STOCK PURCHASE AGREEMENT
Exhibit 10.1
THIS STOCK PURCHASE AGREEMENT (this “Agreement”) is made and entered into by and between White
River Bancshares Company, a corporation organized pursuant to the laws of the State of Arkansas
(“Buyer”); and Home Bancshares, Inc., a corporation organized pursuant to the laws of the State of
Arkansas (“Seller”).
W-I-T-N-E-S-S-E-T-H
For good and valuable consideration, Seller and Buyer agree as follows:
1. Definitions. For all purposes of this Agreement, the following terms shall have
the following meanings:
“Agreement” shall mean this Stock Purchase Agreement.
“Bank” shall mean Signature Bank of Arkansas, a state bank organized pursuant to the laws of
the State of Arkansas.
“Business Day” shall mean any day other than Saturday, Sunday or any other day when the Bank
is not open for business.
“Buyer” shall mean White River Bancshares Company, a corporation organized pursuant to the
laws of the State of Arkansas.
“Closing” shall mean the closing of the transactions contemplated by this Agreement.
“Party” shall mean any one or more of Buyer and Seller.
“Purchase Price” shall mean the amount of Nineteen Million Eight Hundred Sixty-one Thousand
Five Hundred Dollars ($19,861,500.00) which is the product of the number of the Seller Shares
multiplied by One Hundred Fifty Dollars ($150.00) per share.
“Seller” shall mean Home Bancshares, Inc., a corporation organized pursuant to the laws of the
State of Arkansas.
“Seller Shares” shall mean all of the issued and outstanding shares of capital stock of Buyer
held by Seller consisting of One Hundred Thirty-two Thousand Four Hundred Ten (132,410) shares of
common stock represented by certificate numbers CS015, CS432, and CS563.
2. Purchase and Sale of Seller Shares.
2.1. Basic Transaction. Subject to the provisions of this Agreement, Buyer agrees to
purchase from Seller, and Seller agree to sell to Buyer, all of the Seller Shares in exchange for
the Purchase Price.
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2.2. Purchase Price. Buyer agrees to pay the Purchase Price to Seller at the Closing
by delivery of cash in the amount of Nineteen Million Eight Hundred Sixty-one Thousand Five Hundred
Dollars ($19,861,500.00) payable by wire transfer or delivery of other immediately available funds
to an account designated by Seller.
2.3. Closing. The Closing shall take place within five (5) Business Days following
the satisfaction or waiver of all conditions to the obligations of Seller and Buyer to consummate
the transactions contemplated hereby (other than conditions with respect to actions the respective
Parties shall take at the Closing itself) or such other date as Buyer and Seller may mutually
determine but not later than March 1, 2008. At the Closing, (i) Seller shall deliver to Buyer
endorsed certificates, instruments, and other documents necessary to completely and irrevocably
transfer the Seller Shares to Buyer and to irrevocably release and waive any right to acquire
additional shares of stock in Buyer, and (ii) Buyer shall deliver to Seller the Purchase Price.
3. Regulatory Approvals. Seller and Buyer acknowledge that the transactions
contemplated by this Agreement may require the prior approval of the Arkansas State Bank
Department, the Federal Deposit Insurance Corporation, and the Federal Reserve Board. Seller shall
prepare or cause to be prepared all such applications, notices, and other documents as may be
necessary for Seller to receive approval of such transactions by such regulatory authorities, and
Buyer shall prepare or cause to be prepared all such applications, notices, and other documents as
may be necessary for Buyer and Bank to receive approval of such transactions by such regulatory
authorities. In each case, no application, notice, or other document shall be submitted by Seller
or Buyer to any regulatory authority until approved by the other, such approval not to be
unreasonably withheld, delayed, or conditioned.
4. Representations and Warranties Concerning Transaction.
4.1. Seller’s Representations and Warranties. Seller represents and warrants to
Buyer that the statements contained in this Section 4.1 are correct and complete as of the date of
this Agreement and shall be correct and complete as of the Closing Date (as though made then).
(a) Organization. Seller is duly organized, validly existing, and in good standing
under the laws of the State of Arkansas.
(b) Authorization of Transaction. Seller has full power and authority to execute and
deliver this Agreement and to perform its obligations under this Agreement. This Agreement
constitutes the valid and legally binding obligation of Seller, enforceable in accordance with its
provisions. Seller need not give any notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in order to consummate the transactions contemplated by this Agreement, except
as set forth in Section 3.
(c) Non-contravention. Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, shall (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which Seller is subject, (ii) conflict with, result in
a breach of, constitute a default under, result in the acceleration of, create the right to
accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract,
lease, license, instrument, or other arrangement to which Seller is are a party or by which Seller
is bound
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or to which any of its assets are subject, or (iii) result in the imposition or creation
of a mortgage, pledge, encumbrance, charge, security interest, or other lien upon or with respect
to the Seller Shares.
(d) Seller Shares. Seller holds of record and owns beneficially all of the Seller
Shares free and clear of any restrictions on transfer (other than any restrictions common to all
shareholders of Buyer and securities laws), taxes, mortgage, pledge, encumbrance, charge, security
interest, or other liens, options, warrants, purchase rights, contracts, commitments, equities,
claims, and demands. Seller is not a Party to any option, warrant, purchase right, or other
contract or commitment that could require Seller (or any one or more of them) to sell, transfer, or
otherwise dispose of any of the Seller Shares.
4.2. Buyer’s Representations and Warranties. Buyer represents and warrants to Seller
that the statements contained in this Section 4.2 are correct and complete as of the date of this
Agreement and shall be correct and complete as of the Closing Date (as though made then).
(a) Organization. Buyer is duly organized, validly existing, and in good standing
under the laws of the State of Arkansas.
(b) Authorization of Transaction. Buyer has full power and authority to execute and
deliver this Agreement and to perform its obligations under this Agreement. This Agreement
constitutes the valid and legally binding obligation of Buyer, enforceable in accordance with its
provisions. Buyer need not give any notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in order to consummate the
transactions contemplated by this Agreement except as set forth in Section 3.
(c) Non-contravention. Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, shall (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which Buyer is subject or any provision of its
charter, bylaws, or other governing documents or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create the right to accelerate,
terminate, modify, or cancel, or require any notice under,
any agreement, contract, lease, license, instrument, or other arrangement to which Buyer is a Party
or by which Buyer is bound or to which any of its assets are subject.
5. Pre-Closing Covenants. Seller and Buyer agree as follows with respect to the
period between the execution of this Agreement and the Closing:
5.1 General. Each of the Parties shall use its reasonable efforts to take all actions
and to do all things in a timely manner necessary in order to consummate and make effective the
transactions contemplated by this Agreement including satisfaction, but not waiver, of the Closing
conditions set forth in Section 6.
5.2. Press Releases and Public Announcements. No Party shall issue any press release
or make any public announcement relating to the subject matter of this Agreement without the prior
written approval of Buyer and Seller; provided however, that any Party may make any public
disclosure it believes in good faith is required by applicable law and in such
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event, that Party shall give such advance notice of the public disclosure to the other Party so that it may
coordinate its own or a mutual disclosure.
5.3 Notice that Condition Not Met. A Party shall notify the other Party within 2
Business Days after it becomes aware that a condition to its obligation to consummate the
transactions contemplated by this Agreement cannot be met.
6. Conditions to Closing.
6.1. Conditions to Buyer’s Obligation. The obligation of Buyer to consummate the
transactions contemplated by this Agreement in connection with the Closing is subject to
satisfaction of the following conditions:
(a) The representations and warranties of Seller set forth in this Agreement shall be true and
correct in all material respects as of the Closing.
(b) Seller shall have performed and complied with all covenants set forth in this Agreement in
all material respects through the Closing.
(c) All regulatory authorities shall have approved the transactions contemplated by this
Agreement as set forth in Section 3.
(d) No action, suit, or proceeding shall be pending before any court or quasi-judicial or
administrative agency of any federal, state, local, or foreign jurisdiction or before any
arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would: (i)
prevent consummation of any of the transactions contemplated by this Agreement; (ii) cause any of
the transactions contemplated by this Agreement to be rescinded following consummation; (iii)
adversely affect the right of Buyer to own the Seller Shares; or (iv) materially and adversely
affect the right of Buyer to own its assets and to operate its business (and no such injunction,
judgment, order, decree, ruling, or charge shall be in effect).
(e) All actions to be taken by Seller in connection with consummation of the transactions
contemplated hereby and all certificates, instruments, and other documents required to effect the
transactions contemplated hereby shall be reasonably satisfactory in form and substance to Buyer.
(f) Seller shall have delivered all certificates representing the Seller Shares properly
endorsed in blank.
(g) Seller shall have delivered to Buyer a certificate of the secretary of Seller dated as of
the Closing, in form and substance reasonably satisfactory to Buyer, as to the resolutions of the
board of directors of Seller authorizing the execution, delivery, and performance of this Agreement
and the transactions contemplated hereby.
(h) Seller shall have delivered to Buyer the resignation of Xxx X. Xxxxxxxx as a member of the
board of directors of Buyer effective as of the Closing.
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(i) Buyer shall have received subscriptions for the purchase of shares of stock in Buyer
pursuant to a confidential private offering memorandum in an aggregate amount not less than equal
to the Purchase Price.
Buyer may waive any condition specified in this Section 6.1 by executing a document expressly
waiving the condition at or prior to the Closing or by proceeding to consummate the transaction
without the condition being satisfied.
6.2. Conditions to Seller’s Obligation. The obligation of Seller to consummate the
transactions contemplated by this Agreement in connection with the Closing is subject to
satisfaction of the following conditions:
(a) The representations and warranties of Buyer set forth in this Agreement shall be true and
correct in all material respects at and as of the Closing.
(b) Buyer shall have performed and complied with all of its covenants hereunder in all
material respects through the Closing.
(c) All regulatory authorities shall have approved the transactions contemplated by this
Agreement as set forth in Section 3.
(d) No action, suit, or proceeding shall be pending before any court or quasi-judicial or
administrative agency of any federal, state, local, or foreign jurisdiction or before any
arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would: (i)
prevent consummation of any of the transactions contemplated by this Agreement; (ii) cause any of
the transactions contemplated by this Agreement to be rescinded following consummation; (iii)
adversely affect the right of Buyer to own Seller Shares; or (iv) materially and adversely affect
the right of Seller to own its assets and to operate its business (and no such injunction, judgment, order, decree, ruling, or charge shall be
in effect).
(e) All actions to be taken by Buyer in connection with consummation of the transactions
contemplated hereby and all certificates, instruments, and other documents required to effect the
transactions contemplated hereby shall be reasonably satisfactory in form and substance to Seller.
(f) Delivery to Seller of the Purchase Price in the manner required by Section 2.2 hereof.
(g) Buyer shall have delivered to Seller a certificate of the secretary of Buyer dated as of
the Closing, in form and substance reasonably satisfactory to Seller, as to the resolutions of the
board of directors of Buyer authorizing the execution, delivery, and performance of this Agreement
and the transactions contemplated hereby.
Seller may waive any condition specified in this Section 6.2 by executing a document expressly
waiving the condition at or prior to the Closing or by proceeding to consummate the transaction
without the condition being satisfied.
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7. Termination; Remedies.
7.1. Termination. This agreement may be terminated:
(a) On the mutual agreement of Buyer and Seller.
(b) By either Buyer or Seller if the Closing does not occur by March 1, 2008 (or such later
date as Buyer and Seller may mutually agree in writing).
(c) By a Party if that Party’s conditions to the Closing in Section 6 have not been met or
waived or if any of the representations, warranties, covenants or other agreements of the other
Party have been breached in any material respect.
7.2 Remedies on Termination. If this Agreement terminates on account of the breach of
a Party, the non-breaching Party shall have the right to exercise all rights and remedies available
both at law and in equity.
8. Miscellaneous.
8.1. Survival. The representations and warranties contained in this Agreement and
all other terms, covenants and conditions hereof shall merge in the closing documents and shall not
survive the Closing nor, after the Closing, be the basis for any action by any party, except as to
any matter which is based upon willful fraud by a Party in which case the representations,
warranties, terms, covenants and conditions set forth in this Agreement shall expire only upon
expiration of the applicable statute of limitations.
8.2. No Third-Party Beneficiaries. This Agreement shall not confer any rights or
remedies upon any person other than Seller and Buyer and their respective successors and permitted
assigns.
8.3. Succession and Assignment. This Agreement shall be binding upon and inure to
the benefit of Seller and Buyer and their respective successors and permitted assigns. No Party may
assign either this Agreement or any of its rights, interests, or obligations hereunder without the
prior written approval of Buyer and Seller.
8.4. Counterparts. This Agreement may be executed in one or more counterparts each
of which shall be deemed an original but all of which together shall constitute one and the same
instrument.
8.5. Headings. The section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
8.6. Fees of Legal Counsel. If any Party shall employ any attorney to file a lawsuit
to protect its rights hereunder or to enforce any provision hereof, the Party prevailing in any
such lawsuit may recover from the other Party all of its reasonable attorneys’ fees and expenses
incurred in relation thereto.
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8.7. Expenses and Broker’s Fees. Each Party shall pay its own respective attorneys’
fees incurred during the negotiation and closing of the transactions contemplated by this
Agreement. Seller and Buyer have no liability or obligation to pay any fees or commissions to any
broker, finder, or agent with respect to the transactions contemplated by this Agreement.
8.8. Modification. No provision of this Agreement may be modified, amended, or waived
except by written agreement signed by the Party to be bound thereby.
8.9. Notice. All notices, requests, demands, and other communications permitted or
required herein shall be in writing, and either delivered in person; sent by express mail or other
overnight delivery service providing receipt of delivery. All such notices and other
communications, unless otherwise designated in writing, shall be sent to the following persons:
| If to Seller: | Xxx X. Xxxxxxxx Home Bancshares, Inc. 000 Xxxxxxxxx, Xxxxx 000 Xxxxxx, Xxxxxxxx 00000 |
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| with a copy to: | Mitchell, Williams, Xxxxx, Xxxxx & Xxxxxxxx, P.L.L.C. Attn: Xxxx X. Xxxxx 000 Xxxx Xxxxxxx Xxxxxx Xxxxx 0000 Xxxxxx Xxxx, Xxxxxxxx 00000-0000 |
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| If to Buyer: | White River Bancshares Company Attn: Xxxx X. Head 0000 Xxxxx Xxxxxxxxx Xxxx, Xxxxx 00 Xxxxxxxxxxxx, Xxxxxxxx 00000 |
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| with a copy to: | Xxxxx Xxxx LLP Attn: Xxxxxxx X. Xxxxx 000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxxxxxx, Xxxxxxxx 00000 |
8.10. Severability. Each provision of this Agreement is severable from all other
provisions. If any provision is declared invalid or unenforceable, such provision shall be deemed
modified to the extent necessary to render it valid and enforceable. If any court of competent
jurisdiction determines that any such provision is invalid or unenforceable for any reason, all
remaining provisions shall remain in full force and effect.
8.11. Time for Performance. Time is of the essence.
8.12. Waiver. Either Party to this Agreement may, by written notice to the other
Party, extend the time for the performance of any obligation by the other Party; waive any
inaccuracies in this Agreement caused by the other Party; and waive compliance with any of the
covenants of the other Party in this Agreement. No waiver of a breach of any provision of this
Agreement shall operate or be construed as a waiver of any subsequent breach or limit or restrict
any
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right or remedy otherwise available. Any waiver of any provision shall be in writing and
signed by the Party to be bound thereby.
8.13. Rights and Remedies Cumulative. The rights and remedies expressed in this
Agreement are cumulative and not exclusive of any rights and remedies otherwise available.
8.14. Governing Law. This Agreement shall be subject to and governed by the laws of
the State of Arkansas.
8.15. Composition of Agreement. Seller and Buyer represent that they have each read
this Agreement and each has sought and received competent legal counsel prior to its execution.
Seller and Buyer assume joint responsibility for the form and composition of each provision of this
Agreement and each acknowledge that this Agreement shall be interpreted as though they shared
equally in its preparation.
8.16. Conflict in Instruments. To the extent that there is an irreconcilable conflict
between the provisions of this Agreement and any document delivered in connection herewith, the
provisions of this Agreement shall prevail.
8.17. Entire Agreement. This Agreement contains the entire agreement of all Parties
on the subject matter hereof, and no other oral or written agreements shall be binding upon Seller
and Buyer. Seller and Buyer acknowledge that they have neither been influenced to enter into this
Agreement by any Party, nor relied on any representation of any Party except for those
representations set forth in this Agreement. This Agreement supersedes all prior agreements,
contracts, and understandings of any kind on the subject matter hereof, either oral or written.
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement on November 20, 2007.
| BUYER WHITE RIVER BANCSHARES COMPANY |
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| By: | /s/ Xxxx X. Head | |||
| Xxxx X. Head, Chairman and CEO | ||||
| SELLER HOME BANCSHARES, INC. |
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| By: | /s/ Xxx X. Xxxxxxxx | |||
| Xxx X. Xxxxxxxx, President and | ||||
| Chief Operating Officer | ||||
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