold or collect;
(f) Use their reasonable efforts to bring about the
transaction contemplated by this Agreement; and
(g) Notify Bank of any unusual or material problems or
developments with respect to the business of Trustmark or Trustmark Bank.
8. CONDITIONS PRECEDENT TO BUYERS' OBLIGATIONS TO CLOSE.
Buyers obligations to consummate the Merger are subject to
each of the following conditions precedent, any of which may be waived by
Buyers in writing.
8.1 Warranties and Representations at Closing. All
warranties and representations contained in this Agreement by or concerning
Bank shall be true and correct on the Closing Date in all material respects.
30
31
8.2 Governmental Authority Approval. The consummation of
the Bank Merger shall have been approved by all governmental and regulatory
agencies or authorities whose approval is required, such approvals shall be in
full force and effect and no longer subject to judicial or administrative
review and all waiting periods required by law shall have expired.
8.3 Corporate Approval. The Merger shall have been
authorized by the Board of Directors and shareholders of Bank in accordance
with the provisions of applicable law and the articles of association and
bylaws of Bank, and Bank shall have furnished Buyers with certified copies of
resolutions duly adopted by the Board of Directors and shareholders of Bank
approving this Agreement and authorizing the Merger.
8.4 Compliance with Undertakings. Each of the acts,
covenants, agreements and undertakings of Bank and its directors to be
performed or caused to be complied with on or before the Closing Date pursuant
to the terms hereof shall have been duly performed and caused to be complied
with in all material respects.
8.5 No Material Adverse Change. There shall have been no
material adverse change in the financial condition, tangible properties or
prospects of Bank since December 31, 1996, other than as a result of the
transactions contemplated hereby.
8.6 Federal Income Taxation. Buyers shall be satisfied
that the Merger will qualify as a tax-free reorganization under Section 368 of
the Code.
8.7 Fairness Opinion. Buyers shall have received the
fairness opinion described in Section 5.12 of the Agreement.
31
32
8.8 Opinion of Counsel. Bank shall cause to be delivered
to Trustmark the opinion of Xxxxxx, Perry, Watkins, Xxxxx & Tardy, PLLC as of
the Closing Date to the effect that:
(a) Bank is duly organized, validly existing and in good
standing as a state-chartered banking institution under the laws of the State
of Mississippi. To the actual knowledge of such counsel, and following
reasonable inquiry, but without independent verification of facts presented or
represented by Bank to such counsel and with the ability to rely upon
certifications of officers, Bank's authorized capitalization consists of ____
common shares, of which 12,500 shares are issued and outstanding and such
outstanding shares have been duly authorized and validly issued and are fully
paid and not assessable.
(b) This Agreement is valid, binding and enforceable
against Bank in accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium, reorganization or other laws of general application
relating to or affecting the enforcement of creditors' rights generally.
(c) The Merger has been duly authorized by all requisite
corporate and shareholder action of Bank.
(d) Such counsel has no actual knowledge, following
reasonable inquiry, but without independent verification of facts presented or
represented by Bank to such counsel and with the ability to rely upon
certificates of officers and other legal opinions, of any material
misrepresentation, breach of any material warranty or breach of any material
covenant or condition in this Agreement or in any document, statement, list or
schedule referred to herein, by Bank.
32
33
8.9 Special Financial Covenants. On the Closing Date,
the reserve for loan losses then maintained by Bank shall adequately provide
for the anticipated loan losses of Bank as of such date in accordance with
accepted audit, bank examination and bank regulatory standards. Further, the
tangible assets of Bank, shall have a fair market value equal to or greater
than its liabilities.
8.10 Closing Certificate. At the Closing, the Chairman of
the Board and President of Bank shall execute and deliver a closing certificate
to the effect that all representations and warranties by or concerning Bank are
true and correct as of the Closing Date and that all other conditions precedent
to Buyers' obligations to close have been performed and complied with in all
material respects.
9. CONDITIONS PRECEDENT TO BANK'S OBLIGATION TO CLOSE.
Bank's obligation to consummate the Merger is subject to each
of the following conditions precedent, any of which may be waived by Bank in
writing.
9.1 Warranties and Representations at Closing. All
warranties and representations contained in this Agreement by or concerning
Buyers shall be materially true and correct on the Closing Date; provided,
nothing in this Agreement shall prohibit or impair the ability of Trustmark or
Trustmark Bank to make further acquisitions using cash or through the issuance
of additional securities or to issue additional securities for other business
purposes.
33
34
9.2 Governmental Authority Approval. The consummation of
the Merger shall have been approved by all governmental and regulatory agencies
or authorities whose approval is required, such approvals shall be in full
force and effect and no longer subject to judicial or administrative review and
all waiting periods required by law shall have expired.
9.3 Corporate Approval. The Merger shall have been
authorized by the Board of Directors of Trustmark and Trustmark Bank and the
shareholder of Trustmark Bank in accordance with the provisions of applicable
law and the articles and bylaws of Trustmark Bank.
9.4 Compliance with Undertakings. Each of the acts,
covenants, agreements and undertakings of Buyers to be performed or caused to
be complied with on or before the Closing Date pursuant to the terms hereof
shall have been duly performed and caused to be complied with in all material
respects.
9.5 No Material Adverse Change. There shall have been no
material adverse change in the condition, financial or otherwise, of Trustmark
Bank since December 31, 1996, other than as a result of the transaction
contemplated hereby.
9.6 Federal Income Taxation. Bank shall be satisfied
that the Merger will qualify as a tax-free reorganization under Section 368 of
the Code.
9.7 Opinion of Counsel. Buyers shall cause to be
delivered to Bank the opinion of Brunini, Grantham, Grower & Xxxxx, PLLC to the
effect that:
(a) Trustmark Bank is duly organized, validly existing
and in good standing as a national banking association.
34
35
(b) Trustmark is a duly organized, validly existing
corporation in good standing under the laws of the State of Mississippi. The
outstanding shares of Trustmark's common stock are, and the shares of
Trustmark common stock to be issued as a result of Bank, upon execution and
delivery, will be, in each case duly authorized, validly issued, fully paid,
and nonassessable. The shares of Trustmark common stock are validly registered
under the Securities Act of 1933.
(c) This Agreement is valid, binding and enforceable
against Buyers in accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium, reorganization or other laws of general application
relating to or affecting the enforcement of creditors' rights generally.
(d) The Merger has been duly authorized by all requisite
corporate and shareholder action of Trustmark and Trustmark Bank, and has been
appropriately approved by all applicable regulatory authorities.
(e) Such counsel has no actual knowledge, following
diligent inquiry, but without independent verification of facts certified by
appropriate officials of Trustmark and/or Trustmark Bank and relied upon by
such counsel, of any material misrepresentation, material breach of any
warranty or breach of any material covenant or condition in this Agreement or
in any document, statement, list or schedule referred to herein by the Buyers.
9.8 Closing Certificate. At the Closing, the Chairman of
the Board and President of Trustmark shall execute and deliver a closing
certificate to the effect that all representations and
35
36
warranties by or concerning Trustmark and Trustmark Bank are true and correct
in all material respects as of the Closing Date and that all other conditions
precedent to Bank's obligation to Close have been performed and complied with
in all material respects.
10. CLOSING.
On the Closing Date, subject to the terms and conditions set forth in
this Agreement, Bank shall merge with and into Trustmark Bank pursuant to the
Plan and Agreement of Merger attached as Exhibit "A." The Merger will be
effective (the "Effective Time of the Merger") upon the date established by the
United States Comptroller of the Currency.
At the Effective Time of the Merger, the separate corporate existence
of Bank shall cease and Trustmark Bank shall be the surviving association of
the Merger.
The Closing will take place at the main office of Bank on a date
selected by Buyers within 30 days after all conditions to Closing have been
satisfied or waived (the "Closing Date"). At the Closing, the certificates,
letters and opinions required by Articles 8 and 9 hereof shall be delivered and
the appropriate officers of Bank, Trustmark and Trustmark Bank shall execute,
deliver, acknowledge and file such documents, instruments and certificates
required by this Agreement or otherwise necessary to accomplish the Merger.
11. TERMINATION.
This Agreement may be terminated and the Merger and the Closing
abandoned at any time prior to the Closing Date without liability on the part
of Bank or Buyers, as follows:
36
37
(a) By the mutual consents of the boards of directors of
Bank and Trustmark;
(b) By any party if a state or federal governmental
agency or authority shall at any time fail to approve the transactions
contemplated by this Agreement or shall have instituted and not dismissed court
proceedings to restrain or prohibit such transactions and such court
proceedings have not been resolved prior to one year after the date of this
Agreement.
(c) By any party if the Closing Date shall not have
occurred on or prior to the day that is one year after the date of this
Agreement without the fault of such party;
(d) By Trustmark or Trustmark Bank at any time during
the due diligence examination period as provided in Section 5.9 if such
examination, in Buyers' opinion, reveals previously unknown, adverse
information concerning Bank; or
(e) By Trustmark, if at the time of such termination
there shall be a material adverse change in the financial condition or tangible
properties of Bank arising subsequent to the completion of due diligence as
referred to in Section 5.9 hereof.
(f) By Bank, if at the time of such termination there
shall be a material adverse change in the financial condition or tangible
properties of Buyers arising subsequent to December 31, 1996.
(g) By either Buyers or Bank in accordance with and
subject to the provisions of Section 2.3 hereof.
(h) By either Buyers or Bank, if the stockholders of
Bank fail to approve the Merger at the meeting of stockholders called for such
purposes (including any adjournment or postponement thereof);
37
38
(i) By Buyers if there has been a material breach by Bank
(A) of any of its representations and warranties set forth herein, or (B) of
any of its obligations herein which has not been promptly cured after notice
thereof from Buyers;
(j) By Bank if there has been a material breach by either
of the Buyers (A) of any of its representations and warranties set forth herein
or (B) of any of its obligations hereunder which has not been promptly cured
after notice thereof by Bank.
12. MISCELLANEOUS.
12.1 Further Assurances. If, at any time after the
Effective Time of the Merger, Buyers shall consider or be advised that any
deeds, bills of sale, assignments, assurances or any other actions or things
are necessary or desirable to vest, perfect or confirm, of record or otherwise,
in Trustmark Bank its right, title or interest in, to or under any of the
rights, properties or assets of Bank acquired or to be acquired as a result of
the Merger or to otherwise carry out this Agreement, the officers and directors
of Buyers shall, and will be authorized to, execute and deliver, in the name
and on behalf of Bank all such deeds, bills of sale, assignments and assurances
and take and do, in the name of and on behalf of Bank, all such other actions
and things as may be necessary or desirable to vest, perfect or confirm any and
all right, title and interest in, to and under such rights, properties or
assets in Trustmark Bank or to otherwise carry out this Agreement.
38
39
12.2 Applicable Law. This Agreement shall be construed in
accordance with the laws of the State of Mississippi, except to the extent
federal law is applicable.
12.3 Notices and Communications. Any and all notices or
other communications required or permitted under this Agreement shall be in
writing and shall be deemed given when delivered in person or 5 days after
being mailed by United States certified or registered mail, return receipt
requested, postage prepaid and addressed:
TO: Perry County Bank
Attn: X. X. Xxxxxx, Xx.
000 Xxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
WITH A COPY TO: Xxxxxx X. Xxxxxxx
Xxxxxx, Perry, Watkins, Xxxxx & Tardy, PLLC
000 X. Xxxxxxx Xxxxxx, 0xx Xxxxx
P. O. Xxx 00000
Xxxxxxx, XX 00000-0000
TO: Trustmark or Trustmark Bank
ATTN: Xxxxxx X. Host
000 X. Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
WITH A COPY TO: Xxxxxxxxx Xxxx, Xx.
Brunini, Grantham, Grower & Xxxxx, PLLC
P. O. Drawer 119
Jackson, Mississippi 39205
Any party may change the address to which notice or other
communication to him or it is sent by delivery of written notice of the change
to the other parties to this Agreement.
12.4 Headings and Exhibits. Any section headings in this
Agreement are for convenience of reference only and shall not be deemed to
alter or affect any provisions hereof. All documents, statements, lists and
schedules referred to herein shall be
39
40
initialed for identification or may be physically annexed hereto, but in either
event such documents, statements, lists and schedules shall be deemed a part
hereof.
12.5 Benefit. This Agreement shall be binding upon and
shall inure to the exclusive benefit of the parties hereto, their heirs,
successors or assigns. This Agreement is not intended to nor shall it create
any rights in any other party.
12.6 Partial Invalidity. The invalidity or
unenforceability of any particular provision of this Agreement shall not affect
the other provisions hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provision were omitted.
12.7 Waiver. Neither the failure nor any delay on the
part of any party hereto in exercising any right, power or remedy hereunder
shall operate as a waiver thereof, or of any other right, power or remedy; nor
shall any single or partial exercise of any right, power or remedy preclude any
further or other exercise thereof or the exercise of any other right, power or
remedy.
12.8 Counterparts. This Agreement may be executed
simultaneously in one or more counterparts each of which shall be deemed an
original and all of which together shall constitute but one and the same
instrument.
12.9 Interpretation. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine, neuter, singular
or plural as the identity of the person or entity or the context may require.
Further, it is acknowledged by the parties that this Agreement has been drafted
and negotiated by both parties hereto and, therefore, no presumptions shall
arise favoring either party by virtue of the authorship of any of its
provisions.
40
41
12.10 Entire Agreement. This Agreement and the documents,
statements, lists and schedules referred to herein constitute the entire
Agreement between the parties hereto, and it is understood and agreed that all
undertakings, negotiations and agreements heretofore had between the parties
are merged herein. This Agreement may not be modified orally, but only by an
agreement in writing signed by either Trustmark or Trustmark Bank, on the one
hand, and Bank, on the other.
12.11 Time of the Essence. With respect to any act called
for by any party to this Agreement, including regulatory authority approvals
and registration of the Trustmark shares with appropriate state and federal
agencies, time is of the essence.
12.12 Definition of Material. With reference to the
representations, warranties and covenants of Bank contained in this Agreement,
such representations, warranties and covenants shall be strictly satisfied and
complied with. Accordingly, when used with reference to Bank "material" and
"materially" shall be understood to mean a breach of any representation,
warranty or covenant contained in this Agreement which, separately or in the
aggregate with any other such breach, does or could result in a cost, loss,
detriment or obligation in excess of $200,000. Provided, however, with
reference to the representations, warranties and covenants of Buyers contained
in this Agreement, "material" and "materially" shall have the meaning normally
accorded such terms considering the relative importance of such representation,
warranty or covenant in the context of a business of the type and size of
Buyers. Any
41
42
reduction in the book value of Bank or Trustmark which may result by virtue of
the adoption of SFAS No. 115 "Accounting for Certain Investments in Debt and
Equity Securities" shall not constitute a material adverse change in the
condition, financial or otherwise, of Bank or Trustmark.
12.13 Nonsurvival of Representations and Warranties. All
representations and warranties set forth in Sections 3 and 4 of this Agreement
shall be deemed conditions to the Merger and shall not survive the Merger.
42
43
WITNESS the signatures of the parties as of the date first set forth
above.
(SEAL)
TRUSTMARK CORPORATION
By:
--------------------------------
Xxxxx X. Day, Its Chairman of
the Board and Chief Executive
Officer
(SEAL)
TRUSTMARK NATIONAL BANK
By:
--------------------------------
Xxxxx X. Day, Its Chairman of
the Board and Chief Executive
Officer
PERRY COUNTY BANK
By:
--------------------------------
X. X. Xxxxxx, Xx.
Chairman of the Board
(SEAL)
Board of Directors of Perry County
Bank
------------------------------------
Xxx X. Xxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx, III
------------------------------------
X. X. Xxxxxx, Xx.
------------------------------------
Xxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxx
43
44
EXHIBIT INDEX
Merger Agreement
Exhibit "A" Plan and Agreement of Merger
Exhibit "B" Contracts
Exhibit "C" Pending Litigation - Bank
Exhibit "D" Insurance Policies
Exhibit "E" Regulatory Reports
Exhibit "F" Pending Litigation - Buyers
