EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
DATED AS OF NOVEMBER 16, 2004
BY AND AMONG
▇▇▇▇▇▇ BANK HOLDING COMPANY,
▇▇▇▇▇▇ BANK AND TRUST
AND
DEKALB COMMUNITY BANK
TABLE OF CONTENTS
ARTICLE 1 THE MERGER................................................................. 1
1.1 The Merger.................................................................... 1
1.2 The Closing................................................................... 1
1.3 Effective Time................................................................ 1
ARTICLE 2 CHARTER, BYLAWS, AND OFFICERS AND DIRECTORS OF THE SURVIVING CORPORATION... 2
2.1 Charter and Bylaws............................................................ 2
2.2 Directors and Executive Officers of the Surviving Corporation................. 2
2.3 DeKalb Board and Branches..................................................... 2
ARTICLE 3 CONVERSION OF DEKALB STOCK................................................. 2
3.1 Conversion of DeKalb Common Stock in the Merger............................... 2
3.2 Surrender and Exchange of Shares.............................................. 2
3.3 Dividends; Transfer Taxes; Withholdings; Escheat.............................. 3
3.4 No Fractional Securities...................................................... 4
3.5 No Further Rights; Closing of DeKalb Transfer Books........................... 4
3.6 Dissenting Shares............................................................. 4
ARTICLE 4 REPRESENTATIONS AND WARRANTIES BY DEKALB................................... 5
4.1 Organization, Good Standing and Qualification................................. 5
4.2 Authorization................................................................. 5
4.3 Valid and Binding Agreement................................................... 5
4.4 No Violation.................................................................. 5
4.5 Capitalization................................................................ 5
4.6 Title to Properties; Encumbrances............................................. 5
4.7 No Undisclosed Liability...................................................... 5
4.8 Compliance with Applicable Law................................................ 6
4.9 Litigation.................................................................... 6
4.10 Contracts and Commitments.................................................... 6
4.11 Brokerage Fees............................................................... 6
4.12 Corporate Records............................................................ 6
4.13 Full Disclosure.............................................................. 6
ARTICLE 5 REPRESENTATIONS AND WARRANTIES BY PARENT AND THE BANK...................... 7
5.1 Organization and Good Standing................................................ 7
5.2 Authorization................................................................. 7
5.3 Valid and Binding Agreement................................................... 7
5.4 No Violation.................................................................. 7
5.5 Brokerage Fees................................................................ 7
5.6 Parent Common Stock........................................................... 7
5.7 Capitalization................................................................ 8
5.8 Financial Reports and Securities Documents.................................... 8
5.9 Full Disclosure............................................................... 8
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ARTICLE 6 COVENANTS AND AGREEMENTS OF DEKALB......................................... 8
6.1 Conduct of Business Pending the Closing....................................... 8
6.2 Access; Further Assurances.................................................... 10
6.3 Schedules..................................................................... 10
6.4 Regulatory Filings............................................................ 10
6.5 Consents and Approvals........................................................ 10
ARTICLE 7 COVENANTS AND AGREEMENTS OF PARENT AND THE BANK............................ 11
7.1 Further Assurances............................................................ 11
ARTICLE 8 CONDITIONS TO PARENT'S AND THE BANK'S OBLIGATIONS.......................... 11
8.1 Representations and Warranties................................................ 11
8.2 Performance by the DeKalb..................................................... 11
8.3 Officer's Certificate......................................................... 11
8.4 Shareholder Approval.......................................................... 11
8.5 Regulatory Approvals.......................................................... 11
8.6 No Injunction................................................................. 11
8.7 Consents and Approvals........................................................ 11
8.8 Litigation.................................................................... 12
8.9 No Material Adverse Change; Due Diligence Review.............................. 12
8.10 Fairness Opinion............................................................. 12
ARTICLE 9 CONDITIONS TO THE DEKALB'S OBLIGATIONS..................................... 12
9.1 Representations and Warranties................................................ 12
9.2 Performance................................................................... 12
9.3 Officer's Certificate......................................................... 12
9.4 No Injunction................................................................. 12
9.5 Adjustments to Book Value..................................................... 12
9.6 Fairness Opinion.............................................................. 13
ARTICLE 10 TERMINATION OF AGREEMENT.................................................. 13
ARTICLE 11 MISCELLANEOUS............................................................. 14
11.1 Survival..................................................................... 14
11.2 Expenses..................................................................... 14
11.3 Assignability; Parties in Interest........................................... 14
11.4 Entire Agreement; Amendments................................................. 14
11.5 Headings..................................................................... 14
11.6 Severability................................................................. 15
11.7 Notices...................................................................... 15
11.8 Governing Law................................................................ 15
11.9 Counterparts................................................................. 15
EXHIBIT A
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Agreement") made this 16th day of
November, 2004 by and among ▇▇▇▇▇▇ BANK HOLDING COMPANY, a Tennessee corporation
("Parent"), ▇▇▇▇▇▇ BANK AND TRUST, a state chartered bank incorporated under the
laws of the State of Tennessee (the "Bank"), and DEKALB COMMUNITY BANK, a state
chartered bank incorporated under the laws of the State of Tennessee ("DeKalb").
WHEREAS, the Boards of Directors of Parent, the Bank and DeKalb each have
determined that a business combination between Parent, the Bank, and DeKalb is
in the best interests of their respective companies and shareholders and
presents an opportunity for their respective companies to achieve long-term
strategic and financial benefits, and accordingly have agreed to effect the
merger provided for herein upon the terms and subject to the conditions set
forth herein;
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants, and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE 1
THE MERGER
1.1 THE MERGER. Subject to the terms and conditions of this Agreement, at
the Effective Time, DeKalb shall be merged with and into the Bank in accordance
with the applicable provisions of the Tennessee Business Corporation Act (the
"TBCA") (the "Merger"), the separate corporate existence of DeKalb shall cease
and the Bank shall survive and continue to exist as a corporation incorporated
under the TBCA and as a wholly owned subsidiary of Parent (the Bank, as the
surviving corporation in the Merger, sometimes being referred to herein as the
"Surviving Corporation"). The Merger shall be consummated pursuant to the terms
of this Agreement, which has been approved and adopted by the respective Boards
of Directors of Parent, the Bank and DeKalb.
1.2 THE CLOSING. Subject to the terms and conditions of this Agreement,
the closing of the Merger (the "Closing") shall take place at the offices Bass,
▇▇▇▇▇ & ▇▇▇▇ PLC, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, at
10:00 a.m., local time, on March 31, 2005 or, if later, the first business day
immediately following the day on which the last to be fulfilled or waived of the
conditions set forth in Articles 8 and 9 shall be fulfilled or waived in
accordance herewith or at such other time, date, or place as Parent and DeKalb
may agree. The date on which the Closing occurs is hereinafter referred to as
the "Closing Date."
1.3 EFFECTIVE TIME. If all the conditions to the Merger set forth in
Articles 8 and 9 shall have been fulfilled or waived in accordance herewith and
this Agreement shall not have been terminated as provided in Article 10, the
parties hereto shall cause Articles of Merger, in substantially the form
attached hereto as Exhibit A, to be properly executed and filed in accordance
with the applicable provisions of the TBCA on the Closing Date. The Merger shall
become effective upon the filing of the Articles of Merger with the Secretary of
State of the State of Tennessee, or at such later time that the parties hereto
shall have agreed upon and designated in such filings as the effective time of
the Merger (the "Effective Time").
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ARTICLE 2
CHARTER, BYLAWS, AND OFFICERS AND DIRECTORS OF THE SURVIVING
CORPORATION
2.1 CHARTER AND BYLAWS. The Charter and Bylaws of the Surviving
Corporation immediately after the Merger shall be the Charter and Bylaws of the
Bank in effect immediately prior to the Merger.
2.2 DIRECTORS AND EXECUTIVE OFFICERS OF THE SURVIVING CORPORATION. The
directors and executive officers of the Surviving Corporation immediately after
the Merger shall be the directors and executive officers of the Bank immediately
prior to the Merger, each of whom shall serve until such time as their
successors shall be duly elected and qualified.
2.3 DEKALB BOARD AND BRANCHES. After the Merger, the directors of the
DeKalb shall become members of the DeKalb Community Board, shall meet monthly to
provide advice regarding DeKalb County operations to the Board of Directors of
the Bank and shall be compensated therefore in the same amount as previously
compensated as directors of DeKalb. The branches of DeKalb after the Merger
shall operate as "DeKalb Community Bank, an office of ▇▇▇▇▇▇ Bank and Trust."
ARTICLE 3
CONVERSION OF DEKALB STOCK
3.1 CONVERSION OF DEKALB COMMON STOCK IN THE MERGER. At the Effective
Time, by virtue of the Merger and without any action on the part of any holder
of any capital stock of DeKalb, each issued and outstanding share of common
stock of DeKalb ("DeKalb Common Stock") shall be converted into and become a
number of shares of Parent common stock ("Parent Common Stock"), equal to the
quotient of the (i) book value per share of the DeKalb Common Stock at December
31, 2004 divided by (ii) the book value per share of the Parent Common Stock, at
December 31, 2004 as such book values may be adjusted by Professional Bank
Services, Inc. ("PBS") and as the book value of Parent Common Stock shall be
adjusted to account for Parent's regular dividend paid to its shareholders in
January 2005. (the "Merger Consideration"). No fractional shares shall be issued
and in lieu thereof, a cash payment shall be made pursuant to Section 3.4 hereof
3.2 SURRENDER AND EXCHANGE OF SHARES.
(a) The Bank shall act as Exchange Agent hereunder (the "Exchange
Agent"). Prior to Effective Time, Parent shall deposit with or for the account
of the Exchange Agent stock certificates representing the number of shares of
Parent Common Stock issuable pursuant to Section 3.1 in exchange for outstanding
shares of DeKalb Common Stock, which shares of Parent Common Stock shall be
deemed to have been issued at the Effective Time and which certificates shall be
returned to Parent if such Effective Time does not occur.
(b) As soon as practicable after the Effective Time (but not later
than the first business day after the Effective Time), Parent shall cause the
Exchange Agent to mail to each holder of record of a certificate or certificates
which immediately prior to the Effective Time represented outstanding shares of
DeKalb Common Stock (the "Certificates") that were converted pursuant to Section
3.1 into the right to receive shares of Parent Common Stock (i) a form of letter
of transmittal specifying that delivery shall be effected, and risk of loss and
title to the Certificates shall pass, only upon proper delivery of the
Certificates to the Exchange Agent and (ii) instructions for use in surrendering
such Certificates in exchange for certificates representing shares of Parent
Common
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Stock and any cash in lieu of fractional shares of Parent Common Stock. Upon
surrender of a Certificate for cancellation to the Exchange Agent, together with
such letter of transmittal, duly executed, and such other documents as may be
reasonably required by the Exchange Agent, the holder of such Certificate shall
be entitled to receive in exchange therefor (x) a certificate representing that
number of whole shares of Parent Common Stock which such holder has the right to
receive pursuant to the provisions of this Article 3 and (y) cash in lieu of any
fractional shares of Parent Common Stock to which such holder is entitled
pursuant to Section 3.4, after giving effect to any required tax withholdings,
and the Certificate so surrendered shall forthwith be canceled. In the event of
a transfer of ownership of DeKalb Common Stock which is not registered in the
transfer records of the DeKalb, a certificate representing the proper number of
shares of Parent Common Stock may be issued to a transferee if the Certificate
representing such DeKalb Common Stock is presented to the Exchange Agent,
accompanied by all documents required to evidence and effect such transfer, and
by evidence that any applicable stock transfer taxes have been paid. Until
surrendered as contemplated by this Section 3.2(b), each Certificate shall be
deemed at any time after the Effective Time to represent only the right to
receive upon such surrender a certificate representing shares of Parent Common
Stock and cash in lieu of any fractional shares of Parent Common Stock as
contemplated by this Article 3. In no event will the holder of any such
surrendered Certificate be entitled to receive interest on any cash to be
received in lieu of fractional shares.
(c) If any Certificate shall have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the person claiming such
Certificate to be lost, stolen or destroyed and, if reasonably required by
Parent, the posting by such person of a bond, in such reasonable and customary
amount as Parent may direct, as indemnity against any claim that may be made
against it with respect to such Certificate, the Exchange Agent will issue the
corresponding Certificate representing Parent Common Stock to which the person
is entitled to hereunder in exchange for such lost, stolen or destroyed
Certificate.
3.3 DIVIDENDS; TRANSFER TAXES; WITHHOLDINGS; ESCHEAT. No dividends or
distributions that are declared on shares of Parent Common Stock after the
Effective Time will be paid to persons entitled to receive certificates
representing shares of Parent Common Stock until such persons surrender their
Certificates. Subject to applicable law, upon such surrender, there shall be
paid, to the person in whose name the certificates representing such shares of
Parent Common Stock shall be issued, any dividends or distributions with respect
to such shares of Parent Common Stock which have a record date after the
Effective Time and shall have become payable between the Effective Time and the
time of such surrender. In no event shall the person entitled to receive such
dividends or distributions be entitled to receive interest thereon. As soon as
practicable following the date which is six months after the Effective Time, the
Exchange Agent shall deliver to the Surviving Corporation all cash, certificates
and other documents in its possession relating to the transactions described in
this Agreement, and any holders of DeKalb Common Stock who have not theretofore
complied with this Article 3 shall look thereafter only to the Surviving
Corporation for the shares of Parent Common Stock, any dividends or
distributions thereon, and any cash in lieu of fractional shares thereof to
which they are entitled pursuant to this Article 3. Notwithstanding the
foregoing, neither the Exchange Agent nor any party hereto shall be liable to a
holder of DeKalb Common Stock for any shares of Parent Common Stock, any
dividends or distributions thereon or any cash in lieu of fractional shares
thereof delivered to a public official pursuant to applicable abandoned
property, escheat or similar laws upon the lapse of the applicable time periods
provided for therein. Parent or the Exchange Agent shall be entitled to deduct
and withhold from the consideration otherwise payable pursuant to this Agreement
to any holder of a Certificate such amounts as Parent or the Exchange Agent are
required to deduct and withhold under the Code or any provision of state, local
or foreign tax law with respect to the making of such payment. To the extent
that amounts are so withheld by Parent or the Exchange Agent, such withheld
amounts shall be treated for all purposes
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of this Agreement as having been paid to the holder of the Certificate in
respect of whom such deduction and withholding were made by Parent or the
Exchange Agent.
3.4 NO FRACTIONAL SECURITIES. No certificates or scrip representing less
than one whole share of Parent Common Stock shall be issued pursuant to this
Agreement. In lieu of any such fractional share, each holder of record of DeKalb
Common Stock who would otherwise have been entitled to such fractional shares of
Parent Common Stock shall be paid cash (without interest) in an amount equal to
the fractional share amount to which such holder would be otherwise entitled
multiplied by the closing sale price of Parent's Common Stock on the date
closest to, but not after, the Closing Date. As soon as practicable after the
determination of the amount of cash to be paid to the holders of DeKalb Common
Stock in lieu of any fractional share interests, the Exchange Agent shall make
available in accordance with this Agreement such amounts to such holders. The
fractional Parent Common Stock interests of each such holder will be aggregated,
and no such holder will receive cash in an amount equal to or greater than the
value of one whole share of Parent Common Stock.
3.5 NO FURTHER RIGHTS; CLOSING OF DEKALB TRANSFER BOOKS. All shares of
Parent Common Stock issued pursuant to this Article 3 shall be deemed to have
been issued and paid in full satisfaction of all rights pertaining to the
corresponding shares of DeKalb Common Stock, subject, however, to the Surviving
Corporation's obligation to pay any dividends or make any other distributions
with a record date prior to the Effective Time which may have been declared or
made by DeKalb on such shares of DeKalb Common Stock in accordance with the
terms of this Agreement or prior to the date of this Agreement and which remain
unpaid at the Effective Time. At the Effective Time, the stock transfer books of
DeKalb shall be closed and no transfer of shares of DeKalb Common Stock shall
thereafter be made on such stock transfer books. If, after the Effective Time,
Certificates are presented to the Surviving Corporation, they shall be canceled
and exchanged as provided in this Article 3; provided, however, if any
Certificate has not been surrendered prior to five years after the Effective
Time (or immediately prior to such earlier date on which Parent Common Stock or
any dividends or distributions with respect to Parent Common Stock as
contemplated by Section 3.5 in respect of such Certificate would otherwise
escheat to or become the property of any Government), any such shares, cash,
dividends or distributions in respect of such Certificate shall, to the extent
permitted by applicable law, become the property of the Surviving Corporation,
free and clear of all claims or interest of any person previously entitled
thereto.
3.6 DISSENTING SHARES. Each outstanding share of DeKalb Common Stock the
holder of which has perfected his right to dissent under the Tennessee Business
Corporation Act (the "TBCA") and has not effectively withdrawn or lost such
right as of the Effective Time (the "Dissenting Shares") shall not be converted
into or represent a right to the Merger Consideration hereunder, and the holder
thereof shall be entitled only to such rights as are granted by the TBCA. DeKalb
shall give Parent prompt notice upon receipt by DeKalb of any such written
demands for payment of the fair value of such shares of DeKalb Common Stock and
of withdrawals of such demands and any other instruments provided pursuant to
the TBCA. If any holder of Dissenting Shares shall fail to perfect or shall have
effectively withdrawn or lost the right to dissent at or prior to the Effective
Time, the Dissenting Shares held by such holder shall be converted into a right
to receive the Merger Consideration in accordance with the applicable provisions
of this Agreement. If any holder of Dissenting Shares shall have effectively
withdrawn or lost the right to dissent (through failure to perfect or otherwise)
after the Effective Time, the Dissenting Shares held by such holder shall be
converted on a share by share basis into the Merger Consideration in accordance
with the applicable provisions of this Agreement as Parent or the Exchange Agent
shall determine. Any payments made in respect of Dissenting Shares shall be made
by the Surviving Corporation.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES BY DEKALB
DeKalb hereby represents and warrants as follows:
4.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. DeKalb is a state
chartered bank duly organized, validly existing and in good standing under the
laws of the State of Tennessee. DeKalb has full corporate power and authority to
carry on its business as now conducted and possesses all governmental and other
permits, licenses and other authorizations to own, lease or operate its assets
and properties as now owned, leased and operated and to carry on its business as
presently conducted, except where failure to possess such permit, license or
other authorization could not reasonably be expected to have a material adverse
effect on the business, results of operations, prospects or financial condition
("Material Adverse Effect") of DeKalb.
4.2 AUTHORIZATION. The Board of Directors of DeKalb has taken all action
required by law, its Charter, Bylaws and otherwise to authorize the execution
and delivery by DeKalb of this Agreement and the consummation by DeKalb of the
transactions contemplated hereby.
4.3 VALID AND BINDING AGREEMENT. This Agreement constitutes a valid and
binding agreement of DeKalb, enforceable against DeKalb in accordance with its
terms subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and similar laws of general applicability relating to or affecting
creditors' rights and as to general equity principles.
4.4 NO VIOLATION. Except as set forth on Schedule 4.4, the execution and
delivery of this Merger Agreement and any other documents contemplated hereby by
DeKalb do not, and the consummation of the transactions contemplated hereby will
not, (a) violate any provision of, constitute a default under or otherwise give
any person the right to terminate, or result in the creation of any lien or
security interest under, any agreement, indenture, instrument, lease, security
agreement, mortgage or lien to which DeKalb is a party or by which any of
DeKalb's assets or properties are bound; (b) violate any provision of the
Charter or Bylaws of DeKalb; (c) violate any order, arbitration award, judgment,
writ, injunction, decree, statute, rule or regulation applicable to DeKalb; or
(d) violate any other contractual or legal obligation or restriction to which
DeKalb is subject.
4.5 CAPITALIZATION. The authorized capital stock of DeKalb consists solely
of 1,000,000 shares of DeKalb Common Stock of which 753,272 shares are issued
and outstanding. All of the DeKalb Shares are duly authorized, validly issued
and outstanding and fully paid and nonassessable and free of preemptive rights.
There are no outstanding options, warrants or rights to purchase or acquire from
DeKalb any securities of DeKalb, and there are no contracts, commitments,
agreements, understandings, arrangements or restrictions to which DeKalb is a
party or by which it is bound relating to any shares of capital stock or other
securities of DeKalb whether or not outstanding.
4.6 TITLE TO PROPERTIES; ENCUMBRANCES. Except as set forth on Schedule
4.6, DeKalb has good, valid and marketable title to all properties and assets it
purports to own, real, personal and mixed, tangible and intangible (except for
accounts collected or disposed of since the date hereof in the ordinary course
of business and consistent with past practice), subject to no mortgage, pledge,
lien, security interest, conditional sale agreement, encumbrance or charge of
any kind, except liens for current taxes not yet due.
4.7 NO UNDISCLOSED LIABILITY. Except as set forth on Schedule 4.7, DeKalb
does not have any liabilities or obligations of any nature, whether absolute,
accrued, contingent or otherwise and whether due or to become due (including,
without limitation, liabilities for Taxes (as defined
5
herein) and interest, penalties and other charges payable with respect thereto).
The reserves reflected in DeKalb's internally generated financial statements as
of and for the month ended September 30, 2004 are adequate, appropriate and
reasonable in accordance with accounting principles generally accepted in the
United States ("GAAP") applied on a consistent basis.
4.8 COMPLIANCE WITH APPLICABLE LAW. DeKalb has in the past duly complied
and is presently duly complying, in the conduct of its business and the
ownership of its assets with all applicable laws, whether statutory or
otherwise, rules, regulations, orders, ordinances, judgments and decrees of all
governmental authorities (federal, state, local or otherwise) (collectively,
"Laws"). DeKalb has not received any notice of, or notice of any investigation
of, a possible violation of any applicable Laws, or any other Law or requirement
relating to or affecting the operations or properties of DeKalb.
4.9 LITIGATION. Except as set forth in Schedule 4.9, as of the date
hereof, there are no claims, actions, suits, proceedings or investigations
pending or, to the knowledge of DeKalb, threatened by or against, or otherwise
affecting DeKalb at law or in equity or before or by any federal, state,
municipal or other governmental department, commission, board, agency,
instrumentality or authority, the result of which could reasonably be expected
to have a Material Adverse Effect on DeKalb.
4.10 CONTRACTS AND COMMITMENTS.
(a) Except as set forth in Schedule 4.10, DeKalb has no contracts,
commitments, arrangements or understandings which may involve the expenditure or
receipt by DeKalb after the Closing of more than $25,000 for any individual
contract, commitment, arrangement or understanding or which was not entered into
in the ordinary course of business ("Material Contracts"). Except for required
consents per Schedule 4.4, the legal enforceability after the Closing of the
rights of DeKalb under any of its Material Contracts will not be affected in any
manner by the execution and delivery of this Agreement or the consummation of
the transactions contemplated hereby.
(b) To the knowledge of DeKalb, all of the Material Contracts to
which DeKalb is a party or by which it is bound are in full force and effect,
are valid and enforceable in accordance with their terms, and no condition
exists or event has occurred which, with notice or lapse of time or both, would
constitute a default or a basis for force majeure or other claim of excusable
delay or non-performance thereunder by DeKalb, or to DeKalb's knowledge, the
other parties thereto.
4.11 BROKERAGE FEES. Except as set forth on Schedule 4.11, DeKalb has not
done anything to cause or incur any liability or obligation for investment
banking, brokerage, finders or agent's fees, commissions, expenses or charges in
connection with the negotiation, preparation, execution or performance of this
Agreement or the consummation of the transactions contemplated hereby and DeKalb
does not know of any claim by anyone for such a commission or fee.
4.12 CORPORATE RECORDS. DeKalb has delivered, provided to, or made
available for inspection by, Parent for its review true, complete and correct
copies of the following items, as amended and presently in effect, for DeKalb:
(a) Charter, (b) Bylaws, (c) minute books, and (d) stock registration books The
stock registration books are complete and accurate and contain a complete record
of all transactions in DeKalb's capital stock from the date of its incorporation
to the date hereof.
4.13 FULL DISCLOSURE. Neither this Agreement, nor any Schedule, exhibit,
list, certificate or other instrument and document furnished or to be furnished
by DeKalb to Parent or the Bank
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pursuant to this Agreement, contains any untrue statement of a material fact or
omits to state any material fact required to be stated herein or therein or
necessary to make the statements and information contained herein or therein not
misleading. DeKalb has not withheld from Parent disclosure of any event,
condition or fact which DeKalb knows is likely to have, in DeKalb's reasonable
judgment, a Material Adverse Effect on the assets, prospects or condition
(financial or otherwise) of DeKalb.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES BY PARENT AND THE BANK
Parent and the Bank hereby represent and warrant to DeKalb as follows:
5.1 ORGANIZATION AND GOOD STANDING. Parent is a bank holding company duly
organized, validly existing and in good standing under the laws of the State of
Tennessee and has full corporate power and authority to enter into this
Agreement and to carry out the transactions contemplated hereby. The Bank is a
state chartered bank incorporated under the laws of the State of Tennessee and
has full corporate power and authority to enter into this Agreement and to carry
out the transactions contemplated hereby.
5.2 AUTHORIZATION. The Boards of Directors of Parent and the Bank have
taken all action required by law, their respective Charters, Bylaws and
otherwise to authorize the execution and delivery by Parent and the Bank of this
Agreement and the consummation by Parent of the transactions contemplated
hereby.
5.3 VALID AND BINDING AGREEMENT. This Agreement constitutes a valid and
binding agreement of Parent and the Bank, enforceable against Parent and the
Bank in accordance with its terms subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar laws of general
applicability relating to or affecting creditors' rights and as to general
equity principles.
5.4 NO VIOLATION. The execution and delivery of this Agreement by Parent
and the Bank does not, and the consummation of the transactions contemplated
hereby will not, (a) violate any provision, or result in the creation of any
lien or security interest under, any agreement, indenture, instrument, lease,
security agreement, mortgage or lien to which Parent or the Bank is a party or
by which either is bound; (b) violate any provision of Parent's or the Bank's
Charter or Bylaws; (c) violate any order, arbitration award, judgment, writ,
injunction, decree, statute, rule or regulation applicable to the Bank or
Parent; or (d) violate any other contractual or legal obligation or restriction
to which Parent or the Bank is subject.
5.5 BROKERAGE FEES. Except as set forth on Schedule 5.5, neither Parent
nor the Bank has done anything to cause or incur any liability for investment
banking, brokerage, finders or agent's fees, commissions, expenses or charges in
connection with the negotiation, preparation, execution and performance of this
Agreement or the consummation of the transactions contemplated hereby, and
neither Parent nor the Bank knows of any claim by anyone for such a commission
or fee.
5.6 PARENT COMMON STOCK. Parent Common Stock when issued and delivered to
the DeKalb shareholders at Closing in accordance with the provisions of this
Agreement will be (i) duly authorized, validly issued shares of Common Stock of
Parent, fully paid and non-assessable, (ii) registered pursuant to an effective
Registration Statement, (iii) registered or exempt from registration under
applicable state securities or "Blue Sky" laws, and (iv) eligible for sale under
Rule 145 of the Securities Act, subject to the qualifications and limitations
set forth in Rule 145 and the DeKalb shareholders' compliance with the
applicable provisions thereof or under the Registration Statement
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and subject to the Securities and Exchange Commission's powers generally to
issue a stop order with respect to the Registration Statement.
5.7 CAPITALIZATION. The authorized capital stock of Parent consists of
10,000,000 shares of common stock, $2.00 par value per share, of which 4,430,591
shares were issued and outstanding on September 30, 2004. All of the shares of
Parent Common Stock to be issued to the DeKalb shareholders in accordance
herewith will be offered, issued, sold and delivered by Parent in compliance
with all applicable state and federal laws concerning the issuance of
securities, and none of such shares will be issued in violation of the
preemptive rights of any shareholder.
5.8 FINANCIAL REPORTS AND SECURITIES DOCUMENTS. Parent's Annual Report on
Form 10-K for the year ended December 31, 2003 and all other reports,
registration statements, definitive proxy statements or information statements
filed or to be filed by it subsequent to December 31, 2003 under the Securities
Act, or under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act in the form
filed or to be filed (collectively, Parent's "Securities Documents") with the
SEC, as of the date filed or to be filed, (A) complied or will comply in all
material respects as to form with the applicable requirements under the
Securities Act or the Exchange Act, as the case may be and (B) did not and will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that information as of a later date shall be deemed to modify information
as of an earlier date; and each of the consolidated balance sheets contained in
or incorporated by reference into any such Securities Document (including the
related notes and schedules thereto) fairly presents, or will fairly present,
the consolidated financial position of Parent and its subsidiaries as of its
date, and each of the consolidated statements of income and changes in
stockholders' equity and cash flows or equivalent statements in such Securities
Documents (including any related notes and schedules thereto) fairly presents,
or will fairly present, the consolidated results of operations, changes in
stockholders' equity and cash flows, as the case may be, of Parent and its
subsidiaries for the periods to which they relate, in each case in accordance
with GAAP consistently applied during the periods involved, except in each case
as may be noted therein.
5.9 FULL DISCLOSURE. Neither this Agreement, nor any Schedule, exhibit,
list, certificate or other instrument and document furnished or to be furnished
by Parent or the Bank to DeKalb contains any untrue statement of a material fact
or omits to state any material fact required to be stated herein or therein or
necessary to make the statements and information contained herein or therein not
misleading. Neither Parent nor the Bank has withheld from DeKalb disclosure of
any event, condition or fact which Parent or the Bank knows is likely to have,
in Parent's reasonable judgment, a Material Adverse Effect on the assets,
prospects or condition (financial or otherwise) of Parent or the Bank.
ARTICLE 6
COVENANTS AND AGREEMENTS OF DEKALB
DeKalb agrees that from the date hereof until the Closing, and thereafter
if so specified, it will use its best efforts to operate generally in the
ordinary course consistent with past practices and, without limiting the
foregoing, to fulfill the following covenants and agreements, unless otherwise
consented to by Parent in writing:
6.1 CONDUCT OF BUSINESS PENDING THE CLOSING.
(a) DeKalb will use its commercially reasonable efforts to maintain,
preserve, renew and keep in full force and effect the existence, rights and
franchises of DeKalb, to preserve the
8
business organization of DeKalb intact, to keep available to Parent DeKalb's
officers and employees, and to preserve for Parent the present relationships of
DeKalb with its customers and others having business relationships with it.
(b) DeKalb will not intentionally do or omit to do any act, which
may cause a material breach of any contract, commitment or obligation of DeKalb.
(c) DeKalb will duly comply in all material respects with all laws
applicable to it and its business and operations and all laws, compliance with
which is required for the valid consummation of the transactions contemplated by
this Agreement.
(d) Except as set forth on Schedule 6.1, DeKalb will not (i) grant
any increase in the wages or salary of any officer, employee or agent of DeKalb,
except normal wage or salary increases for employees and commissions paid in the
ordinary course of business and consistent with past practice; (ii) except
pursuant to existing compensation arrangements, by means of any bonus or
pursuant to any plan or arrangement or otherwise, increase by any amount or to
any extent the benefits or compensation of any such officer, employee or agent;
(iii) enter into any employment agreement, sales agency or other contract or
arrangement with respect to the performance of personal services which is not
terminable by it without liability on not more than 30 days notice; (iv) enter
into or extend any labor contract with any hourly-paid employees or any union;
or (v) agree to take any such action.
(e) Except in the ordinary course of business and consistent with
past practice, DeKalb will not terminate or modify in any material respect any
lease, license, permit, contract or other agreement to which it is a party.
(f) DeKalb will not mortgage, pledge or subject to lien or any other
encumbrance, any of its assets.
(g) Except as set forth on Schedule 6.1, DeKalb will not declare,
pay or make or set aside for payment or making, any dividend or other
distribution in respect of its capital stock or other securities, or directly or
indirectly redeem, purchase or otherwise acquire any of its capital stock or
other securities, except in each case in the ordinary courses of business
consistent with past practice.
(h) Except as set forth on Schedule 6.1, DeKalb will not incur any
additional indebtedness except in the ordinary course of business.
(i) Make, renew or otherwise modify any Loan other than in the
ordinary course of business consistent with past practice.
(j) Enter into any new material line of business; change its
material lending, investment, underwriting, risk and asset liability management
and other material banking and operating policies, except as required by
applicable law, regulation or policies imposed by any federal, state or local
court, administrative agency or commission or other governmental authority or
instrumentality; or file any application or make any contract with respect to
branching or site location or branching or site relocation.
(k) DeKalb will not enter into any transaction outside the ordinary
course of business.
9
(l) DeKalb will not enter into any agreement to do any of the
foregoing.
6.2 ACCESS; FURTHER ASSURANCES.
(a) After the execution of this Agreement and continuing until the
Closing, DeKalb shall permit Parent and its counsel, accountants, engineers and
other representatives reasonable access upon reasonable prior notice during
normal business hours to all of the directors, officers, facilities, properties,
books, contracts, commitments and records of or relating to DeKalb and will
furnish Parent and its representatives during such period with all such
information concerning DeKalb's affairs and such copies of such documents
relating thereto, as Parent or its representatives may reasonably request.
(b) At any time and from time to time after the Closing, at Parent's
request and expense and without further consideration, DeKalb will execute and
deliver such other instruments of sale, transfer, conveyance, assignment, and
delivery and confirmation and take such action as may be reasonably required in
order more effectively to transfer, convey and assign to Parent and to place
Parent in possession and control of, and to confirm Parent's title to, the
DeKalb Shares.
6.3 SCHEDULES. DeKalb shall have the continuing obligation to supplement
or amend promptly the Schedules being delivered pursuant to this Agreement with
respect to any matter hereafter arising or discovered which, if existing or
known at the date of this Agreement, would have been required to be set forth or
described in these Schedules, and any such amended Schedule shall be deemed
incorporated herein.
6.4 REGULATORY FILINGS. Each of Parent, the Bank and DeKalb shall
cooperate and use their respective reasonable best efforts to prepare all
documentation, to effect all filings and to obtain all permits, consents,
approvals and authorizations of all third parties and governmental authorities
necessary to consummate the Merger; and any initial filings with governmental
authorities shall be made by Parent as soon as reasonably practicable after the
execution hereof. Each of Parent, the Bank and DeKalb shall have the right to
review in advance, and to the extent practicable each shall consult with the
other, in each case subject to applicable laws relating to the exchange of
information, with respect to all written information submitted to any third
party or any governmental authority in connection with the Merger. In exercising
the foregoing right, each of such parties agrees to act reasonably and as
promptly as practicable. Each party hereto agrees that it shall consult with the
other parties hereto with respect to the obtaining of all permits, consents,
approvals, waivers and authorizations of all third parties and governmental
authorities necessary or advisable to consummate the Merger, and each party
shall keep the other parties apprised of the status of material matters relating
to completion of the Merger. Each party agrees, upon request, to furnish the
other parties with all information concerning itself, its subsidiaries,
directors, officers and stockholders and such other matters as may be reasonably
necessary or advisable in connection with any filing, notice or application made
by or on behalf of such other parties or any of their subsidiaries to any third
party or governmental authority.
6.5 CONSENTS AND APPROVALS. DeKalb shall, in a timely, accurate and
complete manner, take all necessary corporate and other action and use all
reasonable efforts to obtain all consents, approvals, permits, licenses and
amendments of agreements required of DeKalb to carry out the transactions
contemplated in this Agreement and shall provide to Parent such information as
Parent may reasonably require to make such filings and prepare such applications
as may be required for the consummation by Parent of the transactions
contemplated by this Agreement.
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ARTICLE 7
COVENANTS AND AGREEMENTS OF PARENT AND THE BANK
7.1 FURTHER ASSURANCES. At any time and from time to time after the
Closing, at DeKalb's request and expense and without further consideration,
Parent and the Bank will execute and deliver such other instruments of sale,
transfer, conveyance, assignment, and delivery and confirmation and take such
action as may be reasonably required in order more effectively to effect or
confirm the transactions hereby contemplated and to carry out the purposes of
this Agreement.
ARTICLE 8
CONDITIONS TO PARENT'S AND THE BANK'S OBLIGATIONS
All obligations of Parent and the Bank hereunder are subject to the
fulfillment, prior to or at the Closing, of each of the following conditions:
8.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
made by DeKalb in this Agreement and the statements contained in the Schedules
attached hereto or in any instrument, list, certificate or writing delivered by
DeKalb, pursuant to this Agreement shall be true in all material respects (other
than representations and warranties qualified by materiality which shall remain
as is) when made and, other than representations made as of a specified date
(other than the date of this Agreement), at and as of the time of the Closing as
though such representations and warranties were made at and as of the Closing.
8.2 PERFORMANCE BY THE DEKALB. DeKalb shall have performed and complied
with all covenants, agreements, obligations and conditions required by this
Agreement to be so complied with or performed.
8.3 OFFICER'S CERTIFICATE. DeKalb shall have delivered to Parent a
certificate, dated the Closing Date, signed by DeKalb's President certifying as
to the fulfillment of the conditions specified in Sections 8.1 and 8.2 hereof.
8.4 SHAREHOLDER APPROVAL. This Agreement and the Merger shall have been
duly approved by the requisite vote of the holders of outstanding shares of
DeKalb Common Stock.
8.5 REGULATORY APPROVALS. All regulatory approvals required to consummate
the Merger shall have been obtained and shall remain in full force and effect
and all statutory waiting periods in respect thereof shall have expired and no
such approvals shall contain any conditions, restrictions or requirements which
the Parent Board reasonably determines in good faith would, individually or in
the aggregate, materially reduce the benefits of the Merger to such a degree
that Parent would not have entered into this Agreement had such conditions,
restrictions or requirements been known at the date hereof.
8.6 NO INJUNCTION. No governmental authority of competent jurisdiction
shall have enacted, issued, promulgated, enforced or entered any statute, rule,
regulation, judgment, decree, injunction or other order (whether temporary,
preliminary or permanent) which is in effect and prohibits consummation of the
Merger.
8.7 CONSENTS AND APPROVALS. Parent shall have received from DeKalb
executed counterparts of the consents listed on Schedule 4.4 and all other
consents required in connection with the consummation of the transaction
contemplated hereby, which consents shall be in form and substance reasonably
satisfactory to Parent.
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8.8 LITIGATION. On the date of the Closing, except as set forth on
Schedule 4.9, DeKalb shall not be a party to, nor will there otherwise be
pending or threatened, any judicial, administrative, or other action, proceeding
or investigation which, if adversely determined might, in the reasonable opinion
of Parent, have a Material Adverse Effect on DeKalb; and there shall be no
lawsuits pending against DeKalb, the Bank or Parent seeking to enjoin, prohibit,
restrain or otherwise prevent the transactions contemplated hereby.
8.9 NO MATERIAL ADVERSE CHANGE; DUE DILIGENCE REVIEW. Since September 30,
2004, there shall not have been any circumstance, development, state of fact or
matter which has, or would reasonably be expected to have, a Material Adverse
Effect on DeKalb.
8.10 FAIRNESS OPINION. The DeKalb Board of Directors shall have received
the written opinion of PBS, dated prior to the mailing of the proxy materials to
the DeKalb Shareholders, to the effect that the consideration to be received by
the DeKalb Shareholders is fair to the holders of DeKalb Common Stock from a
financial point of view.
ARTICLE 9
CONDITIONS TO THE DEKALB'S OBLIGATIONS
All obligations of DeKalb under this Agreement are subject to the
fulfillment, prior to or at the Closing, of each of the following conditions:
9.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
made by Parent and the Bank in this Agreement and the statements contained in
any instrument, list, certificate, or writing delivered by Parent or the Bank
pursuant to this Agreement shall be true in all material respects (other than
representations and warranties qualified by materiality which shall remain as
is) when made and, other than representations made as of a specified date (other
than the date of this Agreement), at and as of the time of the Closing as though
such representations and warranties were made at and as of such date.
9.2 PERFORMANCE. Parent and the Bank shall have performed and complied
with all covenants, agreements, obligations and conditions required by this
Agreement to be so complied with or performed.
9.3 OFFICER'S CERTIFICATE. Parent and the Bank shall have delivered to
DeKalb a Certificate of Parent and the Bank, dated the Closing Date, signed by
the Chief Executive Officer of Parent and the Bank certifying as to the
fulfillment of the conditions specified in Sections 9.1 and 9.2 hereof.
9.4 NO INJUNCTION. No governmental authority of competent jurisdiction
shall have enacted, issued, promulgated, enforced or entered any statute, rule,
regulation, judgment, decree, injunction or other order (whether temporary,
preliminary or permanent) which is in effect and prohibits consummation of the
Merger.
9.5 ADJUSTMENTS TO BOOK VALUE. PBS shall have performed its review of the
book values of Parent's and DeKalb's Common Stock prior to the mailing of
DeKalb's proxy statement to its shareholders and made its determination as to
the adequacy and calculation methodologies of the Bank's and DeKalb's loan loss
reserves and allowance for doubtful accounts, among other items, by such date
and as a result thereof recommended any adjustments
12
to the book value of DeKalb's or Parent's Common Stock as contemplated by
Section 3.1 hereof, with all such recommended adjustments being acceptable to
the Board of Directors of DeKalb.
9.6 FAIRNESS OPINION. The DeKalb Board of Directors shall have received
the written opinion of PBS, dated prior to the mailing of the proxy materials to
the DeKalb Shareholders, to the effect that the consideration to be received by
the DeKalb Shareholders is fair to the holders of DeKalb Common Stock from a
financial point of view.
ARTICLE 10
TERMINATION OF AGREEMENT
This Agreement may be terminated at any time prior to the Closing:
(a) By mutual agreement of DeKalb and Parent.
(b) By Parent, if (i) there has been a material violation or breach
by DeKalb or of any of the agreements, representations or warranties contained
in this Agreement which has not been waived in writing; or (ii) if any of the
conditions set forth in Article 8 hereof have not been satisfied by the Closing
or have not been waived in writing by Parent.
(c) By DeKalb, if (i) there has been a material violation or breach
by Parent or the Bank of any of the agreements, representations or warranties
contained in this Agreement which has not been waived in writing; or (ii) if any
of the conditions set forth in Article 9 hereof have not been satisfied by the
Closing or have not been waived in writing by DeKalb.
(d) By Parent or DeKalb if the other makes an assignment for the
benefit of creditors, files a voluntary petition in bankruptcy or seeks or
consents to any reorganization or similar relief under any present or future
bankruptcy act or similar law, or is adjudicated a bankrupt or insolvent, or if
a third party commences any bankruptcy, insolvency, reorganization or similar
proceeding involving the other.
(e) By Parent on the one hand or DeKalb on the other hand, if their
Board of Directors so determines by a vote of a majority of the members of their
entire Board, in the event the approval of any governmental authority required
for consummation of the Merger and the other transactions contemplated by this
Agreement shall have been denied by final nonappealable action of such
governmental authority or an application therefor shall have been permanently
withdrawn at the request of a governmental authority.
(f) By either Parent on the one hand or DeKalb on the other hand, if
any approval of the shareholders of DeKalb contemplated by this Agreement shall
not have been obtained by reason of the failure to obtain the required vote at
the DeKalb's shareholder meeting at which the Merger is considered for approval.
(g) By DeKalb if, within five (5) days of its Board of Directors
being advised by PBS of its proposed adjustments to the book value of Parent's
or DeKalb's Common Stock as contemplated by Section 9.5 hereof, the DeKalb Board
of Directors determines, in its sole discretion, to terminate this Agreement.
(h) By Parent or DeKalb if the transactions contemplated by this
Agreement shall not have been consummated on or before April 30, 2005.
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ARTICLE 11
MISCELLANEOUS
11.1 SURVIVAL. No representations, warranties, agreements and covenants
contained in this Agreement shall survive the Effective Time (other than
agreements or covenants contained herein that by their express terms are to be
performed after the Effective Time) or the termination of this Agreement if this
Agreement is terminated prior to the Effective Time. Notwithstanding anything in
the foregoing to the contrary, no representations, warranties, agreements and
covenants contained in this Agreement shall be deemed to be terminated or
extinguished so as to deprive a party hereto or any of its affiliates of any
defense at law or in equity which otherwise would be available against the
claims of any Person, including without limitation any shareholder or former
shareholder.
11.2 EXPENSES. All fees and expenses incurred by DeKalb including without
limitation legal fees and expenses, in connection with this Agreement will be
borne by DeKalb; provided, however, that the Bank shall reimburse DeKalb for the
fees and expenses of PBS. All fees and expenses incurred by Parent and the Bank,
including without limitation, legal fees and expenses, in connection with this
Agreement will be borne by Parent or the Bank, as the case may be. Filing fees
payable by Parent or DeKalb in connection with any regulatory filing shall be
paid by Parent.
11.3 ASSIGNABILITY; PARTIES IN INTEREST.
(a) Parent may assign any or all of its rights hereunder to any
affiliate or any direct or indirect subsidiary of Parent, and Parent shall
advise DeKalb of any such assignment and shall designate such party as the
assignee and transferee of the securities purchased. Any such assignee shall
assume all of Parent's duties, obligations, representations and warranties and
undertakings hereunder, but the assignor shall remain liable thereunder.
(b) DeKalb may not assign, transfer or otherwise dispose of any of
its rights hereunder without the prior written consent of Parent.
(c) All the terms and provisions of this Agreement shall be binding
upon, shall inure to the benefit of and shall be enforceable by the respective
heirs, successors, assigns and legal or personal representatives of the parties
hereto.
11.4 ENTIRE AGREEMENT; AMENDMENTS. This Agreement, including the exhibits,
Schedules, lists and other documents and writings referred to herein or
delivered pursuant hereto, which form a part hereof, contains the entire
understanding of the parties with respect to its subject matter. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to its subject matter. This Agreement may be amended only by a written
instrument duly executed by all parties or their respective heirs, successors,
assigns or legal personal representatives. Any condition to a party's
obligations hereunder may be waived but only by a written instrument signed by
the party entitled to the benefits thereof. The failure or delay of any party at
any time or times to require performance of any provision or to exercise its
rights with respect to any provision hereof, shall in no manner operate as a
waiver of or affect such party's right at a later time to enforce the same.
11.5 HEADINGS. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretations of this Agreement.
14
11.6 SEVERABILITY. The invalidity of any term or terms of this Agreement
shall not affect any other term of this Agreement, which shall remain in full
force and effect.
11.7 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered or mailed (registered or certified mail, postage
prepaid, return receipt requested) as follows:
If to DeKalb:
DeKalb Community Bank
P. O. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Parent or the Bank:
▇▇▇▇▇▇ Bank Holding Company
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt.
11.8 GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Tennessee without regard to
its conflict of laws rules.
11.9 COUNTERPARTS. This Agreement may be executed simultaneously in one or
more counterparts, with the same effect as if the signatories executing the
several counterparts had executed one counterpart, provided, however, that the
several executed counterparts shall together have been signed by all the parties
hereto. All such executed counterparts shall together constitute one and the
same instrument.
[Signature page to follow.]
15
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered on
the date first above written.
PARENT:
▇▇▇▇▇▇ BANK HOLDING COMPANY
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Title: Chief Executive Officer
-----------------------------
THE BANK:
▇▇▇▇▇▇ BANK AND TRUST
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Title: Chief Executive Officer
-----------------------------
DEKALB:
DEKALB COMMUNITY BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Title: President
-----------------------------
16
EXHIBIT A
ARTICLES OF MERGER
In accordance with the provisions of Sections ▇▇-▇▇-▇▇▇ of the Tennessee
Business Corporation Act (the "Act"), ▇▇▇▇▇▇ Bank and Trust, a Tennessee
corporation ("▇▇▇▇▇▇ Bank"), and DeKalb Community Bank, a Tennessee corporation
("DeKalb"), collectively referred to herein as the "Merging Entities," hereby
adopt the following Articles of Merger for the purpose of merging DeKalb with
and into ▇▇▇▇▇▇ Bank and Trust (the "Merger"):
1. The Agreement and Plan of Merger (the "Plan of Merger") that has been
approved by each of the Merging Entities in the manner prescribed by the Act is
set forth in Appendix A attached hereto and is incorporated for all purposes
into these Articles of Merger.
2. Approval of the Plan of Merger by the shareholders of both of the
Merging Entities is required by the Act. The Plan of Merger was approved and
adopted by the affirmative vote of the required percentage of all of the votes
entitled to be cast by the shareholders of DeKalb on ________________, 2005 and
by the sole shareholder of ▇▇▇▇▇▇ Bank and Trust on October 25, 2004.
3. The Merger shall be effective upon the filing of these Articles of
Merger with the Secretary of State of the state of Tennessee.
[The remainder of this page intentionally left blank.]
IN WITNESS WHEREOF, the undersigned have executed these Articles of Merger
effective as of the ____ day of ______________, 2005.
▇▇▇▇▇▇ BANK AND TRUST
a Tennessee corporation
By:_________________________________
Name:_______________________________
Title:______________________________
DEKALB COMMUNITY BANK
a Tennessee corporation
By:_________________________________
Name:_______________________________
Title:______________________________
APPENDIX A
