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EXHIBIT 2
MERGER AGREEMENT
This Merger Agreement ("Agreement") is executed as of the 2nd day of
October, 1996, 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 First Corinth Corp., a
Mississippi corporation ("Company"), and NATIONAL BANK OF COMMERCE OF CORINTH,
a national banking association ("NBC") (Company and NBC hereinafter sometimes
collectively referred to as "Sellers").
The parties desire to merge the Company with and into Trustmark, with
Trustmark as the surviving corporation, and to merge NBC with Trustmark Bank,
with Trustmark Bank as the surviving corporation.
NOW, THEREFORE, for the considerations and mutual covenants and
conditions contained in this Agreement, Buyers and Sellers do hereby agree as
follows:
1. THE MERGERS.
Pursuant to this Agreement and the Plan and Agreement of
Merger attached as Exhibit "A", Company shall be merged with and into Trustmark
(the "Holding Company Merger"). As a result of the Holding Company Merger, the
112,000 issued and outstanding shares of common stock of the Company, together
with the 800 additional shares described in Section 5.15 of this Agreement,
shall, subject to the adjustments provided for in Sections 10.5 and 10.7 of
this Agreement, be converted into 1,461,273 newly issued shares of the common
stock of Trustmark.
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As a consequence of the Holding Company Merger, all assets of
Company as they exist at the Effective Time of the Holding Company Merger (as
described in Section 10), shall pass to and vest in Trustmark without any
conveyance or other transfer, and Trustmark shall be responsible for all the
liabilities of every kind and description of Company as of the Effective Time
of the Holding Company Merger.
Immediately following the Holding Company Merger, NBC shall be
merged with and into Trustmark Bank under the charter of Trustmark Bank (the
"Bank Merger") (and, together with the Holding Company Merger the "Mergers")
pursuant to the Plan and Agreement of Merger attached as Exhibit "B" hereto. As
a result of the Bank Merger, each of the 110,000 issued and outstanding shares
of the common stock of NBC which are not owned by Company shall, subject to the
adjustments provided for in Sections 10.5 and 10.7 of this Agreement, be
converted into 13.4825 shares of the common stock of Trustmark.
As a consequence of the Bank Merger, all assets of NBC, as
they exist at the Effective Time of the Bank Merger (as described in Section
10), 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 NBC as of the Effective Time of the Bank Merger.
2. CAPITALIZATION OF BUYERS.
The authorized capital stock of Trustmark consists of
100,000,000 shares of common stock, no par value, of which 34,910,683 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.
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3. REPRESENTATIONS AND WARRANTIES OF SELLERS.
Sellers, jointly and severally, make 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, (except that all representations and warranties made as of a
specific date shall be true and correct as of such date).
3.1 Organization. Company 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 now being conducted and to own and lease its
properties. The business activities of the Company do not require it to be
qualified to do business in any other state.
NBC is a national banking association, duly
organized, validly existing and in good standing under the laws of the United
States and has all requisite corporate power and authority 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 Boards of Directors of Company and NBC. Upon approval by the
shareholders of Company and NBC and upon obtaining the approval of all
governmental and regulatory agencies or authorities whose approval is required
(and such approvals are no longer subject to judicial or administrative review,
and all waiting periods required by law have expired):
(a) This Agreement will be a valid and binding
obligation of Sellers, enforceable in accordance with its terms, and
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(b) Consummation of the transactions contemplated
by this Agreement will not: (1) result in a breach of or default under any
material agreement to which either of the Sellers is a party, (2) 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 (3) conflict with, or result
in the breach of, the charter or bylaws of Company or NBC.
3.3 Capitalization. The authorized capital stock of
Company consists of 200,000 shares of common stock, $5.00 par value, of which
112,000 shares are issued and outstanding.
The authorized capital stock of NBC consists of
110,000 shares of common stock, $5.00 par value, of which 110,000 shares are
issued and outstanding, 108,375 shares of which are owned by Company and 1,625
shares of which are owned in the aggregate by four shareholders.
Each share of Company and NBC stock outstanding as of
the date hereof is duly authorized, validly issued, fully paid and
nonassessable and free of preemptive rights. Except for Company's grant to the
President of NBC of the option to purchase 800 shares of the capital stock of
Company, neither Company nor NBC has 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 equity securities
into securities of a different kind or class. Except for Company's promissory
note in the approximate principal balance of $750,000 issued to First Tennessee
Bank National Association (the "Holding Company Debt"), neither Company nor NBC
has any other debt securities outstanding.
3.4 Financial Statements. Sellers have delivered to
Buyers the audited financial statements of Company and its consolidated
subsidiary for the years ended December 31, 1993,
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December 31, 1994 and December 31, 1995. As promptly as the same are
available, Sellers shall deliver to Buyers copies of all quarterly and annual
financial statements of Company and the quarterly call reports of NBC filed
subsequent to the date hereof and prior to the Closing Date. 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
conditions of Company and NBC, as the case may be, as of the dates thereof and
have been or will be prepared in conformity with generally accepted accounting
principles, consistently applied, for the periods involved. The call reports
delivered pursuant to this Section 3.4 do and will fairly, as of the date
thereof, present the financial information required to be shown therein. The
$692,000 reserve for loan losses reflected in the audited financial statements
for the period ending December 31, 1995 adequately provides for the anticipated
loan losses of NBC as of such date.
3.5 Absence of Undisclosed Liabilities. Neither
Company nor NBC has any known liabilities 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 ending December 31, 1995, or otherwise disclosed in this Agreement
or the documents, statements, lists, and exhibits referred to herein and
delivered pursuant to and prior to completion of the due diligence examination
set forth in Section 5.9 which could have a material adverse effect on the
financial condition, properties or prospects of Company and NBC, taken as a
whole.
3.6 Compliance with Laws. Neither Company nor NBC has,
in its best judgment, any uncorrected deficiencies noted in any examination
report by federal or state regulatory authorities or is
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in violation of any material federal, state or local law, rule, ordinance or
regulation.
3.7 Assets Employed. All of Company and NBC'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 used or employed in the business and operations of
Company and NBC as currently conducted. Company and NBC have good marketable
title to all of their significant tangible assets free of significant liens,
encumbrances and claims, except as required by law for the deposit of public
funds and to secure repurchase agreements. Leases covering material tangible
assets in which Company or NBC have a leasehold interest only are valid and
enforceable in accordance with their terms and the Mergers will not result in a
default thereunder.
3.8 Contracts and Commitments. As of the date of this
Agreement, Sellers have supplied Buyers with copies of all contracts, leases,
licenses and all pension or profit sharing agreements ("Plans") and other
agreements to which Company or NBC is a party or is bound, such agreements
being listed in Exhibit "C" hereto. There have been no material breaches or
defaults under any of the provisions of any such contracts, leases, licenses or
Plans that have not been cured, waived or released. 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) that is
required to be reported to the Pension Benefit Guaranty Corporation 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.
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3.9 Litigation. Except as set forth in Exhibit D-1
("Pending Litigation"), neither Company or NBC, nor to the knowledge of the
Company or NBC any of their respective 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 the Company or NBC therefor in
which in the case of either clause (i) or (ii) above an unfavorable decision,
ruling or finding could have a material adverse effect on the financial
condition or operations of Company and NBC taken as a whole or on the
consummation of the transactions contemplated by this Agreement.
3.10 Brokers, Finders or Advisers. Neither Company nor
NBC has employed or incurred any liability to any broker, finder or adviser in
connection with the transactions contemplated by this Agreement.
3.11 Taxes. Company and NBC have filed all 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
their liabilities for taxes have not been fully discharged, adequate reserves
have been established in the financial statements therefor in accordance with
generally accepted accounting principles. The federal income tax returns of
Company and NBC have been audited by the Internal Revenue Service through the
year ending December 31, 1994. Neither Company nor NBC 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 assessment or proposed assessment of any
tax.
3.12 Insurance. True and correct copies of all insurance
policies presently in force covering Company, NBC and their officers,
directors, employees and properties have been
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provided to Buyers, such policies being described in Exhibit "E" hereto.
3.13 Subsidiaries. NBC is a subsidiary of Company.
Company owns 108,375 shares or 98.52% of the outstanding capital stock of NBC.
Four shareholders own 1,625 shares or 1.48% in the aggregate of the outstanding
capital stock of NBC. Company and NBC have no other subsidiaries.
3.14 Other Regulatory Filings. Sellers have delivered to
Buyers true and correct copies of all reports filed by Company or NBC with the
Board of Governors of the Federal Reserve System, the Comptroller of the
Currency and all other state and federal financial regulatory agencies since
January 1, 1993, such reports being described in Exhibit "F" hereto. Each of
such reports is true and correct in all material respects.
3.15 Full Disclosure. To the best of Sellers knowledge,
this Agreement and all information provided to Buyers in writing pursuant to
this Agreement do not contain any untrue statements of material fact and
Sellers have not omitted to disclose to Buyer any material fact known to
Sellers concerning the financial condition, properties or prospects of Company
or NBC.
3.16 Disclosure Documents. With respect to information
supplied or to be supplied by Sellers for inclusion in the proxy statement
relating to the meeting of Company's stockholders for the approval of the
Mergers (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 Mergers (the "Registration
Statement"), (i) the Proxy Statement, at the time of the mailing thereof to
stockholders of Company and at the time of the meeting of Company's
stockholders will not contain any untrue
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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.
4. REPRESENTATIONS AND WARRANTIES OF BUYERS.
In order to induce Sellers to enter into this Agreement and to
consummate the transactions contemplated herein, Buyers jointly and severally,
make the following representations and warranties to Sellers, each of which is
being relied on by Sellers, 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, (except that all
representations and warranties made as of a specific date shall be true and
correct as of such 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 the Holding Company Merger
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
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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 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: (1) conflict with, or result in the breach of, the charter or
bylaws of any of the Buyers, (2) result in a breach of or default under any
agreement which any of the Buyers is presently a party, or (3) conflict with or
result in a violation or breach of any law, rule or regulation, or any writ,
injunction or decree of any court or governmental agency.
4.3 Capitalization. The capitalization of Buyers is as
set out in Section 2 hereof. Each share of Trustmark and Trustmark Bank stock
outstanding as of the date hereof is duly authorized, validly issued, fully
paid and nonassessable and free of preemptive rights. Neither Trustmark nor
Trustmark Bank
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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. Sellers and Buyers understand and agree that Trustmark Bank intends to
authorize and issue additional shares of its common stock to Trustmark as a
result of the transactions contemplated by this Agreement, and Trustmark may
issue additional shares of its common stock or other securities at any time for
the purpose of making acquisitions or for other business purposes of Trustmark.
4.4 Financial Statements. Buyers have delivered to
Sellers the audited financial statements of Trustmark and its consolidated
subsidiaries for the years ended December 31, 1993, December 31, 1994 and
December 31, 1995, and the unaudited financial statements for the quarter ended
June 30, 1996. As promptly as same are available, Buyers shall deliver to
Sellers a copy of any subsequent quarterly and annual financial statements of
Trustmark and consolidated subsidiaries issued, and quarterly call reports of
Trustmark Bank filed with the appropriate bank regulatory agencies, together
with any reports filed with the Securities and Exchange Commission. 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 condition of Trustmark and consolidated subsidiaries and have
been or will be prepared in conformity with generally accepted accounting
principles, consistently applied, for the periods involved. The call
reports delivered pursuant to this Section 4.4 are and will be complete and
correct in all material respects and fairly present or will present the
financial information required to be shown therein.
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4.5 Absence of Undisclosed Liabilities. Neither
Trustmark nor Trustmark Bank has any 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
unaudited financial statements for the period ending June 30, 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 thereof 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, marketable title to all of their significant tangible
assets free of all significant liens, encumbrances and claims, except as
required by law for deposit of public funds. Leases covering material tangible
assets in which Trustmark or Trustmark Bank have a leasehold interest only are
valid and enforceable in accordance with their terms and the Mergers will not
result in a default thereunder.
4.7 Taxes. The amounts provided for taxes on the
audited financial statements for the period ending December 31, 1995, 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 Bank for the period ending on the date of such
financial statements and for all prior periods. Trustmark and Trustmark Bank
have filed
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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
statement 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.
4.9 Full Disclosure. To the best of Buyers' knowledge,
this Agreement, including all information provided to Sellers pursuant to this
Agreement, does not contain any untrue statement of material fact and Buyers
have not omitted to disclose to Sellers any material fact concerning the
financial condition, properties or prospects of Trustmark or Trustmark Bank.
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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) the filing of Articles of Merger in accordance with
Mississippi Law;
(b) compliance with the applicable requirements, if any,
of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended;
(c) compliance with the applicable requirements of the
Securities Exchange Act of 1934 ("Exchange Act") and the rules and regulations
promulgated thereunder;
(d) compliance with the applicable requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations promulgated thereunder;
(e) compliance with applicable foreign or state
securities or "blue sky" laws;
(f) compliance with the applicable requirements of the
Bank Holding Company Act of 1956 and the National Bank Act, both as amended;
and
(g) 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.
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4.12 Litigation. Except as disclosed in the reports
referred to in Section 4.8 or as set forth in Exhibit D-2, 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 Company's stockholders for the approval of the
Holding Company 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 Mergers (the
"Registration Statement"), (i) the Proxy Statement, at the time of the mailing
thereof to stockholders of Company and NBC and at the time of the meeting of
Company and NBC's stockholders to be held in connection with the Mergers, 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
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the Securities Act and Exchange Act, respectively, and the rules and
regulations thereunder.
4.14 Absence of Certain Changes. Since December 31,
1995, 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;
(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.
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5. SPECIAL AGREEMENTS.
5.1 Dividends. Notwithstanding any provision of this
Agreement to the contrary, provided NBC's net income for 1996 is not less than
$2,300,000, Company is permitted to declare and pay to its shareholders an
annual cash dividend in an amount not to exceed Nine Dollars ($9.00) per share.
In the event NBC does not earn $2,300,000 in net income, there shall be a pro
rata reduction in the Nine Dollar ($9.00) dividend in an amount equal to One
Dollar ($1.00) for every One Hundred Ten Thousand Dollar ($110,000) shortfall
below $2,300,000. For purposes of this Section 5.1, the term "net income"
shall have the meaning associated with it in the Uniform Bank Performance
Report, Section RI. NBC shall be permitted to declare and pay to its
shareholders an annual cash dividend in an amount sufficient to (A) enable
Company to pay (i) its shareholders the cash dividend described in this Section
5.1, and (ii) the Holding Company Debt, plus accrued interest, pursuant to
Section 5.16 and (B) to pay the shareholders of NBC, other than Company,
subject to the same adjustment if NBC does not earn $2,300,000 in net income, a
pro rata dividend sufficient to fund the Company dividend, extinguish the
Holding Company Debt and extinguish any holding company operating expenses,
which dividend shall not exceed $16.29 per share. If the Closing does not
occur prior to March 1, 1997, the shareholders of Company and NBC shall,
subject to Section 10.3, be entitled to receive quarterly dividends from
Trustmark equal to the amount of the dividends such shareholder would have
received if the Closing had occurred prior to March 1, 1997. No other
dividends shall be paid by Company or NBC.
5.2 Employment. Trustmark Bank shall continue the
employment of the employees of NBC for a minimum of one (1) year after the
Closing Date. However, as employees of Trustmark Bank, such persons are
subject to salary review, reassignment and
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termination in the same manner as other employees of Trustmark Bank.
5.3 Confidentiality. Buyers and Sellers 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 Sellers agree to return all materials
concerning the other to the party from which obtained. Such party will return
to the other party all confidential materials, including any copies made by
such party without retaining any copies thereof and shall further destroy any
hand notes such party or any of its agents may have prepared and shall use such
confidential information solely for consideration of this transaction and for
no other purpose. 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 Payment of Expenses. Except as provided in Section
5.9, each party shall bear its own expenses incurred in connection with the
negotiation and consummation of the transactions contemplated by this
Agreement.
5.5 Covenant Not to Compete. The Directors of Company
and NBC each agree that for the period from the date hereof until one year
after the Closing Date, they 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 (as successor to NBC) within Xxxxxx County, Mississippi. The Directors of
Company and NBC further agree not to initiate any action to induce any
employee of Trustmark Bank (as successor to NBC) to leave Trustmark Bank's
employment or directly or indirectly assist
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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.
5.6 Employee Benefit Plans. Following the Closing Date,
the employees of NBC will be entitled to the same employee benefits as are
presently being provided to employees of Trustmark Bank. At Buyer's option,
Company's existing 401-K 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, transfer the employee portion of
Company's existing plan to Buyer's existing retirement plan and the employer
portion of Company's existing plan to a separate newly created retirement plan
maintained by Buyer. All employees of Company and NBC will receive credit for
years of service at Company and NBC for purposes of participation in Buyer's
retirement plan.
5.7 Recommendation of Directors; Voting of Shares. The
Board of Directors of Company hereby agrees to recommend that the shareholders
of Company approve the Holding Company Merger, provided, nothing herein shall
require the Board of Directors of Company to take any action which, in the
legal opinion of Xxxxxxx, Xxxxxx & Xxxxxxx, P.A., would constitute a breach of
any fiduciary duties that are owed to the shareholders of Company under
applicable law.. Each of the Directors of the Company agree to vote his
Company shares in favor of the Holding Company 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 Mergers, provided that no party
hereto shall be prohibited from making any press release or other public
statement which its legal counsel deems necessary.
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5.9 Due Diligence. Buyers shall promptly conduct their
due diligence examination of the books, records, assets, and liabilities of
Sellers, which shall be completed no later than thirty (30) days after the date
hereof. If such inquiry or examination should reveal any previously unknown
financial information which Buyers, in their sole discretion, deem to be
adverse, then Buyers may promptly notify Sellers of such finding and may
exercise their right of termination set forth in Section 11(d) of this
Agreement.
5.10 Credit Extensions. Sellers agree to notify and
consult with Buyers before making, advancing, extending or renewing any loans
or credits above $350,000 before the Closing Date.
5.11 Indemnification. Buyers agree to indemnify, defend
and hold harmless Sellers for all losses, costs, claims, damages and expenses,
including, but not limited to, attorney's fees, arising out of any claim or
cause of action asserted by a minority shareholder of NBC in connection with
the Bank Merger.
5.12 Board of Directors. Following the consummation of the
Holding Company Merger, the existing Board of Directors of NBC who so desire
shall become advisory directors to the Corinth community bank office of
Trustmark Bank and shall be entitled to the comparable benefits as are
presently being provided to the other advisory directors of Trustmark Bank's
community banks offices. Messrs. X. X. Xxxxxx and X. X. Xxxxxxx shall be
permitted to remain as advisory directors to the Corinth community bank office
of Trustmark Bank for two years following the consummation of the Mergers.
Following the consummation of the Holding Company Merger, one representative
from the Board of NBC shall be appointed to serve as an Advisory Director of
Trustmark and will be entitled to the same benefits as are presently being
provided to the other Advisory Directors of Trustmark.
21
5.13 Officer Incentive Plans. Sellers shall be authorized
to continue NBC's existing officer incentive plan for the 1996 calendar year;
provided, however, the payment of benefits pursuant to the officer incentive
plan shall not exceed $200,000.
5.14 Management Fees. Sellers shall be authorized to pay
the regular management fee for 1996 in the amount of $5,000 to Mr. B. Xxxxx
Xxxxx, III. On the Closing Date, Sellers shall be permitted to pay a management
fee in the amount of $10,000 each to Messrs. Xxxx X. Xxxxx and B. Xxxxx Xxxxx,
III.
5.15 Stock Options. On or before December 31, 1996, the
President of NBC shall be authorized to exercise and purchase, and the Company
shall be authorized to issue, 200 shares of the Company's outstanding common
stock that are currently subject to that certain Non-Qualified Stock Option
Agreement dated the 21st day of March 1995, by and between Company and Hull
Davis, a copy of which has been provided to Buyers. On the Closing Date, the
President of NBC shall be authorized to exercise and purchase, and the Company
shall be authorized to issue, the remaining 600 shares of the Company's
outstanding common stock that will be subject to such agreement.
5.16 Holding Company Debt. On or before the Closing Date,
Sellers shall pay and discharge the Holding Company Debt in full, together with
all accrued interest thereon.
5.17 Bank Merger Vote. Company agrees to vote all of the
shares of NBC owned by it in favor of the Bank Merger at the NBC special
shareholders meeting called to consider and vote upon the Bank Merger, provided
nothing herein shall require the Board of Directors of Company to take any
action which, in the legal opinion of Xxxxxxx, Xxxxxx & Xxxxxxx, P.A., would
constitute a breach of any fiduciary duties that are owed to the shareholders
of NBC under applicable law.
22
6. COVENANTS OF SELLERS PENDING CLOSING.
6.1 Shareholder's Meeting. As promptly as practical
after the effective date of the Registration Statement for the Trustmark shares
to be issued in connection with the Mergers, the Company and NBC shall cause to
be convened a special meeting of their shareholders for the purpose of
considering and voting on the Mergers. Such meetings shall be properly called
and held in accordance with applicable law and the articles of incorporation
and bylaws of the Company and NBC.
6.2 Documents of Title. Sellers agree to allow Buyers to
examine all documents relating to any real or personal property owned by
Sellers.
6.3 Access to Properties and Records. Sellers will
provide Buyers and their authorized representatives full access during normal
business hours and under reasonable circumstances to any and all of their
premises, properties, contracts, commitments, books, records and other
information and will cause their officers to furnish any and all financial,
technical and operating data and other information pertaining to their
businesses 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, Sellers and their 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 Sellers 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 Sellers, or either of them, or the acquisition
of a majority of the outstanding shares of Company's or NBC's common stock or a
majority
23
of the assets of Sellers, or either of them, other than the transactions
contemplated by this Agreement.
6.5 Other Affirmative Covenants. Sellers covenant with
Buyers that at all times prior to the Closing Date, Sellers will and will cause
NBC and Company to:
(a) Operate their businesses in substantially the
manner in which such businesses are now being operated and use their best
efforts to maintain the goodwill of the depositors, customers and suppliers of
Company and NBC;
(b) Use their best efforts to retain the
services of the officers and employees of Company and NBC; provided, however,
that Sellers shall have the right to terminate the employment of any officer or
employee of either of them in accordance with established procedures;
(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) Notify Buyers of any unusual or material
problems or developments with respect to the business of Company or NBC; and
(g) Use their best efforts to bring about the
transactions contemplated by this Agreement.
24
6.6 Negative Covenants of Sellers. From the date hereof
until the Closing Date, without the prior written consent of Trustmark, neither
Company nor NBC will:
(a) Incur any material obligation except 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 for
officers and employees that will be conducted in January of 1997 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 incorporation; or
(d) Sell, transfer or convey any of its
investment securities;
(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) Declare or pay any dividend or make any other
distribution with respect to its stock, except as otherwise permitted by
Section 5.1;
(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
25
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;
(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 except as otherwise permitted by Section 5.15;
(l) Fail to comply with any representation,
warranty or covenant contained herein;
(m) Make, advance, extend or renew any loan or
credit above $500,000; or
(n) Enter into any agreement to do any of the
foregoing matters.
7. COVENANTS OF BUYERS PENDING CLOSING.
7.1 Corporate Action. As promptly as practical after the
execution of this Agreement, Buyers shall cause the Holding Company Merger and
the Bank Merger to be approved by the directors of Trustmark and the directors
and shareholder of Trustmark Bank.
7.2 Other Affirmative Covenants. Buyers covenant with
Sellers that at all times prior to the Closing Date, Buyers will and will cause
Trustmark and Trustmark Bank to:
(a) Operate their businesses in substantially the
manner in which such businesses are now being operated and use their best
efforts to maintain the goodwill of the depositors, customers and suppliers of
Trustmark and Trustmark Bank;
(b) Use their best efforts to retain the
services of the officers and employees of Trustmark and 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;
26
(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 best efforts to bring about the
transactions contemplated by this Agreement; and
(g) Notify Sellers of any unusual or material
problems or developments with respect to the business of either Trustmark or
Trustmark Bank.
8. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE.
Buyers obligations to consummate the transactions contemplated
by this Agreement 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
Sellers shall be true and correct on the Closing Date in all material respects.
8.2 Governmental Authority Approval. The consummation of
the Holding Company Merger and 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
27
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 Holding Company Merger and
the Bank Merger shall have been authorized by the Boards of Directors and
shareholders of Company and NBC, respectively, in accordance with the
provisions of applicable law and the articles and bylaws of Company and NBC,
and Sellers shall have furnished Buyers with certified copies of resolutions
duly adopted by the Boards of Directors and shareholders, respectively, of
Company and NBC approving this Agreement and authorizing the Holding Company
Merger and the Bank Merger.
8.4 Compliance with Undertakings. Each of the acts,
covenants, agreements and undertakings of Sellers 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 Company or NBC since the completion of due diligence under Section
5.9, other than as a result of the transactions contemplated hereby.
8.6 Pooling of Interests. Buyers shall have received the
written opinion of Xxxxxx Xxxxxxxx, LLP to the effect that the transactions
contemplated by this Agreement qualify for pooling-of-interests accounting
treatment in accordance with Accounting Principles Board Opinion No. 16 and the
accounting staff of the SEC shall not have asserted or threatened to assert a
determination to the contrary.
8.7 Federal Income Taxation. Buyers shall be satisfied
that the Mergers will qualify as tax-free reorganizations pursuant to Section
368 of the Code.
28
8.8 Opinion of Counsel. Sellers shall cause to be
delivered to Buyers the legal opinion of Xxxxxxx Xxxxxx & Xxxxxxx, P.A. to the
effect that:
(a) NBC is duly organized, validly existing and
in good standing as a national banking association under the laws of the United
States. The 110,000 issued and outstanding shares of its common stock are
duly authorized, validly issued, fully paid and nonassessable. Such stock
represents all of the issued and outstanding securities of NBC.
(b) Company is a duly organized, validly existing
corporation in good standing under the laws of the State of Mississippi. The
112,000 issued and outstanding shares of Company's common stock, together with
the additional 800 shares described in Section 5.16 of this Agreement, are duly
authorized, validly issued, fully paid and nonassessable. Such stock represents
all of the issued and outstanding equity securities of Company.
(c) This Agreement is valid, binding and
enforceable against Sellers 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 Holding Company Merger and the Bank
Merger have been duly authorized by all requisite corporate and shareholder
action of Company and NBC.
(e) To the best of such counsel's knowledge,
following diligent inquiry, but without independent verification of facts
presented or represented by NBC and/or Company to such counsel and with the
ability to rely upon certificates of officers and other legal opinions, Sellers
have not made any material misrepresentation, breached any material warranty or
breached any material covenant or condition in this Agreement or in any
document, statement, list or schedule referred to herein.
29
8.9 Special Financial Covenants. On the Closing Date,
the reserve for loan losses then maintained by NBC shall adequately provide for
the anticipated loan losses of NBC as of such date in accordance with accepted
audit, bank examination and bank regulatory standards. Further, the tangible
assets of Company, excluding NBC, 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 Chief Executive Officer of Company and NBC shall execute and
deliver a closing certificate to the effect that all representations and
warranties by or concerning Company and NBC are true and correct in all
material respects as of the Closing Date and that all other conditions
precedent to Buyers' obligation to Close have been performed and complied with
in all material respects.
30
9. CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE.
Sellers obligations to consummate the transactions
contemplated by this Agreement are subject to each of the following conditions
precedent, any of which may be waived by Sellers 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,
subject to Section 4.3 hereof, nothing in this Agreement shall prohibit or
impair the ability of Trustmark and Trustmark Bank to make further acquisitions
using cash or through the issuance of additional securities or to issue
additional securities for other business purposes.
9.2 Governmental Authority Approval. The consummation
of the Holding Company Merger and 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.
9.3 Corporate Approval. The Holding Company Merger and
the Bank Merger shall have been authorized by the Board of Directors of
Trustmark and the Board of Directors and shareholder of Trustmark Bank in
accordance with the provisions of applicable law and the charters and bylaws of
Trustmark and Trustmark Bank.
9.4 Federal Income Taxation. Sellers shall have
received a favorable revenue ruling or otherwise be satisfied that the Holding
Company Merger will qualify as a tax-free reorganization pursuant to section
368 of the Code.
9.5 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
31
to the terms hereof shall have been duly performed and caused to be complied
with in all material respects.
9.6 No Material Adverse Change. There shall have been no
material adverse change in the condition, financial or otherwise, of Trustmark
or Trustmark Bank since December 31, 1995, other than as a result of the
transactions contemplated hereby.
9.7 Opinion of Counsel. Buyers shall cause to be
delivered to Sellers the legal 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.
(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 the Holding
Company Merger, 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 Holding Company Merger and the Bank
Merger have been duly authorized by all requisite corporate and shareholder
action of Trustmark and Trustmark Bank.
(e) To the best of such counsel's 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, Buyers have not made any material
misrepresentation, materially breached any
32
warranty or materially breached any covenant or condition in this Agreement or
in any document, statement, list or schedule referred to herein.
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 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
Sellers' 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, Company shall merge with and into Trustmark pursuant
to the Plan and Agreement of Merger attached as Exhibit "A", NBC will
consolidate with and into Trustmark Bank pursuant to the Plan and Agreement of
Merger attached as Exhibit "B". The Holding Company Merger will be effective
(the "Effective Time of the Holding Company Merger") upon the filing of
articles of merger with the Secretary of State of the State of Mississippi.
The Bank Merger will be effective (the "Effective Time of the Bank Merger") at
the time established by the United States Comptroller of the Currency.
At the Effective Time of the Mergers, the separate corporate
existence of Company and NBC, respectively, shall cease. Trustmark shall be
the surviving corporation of the Holding Company Merger and Trustmark Bank
shall be the surviving association of the Bank Merger.
Closing will take place at the main office of NBC 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
33
Articles 8 and 9 hereof shall be delivered and the appropriate officers of
Company, NBC, 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 Holding Company Merger and
the Bank Merger.
10.1 Conversion of Shares. As of the Effective Time of
the Holding Company Merger, by virtue of the merger and without any further
action on the part of the holders of any Company shares, each share of Company
common stock issued and outstanding immediately prior to the Effective Time of
the Holding Company Merger (other than such shares as to which dissenter's
rights of appraisal have been perfected and not withdrawn) shall, subject to
Sections 10.5 and 10.7, be converted into 12.9545 Trustmark shares.
As of the Effective Time of the Bank Merger, by
virtue of the merger and without any further action on the part of the holders
of the NBC shares, each share of NBC common stock issued and outstanding
immediately prior to the Effective Time of the Bank Merger which are not owned
by Company shall, subject to Sections 10.5 and 10.7, be converted into 13.4825
shares of common stock of Trustmark.
As soon as practical after the Effective Time of the
Holding Company Merger, notice will be given to all shareholders of Company and
NBC as of the Effective Date of the Mergers, of the procedure for surrendering
and exchanging their share certificates representing Company and NBC common
shares for share certificates representing Trustmark shares. The notice will
include instructions with respect to the surrender of certificates representing
the Company and NBC common shares and the distribution of Trustmark shares in
exchange therefor and a letter of transmittal for use in surrendering Company
and NBC common share certificates.
34
10.2 Lost or Destroyed Certificates. Any person whose
certificates representing Company or NBC common shares shall have been lost or
destroyed may nevertheless obtain the Trustmark shares to which such Company
and NBC common shareholder is entitled as a result of the Mergers, provided
such Company and NBC common shareholder provides Trustmark with a 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 certificates being thereafter presented to
Trustmark for exchange.
10.3 Rights Prior to Exchange. Until a former Company and
NBC common shareholder has surrendered the certificates representing his
Company or NBC common shares or provided indemnity as permitted in Section
10.2, such former Company or NBC common shareholder shall not be entitled to
receive cash or certificates representing the Trustmark shares to which such
shareholder is entitled by virtue of the Mergers and no dividend or other
distribution with respect of Trustmark shares will be paid to such persons;
provided, however, that when such certificates shall have been surrendered or
indemnity provided, there shall be paid to such persons, without interest, all
dividends and other distributions payable in respect of a record date after the
Effective Time of the Mergers on the Trustmark shares for which such Company or
NBC common shares shall have been exchanged.
10.4 Fractional Shares. No fractional Trustmark shares
will be issued upon the surrender for exchange of certificates representing
Company and NBC common shares. In lieu of any such fractional share, each
holder of Company common shares who would otherwise be entitled to a fractional
share of Trustmark common stock will be paid in cash upon surrender of all the
stock certificates representing Company common shares held by such holder
35
in the amount equal to the product of such fraction multiplied by $22.00.
10.5 Adjustment of Merger Consideration. If, between the
date of this Agreement and the Effective Time of the Mergers, Trustmark's
shares shall be changed into a different number of shares or shares of a
different class by reason of any reclassification, recapitalization, split up
or stock dividend with a record date within said period, the number of
Trustmark shares to be issued and delivered upon the Mergers as provided in
this Agreement will be appropriately and proportionately adjusted so that the
number of such shares that will be issued and delivered upon the Mergers will
equal the number of Trustmark shares that holders of Company and NBC common
shares would have received had the record date of such reclassification,
recapitalization, split up or stock dividend been immediately following the
Effective Time of the Mergers.
10.6 Further Assurance. If, at any time after the
Effective Times of the Mergers, Trustmark or Trustmark Bank shall consider or
be advised that any deeds, bills of sale, assignments, assurances or any other
actions or things that are necessary or desirable to vest, perfect or confirm,
of record or otherwise, in the surviving corporation its right, title or
interest in, to or under any of the rights, properties or assets of Company or
NBC acquired or to be acquired as a result of the Holding Company Merger or the
Bank Merger or to otherwise carry out this Agreement, the officers and
directors of Trustmark and Trustmark Bank shall, and will be authorized to,
execute and deliver, in the name and on behalf of Company and NBC all such
deeds, bills of sale, assignments and assurances and take and do, in the name
of and on behalf of Company and NBC, 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
36
or assets in Trustmark and Trustmark Bank or to otherwise carry out this
Agreement.
10.7 Market Price Fluctuations.
(a) Holding Company Merger. The exchange ratio will be
adjusted if the 2-week average of the bid/asked prices of Trustmark shares is
greater than $25.00 or less than $22.00 on the Adjustment Date. For purposes
of this Agreement, the Adjustment Date shall be the fifteenth day prior to the
Closing Date. The 2-week average of the bid/asked prices of the Trustmark
shares shall be the average of the closing bid/asked prices of Trustmark shares
as reported in the National Association of Securities Dealers Automated System
for National Market Issues for the 10 business days preceding the Adjustment
Date (the "Average Trustmark Price"). If, on the Adjustment Date, the Average
Trustmark Price is more than $25.00, the adjustment will decrease the number of
Trustmark shares in to which each Holding Company common share will be
converted so that the exchange ratio of the Trustmark shares in to which each
Company common share shall be converted will be equal to the quotient of (i)
the amount of the increase in the Average Trustmark Price that is greater than
$25.00 plus $22.00 (ii) divided into $32,148,000. If, on the Adjustment Date,
the Average Trustmark Price is less than $22.00, the adjustment will increase
the number of Trustmark shares in to which each Company common share will be
converted so that the value of the Trustmark shares in to which each Company
common share shall be converted will not be less than $285.00. Notwithstanding
the foregoing sentence, if, on the Adjustment Date, the Average Trustmark Price
is less than $19.00, Trustmark shall have the option to (i) adjust the exchange
ratio so that the value of the Trustmark shares in to which each Company common
share shall be converted will not be less than $285.00, (ii) to renegotiate the
exchange ratio, or (iii) to terminate this Agreement upon written notice to the
Company. In the event Buyers exercise their right of
37
termination under and in accordance with this Section 10.7, Buyers shall
reimburse and pay to Sellers all of Seller's reasonable expenses, including but
not limited to, attorneys fees which Sellers shall have incurred under this
Agreement and in pursuance of the transactions covered by this Agreement.
(b) Bank Merger. If the exchange ratio is adjusted for the
Holding Company Merger pursuant to Section 10.7(a), then the exchange ratio for
the Bank Merger shall be adjusted to equal the product of the exchange ratio
for the Holding Company Merger multiplied by 1.0408.
11. TERMINATION.
This Agreement may be terminated and the Mergers may be
abandoned without liability on the part of Sellers or Buyers, as follows:
(a) By the mutual consents of the boards of
directors of Company and Trustmark;
(b) By Trustmark 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 Company or NBC; or
(e) By Buyers, if at the time of such termination
there shall be a material adverse change in the financial condition
38
or tangible properties of Sellers arising subsequent to the completion of due
diligence as referred to in Section 5.9 hereof.
(f) By Sellers, 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,
1995.
(g) By Buyers in accordance with and subject to
the provisions of Section 10.7 hereof.
(h) By either Buyers or Sellers, if the
stockholders of the Company or NBC fail to approve the Holding Company Merger
or Bank Merger at the meeting of stockholders called for such purposes
(including any adjournment or postponement thereof);
(i) By Buyers if there has been a material breach
by either of the Sellers (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 Sellers 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 Sellers.
12. MISCELLANEOUS.
12.1 Applicable Law. This Agreement shall be construed in
accordance with the laws of the State of Mississippi, except to the extent that
federal law is applicable.
12.2 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 upon receipt when
delivered by an overnight courier
39
delivery service that maintains proof of delivery or three days after being
mailed by United States Certified or Registered Mail, Return Receipt Requested,
postage prepaid and addressed:
TO COMPANY: Xx. Xxxx X. Xxxxx
First Corinth Corp.
Xxxx Xxxxxx XXX 000
Xxxxxxxxx, XX 00000-0000
WITH A COPY TO: Xx. Xxxxx X. Xxxxxxx
Xxxxxxx Xxxxxx & Xxxxxxx, P.A.
Post Xxxxxx Xxx 000
Xxxxxxx, XX 00000-0000
TO TRUSTMARK: Xx. Xxxxx X. Day
Trustmark Corporation
Post Xxxxxx Xxx 000
Xxxxxxx, XX 00000
WITH A COPY TO: Xx. Xxxxxxxxx Xxxx, Xx.
Brunini, Grantham, Grower & Xxxxx, PLLC
Post Xxxxxx Xxxxxx 000
Xxxxxxx, XX 00000
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.
12.3 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 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.
12.4 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.
12.5 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 provisions were omitted.
40
12.6 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.
12.7 Counterparts. This Agreement may be executed
simultaneously in two or more counterparts each of which shall be deemed an
original and all of which together shall constitute but one and the same
instrument.
12.8 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.
12.9 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 and therein. 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 Company or NBC, on the other.
12.10 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.
12.11 Definition of Material. With reference to the
representations, warranties and covenants of Sellers contained in this
Agreement, such representations, warranties and covenants shall be strictly
satisfied and complied with. Accordingly, when used with reference to Sellers
"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
41
aggregate with any other such breach, does or could result in a cost, loss,
detriment or obligation in excess of $325,000. 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 reduction in the book value of Company 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 Company or
Trustmark.
12.12 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
WITNESS the signatures of the undersigned parties as of the
date first above written.
TRUSTMARK CORPORATION
By:
---------------------------------
Xxxxx X. Day, Chairman of the
Board and Chief Executive
(SEAL) Officer
TRUSTMARK BANK NATIONAL BANK
By:
---------------------------------
Xxxxx X. Day, Chairman of the
Board and Chief Executive
(SEAL) Officer
First Corinth Corp.
By:
---------------------------------
Xxxx X. Xxxxx, Chairman of the
(SEAL) Board
NATIONAL BANK OF COMMERCE OF CORINTH
By:
---------------------------------
Hull Davis, President and Chief
(SEAL) Executive Officer
Board of Directors of First Corinth
Corp.
-------------------------------------
Hull Davis
-------------------------------------
Xxxxxx X. Xxxxxxx, Xx.
-------------------------------------
B. Xxxxx Xxxxx, III
-------------------------------------
Xxxx X. X'Xxxxx, Xx.
-------------------------------------
Xxxx X. Xxxxx
Board of Directors of National Bank
of Commerce of Corinth
43
-------------------------------------
Hull Davis
-------------------------------------
Xxxxx X. Xxxxx
-------------------------------------
Xx. X. X. Xxx
-------------------------------------
X. X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
-------------------------------------
X. X. Xxxxxxx, XX
-------------------------------------
Xxx Xxxx
-------------------------------------
Xxxxxxx Xxxxxxxx
-------------------------------------
X. X. Xxxxxxx
-------------------------------------
Xxxx X. Xxxxx
44
FIRST AMENDMENT TO MERGER AGREEMENT
This First Amendment to Merger Agreement is entered into this the 11th
day of December, 1996, between and among TRUSTMARK CORPORATION, a Mississippi
corporation ("Trustmark"), TRUSTMARK NATIONAL BANK, a national banking
association ("Trustmark Bank") (Trustmark and Trustmark Bank are sometimes
collectively referred to as "Buyers") and FIRST CORINTH CORP. ("Company") and
NATIONAL BANK OF COMMERCE OF CORINTH, a national banking association ("NBC")
(Company and NBC are sometimes collectively referred to as "Sellers").
WITNESSETH
On October 2, 1996, Sellers and Buyers entered into a Merger Agreement
pursuant to which Company will be merged with and into Trustmark and NBC will
be merged with and into Trustmark Bank.
The Merger Agreement provides that the ratio in to which each Company
or NBC common share will be exchanged for shares of Trustmark may be adjusted
based on the Average Market Price of Trustmark shares.
Sellers and Buyers desire to amend the Merger Agreement to clarify the
manner in which the exchange ratio will be adjusted, if applicable.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants set forth herein, the Sellers and Buyers do hereby agree to amend the
Merger Agreement on the following terms and conditions.
1. The third sentence of Paragraph 10.7(a) of the Merger Agreement is
hereby amended to read as follows:
If, on the Adjustment Date, the Average Trustmark Price is more than
$25.00, the adjustment will decrease the number of Trustmark shares in
to which each Company common share will be converted so that the
exchange ratio of the Trustmark shares in to which each Company common
share shall be converted will be equal to the quotient of (i)
$36,531,825 divided by the Average Trustmark Price divided by (ii)
112,800.
2. The third sentence of Paragraph D of Exhibit A to the Merger
Agreement is hereby amended to read as follows:
If, on the Adjustment Date, the Average Trustmark Price is more than
$25.00, the adjustment will decrease the number of Trustmark shares in
to which each Company common share will be converted so that the
exchange ratio of the Trustmark shares in to which each
45
Company common share shall be converted will be equal to the
quotient of (i) $36,531,825 divided by the Average Trustmark
Price divided by (ii) 112,800.
3. Except as modified or amended herein, the Merger Agreement is
ratified and shall remain unchanged and in full force and effect.
WITNESS the signature of the undersigned parties as of the date first
above written.
TRUSTMARK CORPORATION
(Seal) By: /s/ XXXXX X. DAY
-----------------------------------
Xxxxx X. Day, Chairman of the Board
and Chief Executive Officer
TRUSTMARK NATIONAL BANK
(Seal) By: /s/ XXXXX X. DAY
-----------------------------------
Xxxxx X. Day, Chairman of the Board
and Chief Executive Officer
FIRST CORINTH CORP.
(Seal) By: /s/ XXXX X. XXXXX
-----------------------------------
Xxxx X. Xxxxx, Chairman of the
Board
NATIONAL BANK OF COMMERCE OF CORINTH
(Seal) By: /s/ HULL DAVIS
-----------------------------------
Hull Davis, President and Chief
Executive Officer
46
EXHIBIT INDEX
Exhibit A: Plan and Agreement of Merger - The Holding Company
Merger.
Exhibit B: Plan and Agreement of Merger - The Bank Merger.
Exhibit C: Schedule of Contracts.
Exhibit D-1: Schedule of Pending Litigation -- Sellers.
Exhibit D-2: Schedule of Pending Litigation -- Buyers.
Exhibit E: Schedule of Insurance Policies.
Exhibit F: Schedule of Reports filed with Regulatory Authorities.
47
EXHIBIT A
TO
MERGER AGREEMENT
48
PLAN AND AGREEMENT OF MERGER BETWEEN
FIRST CORINTH CORP., A MISSISSIPPI CORPORATION,
AND TRUSTMARK CORPORATION, A MISSISSIPPI CORPORATION
Pursuant to the Mississippi Business Corporation Act (the "Act"), the
merger of First Corinth Corp., a Mississippi corporation ("Company"), with and
into Trustmark Corporation, a Mississippi corporation ("Trustmark"), with
Trustmark as the surviving corporation shall be effected as follows:
A. Effective Date. The merger shall become effective (the
"Effective Date") immediately upon filing of Articles of Merger with the
Secretary of State of the State of Mississippi in accordance with the laws of
the State of Mississippi.
B. Surviving Corporation. The Company shall be merged (the
"Merger") with and into Trustmark. Trustmark shall be the surviving
corporation pursuant to the provisions of, and with the effect provided in, the
Act.
C. Terms and Conditions of the Merger. As of the Effective Date
of the Merger, by virtue of the Merger and without any further action on the
part of the holders of any Company shares, subject to the adjustments provided
herein, each common share of the Company issued and outstanding immediately
prior to the Effective Date of the Merger (other than such shares as to which
dissenter's rights of appraisal have been perfected and not withdrawn), shall
be converted into 12.9545 shares of the common stock of Trustmark.
No fractional Trustmark shares will be issued upon the
surrender for exchange of certificates representing common shares of the
Company. In lieu of any such fractional share, each holder of common shares
of the Company who would otherwise be entitled to a fraction of a Trustmark
share will be paid in cash upon the
49
surrender of all the stock certificates representing the common shares of the
Company by such holder in the amount equal to the product of such fraction
multiplied by $22.00 per share.
If, between the date hereof and the Effective Date 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, split up or stock dividend with a record date within said
period, the number of Trustmark shares to be issued and delivered upon the
Merger shall be appropriately and proportionately adjusted so that the number
of such shares that will be issued and delivered upon the Merger will equal the
number of Trustmark shares that holders of common shares of the Company would
have received had the record date of such reclassification, recapitalization,
split up or stock dividend been immediately following the Effective Date of the
Merger.
Any person whose certificates representing Company common
shares shall have been lost or destroyed may nevertheless obtain the Trustmark
shares to which such Company common shareholder is entitled as a result of the
Merger, provided such Company common shareholder provides Trustmark with a
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 certificates being thereafter
presented to Trustmark for exchange. Until a former Company common shareholder
has surrendered the certificates representing his Company common shares or
provided indemnity as provided above, such former Company common shareholder
shall not be entitled to receive certificates representing the Trustmark shares
to which such shareholder is entitled by virtue of the Merger and
50
no dividend or other distribution with respect of Trustmark shares will be paid
to such persons; provided, however, that when such certificates shall have been
surrendered or indemnity provided, there shall be paid to such persons, without
interest, all dividends and other distributions payable in respect of a record
date after the Effective Date of the Merger on the Trustmark shares for which
such Company common shares shall have been exchanged.
D. Market Price Fluctuations. The exchange ratio will be
adjusted if the 2-week average of the bid/asked prices of Trustmark shares is
greater than $25.00 or less than $22.00 on the Adjustment Date. For purposes
of this Agreement, the Adjustment Date shall be the fifteenth day prior to the
Closing Date. The 2-week average of the bid/asked prices of the Trustmark
shares shall be the average of the closing bid/asked prices of Trustmark shares
as reported in the National Association of Securities Dealers Automated System
for National Market Issues for the 10 business days preceding the Adjustment
Date (the "Average Trustmark Price"). If, on the Adjustment Date, the Average
Trustmark Price is more than $25.00, the adjustment will decrease the number of
Trustmark shares in to which each Company common share will be converted so
that the exchange ratio of the Trustmark shares in to which each Company
common share shall be converted will be equal to the quotient of (i) the amount
of the increase in the Average Trustmark Price that is greater than $25.00 plus
$22.00 (ii) divided into $32,148.00. If, on the Adjustment Date, the Average
Trustmark Price is less than $22.00, the adjustment will increase the number of
Trustmark shares in to which each Company common share will be converted so
that the value of the Trustmark shares in to which each Company common share
shall be converted will not be less than $285.00.
51
Notwithstanding the foregoing sentence, if, on the Adjustment Date, the Average
Trustmark Price is less than $19.00, Trustmark shall have the option to (i)
adjust the exchange ratio so that the value of the Trustmark shares in to which
each Company common share shall be converted will not be less than $285.00,
(ii) to renegotiate the exchange ratio, or (iii) to terminate this Agreement
upon written notice to the Company.
E. Governance of the Surviving Corporation. The Charter of
Incorporation and Bylaws of Trustmark shall be the Charter of Incorporation and
Bylaws of the merged corporations following the Effective Date of the Merger,
unless and until the same shall be amended in accordance with the provisions
thereof and the Act.
F. Board of Directors and Officers. The members of the Board of
Directors and the officers of Trustmark shall be the Board of Directors and
officers of the merged corporation until their respective successors are
elected and qualified.
G. Stock of Surviving Corporation. The shares of common stock of
Trustmark as the surviving corporation outstanding immediately prior to the
Effective Date of the Merger shall remain outstanding.
H. Authorized Capital. The authorized capital stock of Trustmark
as the surviving corporation following the Effective Date of the Merger shall
be 100 million shares of common stock, no par value, unless and until the same
shall be changed in accordance with the Act.
I. Dissenter's Rights of Appraisal. Shareholders of the Company
shall be entitled to exercise dissenter's rights of appraisal as provided
pursuant to the provisions of the Act, or otherwise provided by law.
52
J. Termination. Prior to the Effective Date of the Merger, this
Plan and Agreement of Merger may be terminated as follows:
(a) By the mutual consent of the Boards of Directors of
the Company and Trustmark;
(b) By Trustmark 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 at any time during the due diligence
examination period as provided in Section 5.9 of the Merger Agreement if such
examination, in Trustmark's opinion, reveals previously unknown, adverse
information concerning Company; 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 Company arising subsequent to the completion of due diligence as
referred to in Section 5.9 of the Merger Agreement;
(f) By Company, if at the time of such termination there
shall be a material adverse change in the financial condition or tangible
properties of Trustmark arising subsequent to December 31, 1995;
(g) By Trustmark in accordance with and subject to the
provisions of Section 10.7 of the Merger Agreement;
53
(h) By either Trustmark or Company, if the stockholders
of the Company or NBC fail to approve the Holding Company Merger or Bank Merger
at the meeting of stockholders called for such purpose (including any
adjournment or postponement thereof);
(i) By Trustmark if there has been a material breach by
Company (A) of any of its representations and warranties in the Merger
Agreement or (B) of any obligations therein which have not been promptly cured
after notice thereof from Trustmark;
(j) By Company if there has been a material breach by
Trustmark (A) of any of its representations and warranties set forth in the
Merger Agreement or (B) of any obligations thereunder which have not been
promptly cured after notice thereof by Company.
K. Trustmark and Company intend that the transaction contemplated
by this Plan and Agreement of Merger shall be a tax-free reorganization within
the meaning of Internal Revenue Code Section 368(a)(1)(A).
54
IN WITNESS WHEREOF, the Company and Trustmark have caused this Plan
and Agreement of Merger to be executed, each by its Chief Executive Officer and
attested by its President, Secretary or Assistant Secretary this the _____ day
of October, 1996.
First Corinth Corp.
By:
-----------------------------
Xxxx X. Xxxxx, Chairman
Attested:
By:
-------------------------------
Hull Davis, Its Secretary
TRUSTMARK CORPORATION
By:
-----------------------------
Xxxxx X. Day, Its President
and Chief Executive Officer
Attested:
By:
-------------------------------
Xxxxx X. Xxxxxx, Its Secretary
55
STATE OF MISSISSIPPI
COUNTY OF XXXXXX
Personally appeared before me, the undersigned authority in and for
the said county and state, on this _____ day of October, 1996, within my
jurisdiction, the within named Xxxx X. Xxxxx and Hull Davis, who acknowledged
that they are Chairman and Secretary, respectively, of First Corinth Corp., a
Mississippi corporation, and that for and on behalf of the said corporation,
and as its act and deed they executed the above and foregoing instrument, after
first having been duly authorized by said corporation so to do.
------------------------------
Notary Public
My Commission Expires:
-----------------------
STATE OF MISSISSIPPI
COUNTY OF XXXXX
Personally appeared before me, the undersigned authority in and for
the said county and state, on this _____ day of October, 1996, within my
jurisdiction, the within named Xxxxx X. Day and Xxxxx X. Xxxxxx, who
acknowledged that they are President and Chief Executive Officer and Secretary,
respectively, of Trustmark Corporation, a Mississippi corporation, and that for
and on behalf of the said corporation, and as its act and deed they executed
the above and foregoing instrument, after first having been duly authorized by
said corporation so to do.
------------------------------
Notary Public
My Commission Expires:
-----------------------
56
EXHIBIT B
TO
MERGER AGREEMENT
57
PLAN AND AGREEMENT OF MERGER
OF
NATIONAL BANK OF COMMERCE OF CORINTH,
A NATIONAL BANKING ASSOCIATION
WITH AND INTO
TRUSTMARK NATIONAL BANK, A NATIONAL BANKING ASSOCIATION
UNDER THE CHARTER OF TRUSTMARK NATIONAL BANK
UNDER THE TITLE OF TRUSTMARK NATIONAL BANK
This Plan and Agreement of Merger is made and entered into between
National Bank of Commerce of Corinth (hereinafter referred to as "NBC"), a
national banking association organized under the laws of the United States,
being located in Corinth, County of Xxxxxx, State of Mississippi with a capital
of $550,000 divided into 110,000 shares of common stock, each of $5.00 par
value, surplus of $7,200,000 and undivided profits, including capital reserves,
of $5,829,790 and net unrealized gains on securities available for sale of
$163,802 as of June 30, 1996, and Trustmark National Bank (hereinafter referred
to as "Trustmark Bank"), a national banking association organized under the
laws of the United States, being located in Jackson, County of Xxxxx, State of
Mississippi, with a capital of $13,389,775 divided into 2,677,955 shares of
common stock, each of $5.00 par value, surplus of $237,713,736 and undivided
profits, including capital reserves, of $237,945,735 and net unrealized holding
losses on available for sale securities of ($3,926,855) as of June 30, 1996.
NBC and Trustmark Bank are each acting pursuant to a resolution of its board of
directors, adopted by a vote of a majority of its directors, pursuant to the
authority given by and in accordance with the provisions of Article 00, Xxxxxxx
000x xx xxx Xxxxxx Xxxxxx Code, and joined in by Trustmark Corporation, a
Mississippi
58
corporation, ("Trustmark") the parent of Trustmark Bank, for the purpose of its
agreement to issue shares of its common stock upon the merger of NBC with and
into Trustmark Bank.
NBC and Trustmark Bank hereby adopt this Plan and Agreement of Merger
for the purpose of merging NBC with and into Trustmark Bank.
Section 1. NBC shall be merged with and into Trustmark Bank under the
Charter of Trustmark Bank (the "Merger").
Section 2. The name of the merged association (hereinafter referred
to as the "Association") shall be Trustmark National Bank.
Section 3. The business of the Association shall be that of a
national banking association. This business shall be conducted by the
Association at its main office which shall be located at Jackson, Mississippi,
and at its legally established branches.
Section 4. The amount of capital stock of the Association shall be
$13,389,775 divided into 2,677,955 shares of common stock, each of a $5.00 par
value and at the time the Merger shall become effective, the Association shall
have a surplus of $245,463,736, and undivided profits, including capital
reserves, which when combined with the capital and surplus will be equal to the
combined capital structures of the merging banks as stated in the preamble of
this agreement, adjusted however, for normal earnings and expenses between June
30, 1996, and the effective time of the Merger.
Section 5. All assets of each of the merging banks, as they exist at
the effective time of the Merger shall pass to and vest in the Association
without any conveyance or other transfer; and the Association shall be
responsible for all of the liabilities of
59
every kind and description, including liabilities arising out of the operation
of a trust department, of each of the merging banks existing as of the
effective time of the Merger.
As its contribution to the capital structure of the Association, NBC
shall contribute to the Association acceptable assets having a book value, over
and above its liability to its creditors, of at least $13,743,592, and having
an estimated fair value, over and above its liability to its creditors, of at
least $13,743,592, adjusted, however, for normal earnings and expenses between
June 30, 1996, and the effective time of the Merger, and for allowance of cash
payments, if any, permitted under this agreement.
As its contribution to the capital structure of the Association,
Trustmark Bank shall contribute acceptable assets having a book value, over and
above its liability of its creditors, of at least $485,122,391 and having an
estimated fair value, over and above its liability to is creditors, of at least
$485,122,391, adjusted, however, for normal earnings and expenses between June
30, 1996, and the effective time of the Merger, and for allowance of cash
payments, if any, permitted under this agreement.
Section 6. At the effective time of the Merger Trustmark shall retain
its present rights in and to each of the 2,677,955 issued and outstanding
shares of common stock, $5.00 par value of Trustmark Bank, which are owned by
Trustmark and each of the 110,000 issued and outstanding shares of NBC which
will not at that time be owned by Trustmark shall, subject to the adjustments
provided in Sections 10.5 and 10.7 of the Merger Agreement dated as of October
2, 1996 to which this Plan and Agreement of Merger is in
60
furtherance (the "Merger Agreement"), be converted into 13.4825 shares of
common stock of Trustmark.
Section 7. NBC shall be permitted to declare and pay an annual cash
dividend out of current operating profits in the manner and to the extent
provided in the Merger Agreement. Except as set forth herein, NBC shall not
declare any other cash or other dividends prior to closing.
From the date hereof until the effective time of the Merger, Trustmark
Bank shall be entitled to declare and pay such dividends as may, from time to
time, be declared by the Board of Directors of Trustmark Bank.
Section 8. The present Board of Directors of Trustmark Bank shall
continue to serve as the Board of Directors of the Association until the next
annual meeting of shareholders or until such time as their successors have been
elected and have qualified.
Section 9. Effective as of the time the Merger shall become effective
as specified in the Merger approval to be issued by the Comptroller of the
Currency, the Articles of Association of the merged bank shall read in their
entirety as follows:
FIRST. The title of this Association shall be "Trustmark National
Bank."
SECOND. The main office of the Association shall be in Jackson,
County of Xxxxx, State of Mississippi. The general business of the Association
shall be conducted at its main office and its branches.
THIRD. The Board of Directors of this Association shall consist of
not less than five nor more than twenty-five members,
61
the exact number of Directors within such minimum and maximum limits to be
fixed and determined from time to time by resolution of a majority of the full
Board of Directors or by resolution of the shareholders at any annual or
special meeting thereof. Each Director shall own common or preferred stock of
the Association or of a company which has control over the Association within
the meaning of 12 U.S.C. Section 1841 ("The Bank Holding Company Act"), with
an aggregate par, fair market or equity value of not less than $1,000, as of
either (i) the date of purchase, (ii) the date the person became a director, or
(iii) the date of that person's most recent election to the Board of Directors,
whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used. Unless otherwise provided by the
laws of the United States, any vacancy in the Board of Directors for any
reason, including an increase in the number thereof, shall be filled through
appointment by a majority of the remaining Directors then in office, and any
director so appointed shall hold his place until the next election, and until
his successor shall have been elected and qualified.
FOURTH. The annual meeting of the shareholders for the election of
Directors and the transaction of whatever other business may be brought before
said meeting shall be held at the main office or such other place as the Board
of Directors may designate, on the day of each year specified therefor in the
Bylaws, but if no election is held on that day, it may be held on any
subsequent day according to the provisions of law; and all
62
elections shall be held according to such lawful regulations as may be
prescribed by the Board of Directors.
Nominations for election to the Board of Directors may be made by the
Board of Directors or by any stockholder of any outstanding class of capital
stock of the bank entitled to vote for election of directors. Nominations,
other than those made by or on behalf of the existing management of the bank,
shall be made in writing and shall be delivered or mailed to the Chairman of
the Board of the bank not less than 14 days nor more than 50 days prior to any
meeting of stockholders called for the election of directors; provided however,
that if less than 21 days' notice of the meeting is given to shareholders, such
nominations shall be mailed or delivered to the Chairman of the Board of the
bank not later than the close of business on the seventh day following the day
on which the notice of the meeting was mailed. Such notification shall
contain the following information to the extent known to the notifying
shareholder: (a) the name and address of each proposed nominee; (b) the
principal occupation of each proposed nominee; (c) the total number of shares
of capital stock of the bank that will be voted for each proposed nominee; (d)
the name and residence address of the notifying shareholder; and (e) the number
of shares of capital stock of the bank owned by the notifying shareholder.
Nominations not made in accordance herewith may, in his discretion, be
disregarded by the chairman of the meeting, and upon his instructions the vote
tellers may disregard all votes cast for each such nominee.
63
FIFTH. The authorized amount of capital stock of this Association
shall be 2,677,955 shares of common stock of the par value of Five Dollars
($5.00) each; but said capital stock may be increased or decreased from time to
time, in accordance with the provisions of the laws of the United States.
If the capital stock is increased by the sale of additional shares
thereof, each shareholder shall be entitled to subscribe for such additional
shares in proportion to the number of shares of said capital stock owned by him
at the time the increase is authorized by the shareholders unless another time
subsequent to the date of the shareholders' meeting is specified in a
resolution adopted by the shareholders at the time the increase is authorized,
except when they are (1) issued to effect or to raise the necessary capital to
effect a merger or consolidation, (2) issued to effect or to raise the
necessary capital to effect an acquisition of assets, (3) issued for
consideration other than cash, (4) issued to satisfy conversion rights, or
other rights or options, or (5) issued pursuant to any employee stock option or
stock purchase plan. The Board of Directors shall have the power to prescribe
a reasonable period of time within which the preemptive rights to subscribe to
the new shares of capital stock must be exercised.
The Association, at any time and from time to time, may authorize and
issue debt obligations, whether or not subordinated, without the approval of
the shareholders.
SIXTH. The Board of Directors shall appoint one of its members
President of the Association, who shall be Chairman of the Board, unless the
Board appoints another director to be the
64
Chairman. The Board of Directors shall have the power to appoint one or more
Vice Presidents; and to appoint a Secretary and such officers and employees as
may be required to transact the business of the Association.
The Board of Directors shall have the power to define the duties of
the officers and employees of the Association; to fix the salaries to be paid
to them; to dismiss them; to require bonds from them and to fix the penalty
thereof; to regulate the manner in which any increase of the capital of the
Association shall be made; to manage the affairs of the Association; to make
all Bylaws that it may be lawful for them to make; and generally to do and
perform all acts that it may be legal for a Board of Directors to do and
perform.
SEVENTH. The Board of Directors shall have the power to change the
location of the main office to any other place within the limits of Jackson,
Mississippi, without the approval of the shareholders but subject to the
approval of the Comptroller of the Currency; and shall have the power to
establish or change the location of any branch or branches of the Association
to any other location, without the approval of the shareholders but subject to
the approval of the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall continue
until terminated in accordance with the laws of the United States.
NINTH. The Board of Directors of this Association, or any three or
more shareholders owning, in the aggregate, not less than 25 percent of the
stock of this Association, may call a special
65
meeting of the shareholders at any time. Unless otherwise provided by the laws
of the United States, a notice of the time, place, and purpose of every annual
or special meeting of the shareholders shall be given by First Class Mail,
postage prepaid, mailed at least ten days prior to the date of such meeting to
each shareholder of record at his address as shown upon the books of this
Association.
TENTH. Any person, his heirs, executors, or administrators, may be
indemnified or reimbursed by the Association for reasonable expenses actually
incurred in connection with any action, suit, or proceeding, civil or criminal,
to which he or they shall be made a party or potential party by reason of his
being or having been a director, or honorary or advisory director, officer, or
employee of the Association or of any firm, corporation, or organization which
he served in any such capacity at the request of the Association; provided,
however, that no person shall be so indemnified or reimbursed in relation to
any matter in such action, suit, or proceeding as to which he shall finally be
adjudged to have been guilty of or liable for negligence or willful misconduct
in the performance of his duties to the Association; and provided further, that
no person shall be so indemnified or reimbursed in relation to any
administrative proceeding or action instituted by an appropriate bank
regulatory agency which proceeding or action results in a final order assessing
civil money penalties or requiring affirmative action by an individual or
individuals in the form of payments to the Association. The foregoing right of
indemnification or reimbursement shall not be exclusive of other rights to
which such
66
person, his heirs, executors, or administrators, may be entitled as a matter of
law. The Association may, upon affirmative vote of a majority of its Board of
Directors, purchase insurance to indemnify its directors, honorary or advisory
directors, officers and employees to the extent that such indemnification is
allowed in these Articles of Association. Such insurance may, but need not, be
for the benefit of all directors, honorary or advisory directors, officers or
employees.
ELEVENTH. These Articles of Association may be amended at any regular
or special meeting of the shareholders by the affirmative vote of the holders
of a majority of the stock of this Association, unless the vote of the holders
of a greater amount of stock is required by law, and in that case by the vote
of the holders of such greater amount.
Section 10. This Agreement may be terminated in the manner and to the
extent provided in the Merger Agreement.
Section 11. This Agreement shall be ratified and confirmed by the
affirmative vote of shareholders of each of the merging banks owning at least
sixty-seven percent (67%) of its capital stock outstanding, at a meeting to be
held on the call of the directors; and the Merger shall become effective at the
time specified in the approval of merger to be issued by the Comptroller of the
Currency of the United States.
Section 12. Trustmark Bank and NBC intend that the transactions
contemplated by this Plan and Agreement of Merger shall be tax-free
reorganizations under Internal Revenue Code
67
Section 368(a)(1)(A) with respect to the merger of NBC with and into Trustmark
Bank.
WITNESS, the signatures and seals of said merging banks this _____ day
of October, 1996 each hereunto set by its Chief Executive Officer and attested
by its President, Executive Vice President, Secretary or Assistant Secretary
pursuant to a resolution of its Board of Directors, acting by a majority
thereof, and witness the signature hereto of the majority of each of said
Boards of Directors.
TRUSTMARK NATIONAL BANK
By:
------------------------------------
Xxxxx X. Day, Its Chairman of the
Board and Chief Executive Officer
Attest:
By:
--------------------------
Xxxxxx X. Host, Its
Executive Vice President
and Chief Financial Officer
(SEAL)
Ratified by the Board of Directors of
Trustmark National Bank
----------------------------------------
J. Xxxxx Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxx X. Xxxxx, Xx.
----------------------------------------
Xxxxx X. Xxxx
68
----------------------------------------
Xxxxxx X. Xxxxx III
----------------------------------------
Xxxxx X. Day
----------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
----------------------------------------
X.X. Xxxxxxxx, Xx.
----------------------------------------
C. Xxxxxx Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxx III
----------------------------------------
Xxxx X. Xxxxx
----------------------------------------
T.H. Xxxxxxx III
----------------------------------------
Xxxxx X. Xxxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxx III
----------------------------------------
Xxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxx
69
---------------------------------------
Xxxxx X. Rent
---------------------------------------
Xxxxxxx Xxxxxx Shows
---------------------------------------
Xxxxx X. Xxxxxx
---------------------------------------
XxXxx X. Xxxxxx, Xx.
---------------------------------------
Xxxx X. Xxxxxx, Xx.
---------------------------------------
Xxxx X. Xxxxxxxx, Xx.
---------------------------------------
Xxxxx Xxxx, Xx.
TRUSTMARK CORPORATION
By:
-----------------------------------
Xxxxx X. Day, Its Chairman of the
Board and Chief Executive Officer
Attest:
By:
--------------------------
Xxxxx X. Xxxxxx, Its
Secretary
(SEAL)
70
NATIONAL BANK OF COMMERCE OF CORINTH
BY:
----------------------------------
Xxxx X. Xxxxx, Its Chairman
Attest:
By:
-----------------------------------
Hull Davis, Its President and
Chief Executive Officer
(SEAL)
Ratified by the Board of Directors of
National Bank of Commerce of Corinth
----------------------------------------
Hull Davis
----------------------------------------
Xxxxx X. Xxxxx
----------------------------------------
Xx. X. X. Xxx
----------------------------------------
X. X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
----------------------------------------
X. X. Xxxxxxx, XX
----------------------------------------
Xxx Xxxx
----------------------------------------
Xxxxxxx Xxxxxxxx
----------------------------------------
X. X. Xxxxxxx
----------------------------------------
Xxxx X. Xxxxx
STATE OF MISSISSIPPI
COUNTY OF XXXXX
Personally appeared before me, the undersigned authority in and for
the said county and state, on this _____ day of October, 1996, within my
jurisdiction, the within named Xxxxx X. Day, who acknowledged that he is
Chairman of the Board and Chief Executive Officer of Trustmark National Bank, a
national banking association, and that for and on behalf of the said
association, and as its act
71
and deed he executed the above and foregoing instrument, after first having
been duly authorized by said association so to do.
------------------------------
Notary Public
My Commission expires:
----------------------
STATE OF MISSISSIPPI
COUNTY OF ___________
Personally appeared before me, the undersigned authority in and for
the said county and state, on this _____ day of October, 1996, within my
jurisdiction, the within named Xxxx X. Xxxxx, who acknowledged that he is
Chairman of the Board of National Bank of Commerce of Corinth, a national bank
association, and that for and on behalf of the said association, and as its act
and deed he executed the above and foregoing instrument, after first having
been duly authorized by said association so to do.
------------------------------
Notary Public
My Commission expires:
----------------------
