EXHIBIT 2
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
BETWEEN
WHITNEY HOLDING CORPORATION
WHITNEY NATIONAL BANK
AND
First National Bancshares, Inc.
1st National Bank & Trust
JULY 27, 2005
TABLE OF CONTENTS
Preamble .................................................................................................. 1
Section 1. The Mergers and Closing........................................................................... 1
1.01. Mergers........................................................................................... 1
1.02. The Closing....................................................................................... 2
1.03. The Effective Date and Time....................................................................... 3
1.04. Surviving Corporations............................................................................ 3
1.05. Tax Consequences.................................................................................. 3
1.06. Taking of Necessary Action; Further Action........................................................ 3
Section 2. Conversion of Stock in the Company Merger......................................................... 4
2.01. Conversion of Shares.............................................................................. 4
2.02. Exchange of Certificates; Appraisal Shares........................................................ 7
2.03. Closing Transfer Books............................................................................ 8
Section 3. Representations and Warranties of Holding and the Bank............................................ 9
3.01. Consolidated Group; Organization; Qualification................................................... 9
3.02. Capital Stock; Other Interests.................................................................... 9
3.03. Corporate Authorization; No Conflicts............................................................. 10
3.04. Holding Financial Statements, Reports and Proxy Statements........................................ 10
3.05. Loan and Investment Portfolios.................................................................... 12
3.06. Adequacy of Allowances for Losses................................................................. 13
3.07. Absence of Certain Changes or Events.............................................................. 13
3.08. Taxes............................................................................................. 15
3.09. Title to Assets................................................................................... 15
3.10. Legal Matters..................................................................................... 16
3.11. Employee Benefit Plans............................................................................ 17
3.12. Insurance Policies................................................................................ 19
3.13. Agreements........................................................................................ 19
3.14. Licenses, Franchises and Governmental Authorizations.............................................. 20
3.15. Corporate Documents............................................................................... 20
3.16. Certain Transactions.............................................................................. 21
3.17. Broker's or Finder's Fees......................................................................... 21
3.18. Environmental Matters ............................................................................ 21
3.19. Intellectual Property............................................................................. 22
3.20. Community Reinvestment Act........................................................................ 23
3.21. Privacy of Customer Information................................................................... 23
3.22. Opinion of Financial Advisor...................................................................... 23
3.23. Technology Systems................................................................................ 24
3.24 State Takeover Laws.................................................................................. 24
3.25 Certain Actions...................................................................................... 24
3.26. Accuracy of Statements............................................................................ 24
Section 4. Representations and Warranties of Whitney and WNB................................................. 25
4.01. Consolidated Group; Organization; Qualification................................................... 25
4.02. Capital Stock..................................................................................... 25
4.03. Corporate Authorization; No Conflicts............................................................. 25
4.04. Whitney Financial Statements; Reports and Proxy Statements........................................ 26
4.05. Legality of Whitney Securities.................................................................... 26
4.06. SEC Reports....................................................................................... 26
4.07. Absence of Certain Changes or Events.............................................................. 27
4.08. Legal Matters..................................................................................... 27
4.09. Community Reinvestment Act........................................................................ 27
4.10. Accuracy of Statements............................................................................ 27
Section 5. Covenants and Conduct of Parties Prior to the Effective Date...................................... 28
5.01. Investigations; Planning.......................................................................... 28
5.02. Delivery of Schedules of Exceptions; Due Diligence................................................ 28
5.03. Cooperation and Commercially Reasonable Efforts................................................... 29
5.04. Information for, and Preparation of, Registration Statement and Proxy Statement................... 29
5.05. Approval of Bank Merger Agreement................................................................. 30
5.06. Press Releases; Shareholder Communications........................................................ 30
5.07. Preservation of Business.......................................................................... 30
5.08. Conduct of Business in the Ordinary Course........................................................ 30
5.09. Additional Information............................................................................ 32
5.10. Holding Shareholder Approval...................................................................... 32
5.11. Affiliate Agreements.............................................................................. 33
5.12. Loan Policy....................................................................................... 33
5.13. No Solicitations.................................................................................. 33
5.14. Operating Functions............................................................................... 34
5.15. Whitney Registration Statement.................................................................... 34
5.16. Application to Regulatory Authorities............................................................. 35
5.17. Revenue Ruling.................................................................................... 35
5.18. Bond for Lost Certificates........................................................................ 36
5.19. Withholding....................................................................................... 36
5.20. Appraisal Rights.................................................................................. 36
5.21. Nasdaq Stock Market............................................................................... 36
5.22. Continuing Indemnity; Insurance................................................................... 36
5.23. Employees and Certain Other Matters............................................................... 37
5.24. Whitney Conduct of Business....................................................................... 39
5.25. Holding Stock Options............................................................................. 39
Section 6. Conditions of Closing............................................................................. 39
6.01. Conditions of All Parties......................................................................... 39
6.02. Additional Conditions of Whitney.................................................................. 40
6.03. Additional Conditions of Holding.................................................................. 41
6.04. Waiver of Conditions.............................................................................. 42
Section 7. Termination....................................................................................... 42
7.01. Termination....................................................................................... 42
7.02. Effect of Termination............................................................................. 45
7.03. Termination Payment............................................................................... 46
Section 8. Miscellaneous..................................................................................... 46
8.01. Notices........................................................................................... 46
8.02. Waiver............................................................................................ 47
8.03. Expenses.......................................................................................... 47
8.04. Headings.......................................................................................... 47
8.05. Annexes, Exhibits and Schedules................................................................... 47
8.06. Integrated Agreement.............................................................................. 47
8.07. Choice of Law..................................................................................... 48
8.08. Parties in Interest............................................................................... 48
8.09. Amendment......................................................................................... 48
8.10. Counterparts...................................................................................... 48
8.11. Non-Survival of Representations and Warranties; Covenants......................................... 48
8.12. Attorneys' Fees................................................................................... 48
8.13. Waiver of Jury Trial.............................................................................. 48
LIST OF EXHIBITS
Exhibit 1 Form of Support Agreement for Non-Officer Directors (FBMT)
Exhibit 1.A Form of Support Agreement for Officer-Directors (FBMT)
Exhibit 1.01(b) Form of Bank Merger Agreement
Exhibit 1.02(c) Form of FL Articles of Merger
Exhibit 5.11(a) Form of Affiliate Agreement
Exhibit 5.11(b) Form of Shareholder's Commitment Letter
Exhibit 6.02(c)(i) Form of Employment Agreement Termination and Business
Protection Agreement (DuPont and Fausset)
Exhibit 6.02(c)(ii) Form of Employment Agreement Termination and Business
Protection Agreement (Xxxxxxx)
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Agreement") is made July 27, 2005
between Whitney Holding Corporation ("Whitney"), a Louisiana corporation, and
Whitney National Bank ("WNB"), a national banking association, on the one hand,
and First National Bancshares, Inc. ("Holding"), a Florida corporation, and 1st
National Bank & Trust (the "Bank"), a national banking association, on the other
hand. Whitney and Holding shall be hereinafter collectively referred to as the
"Constituent Corporations."
PREAMBLE
WHEREAS, the boards of directors of Whitney and Holding have determined
that it is desirable and in the best interests of their respective corporations
and shareholders that Holding merge into Whitney (the "Company Merger") on the
terms and subject to the conditions set forth in this Agreement. The boards of
directors of WNB and the Bank have each determined that it is desirable and in
the best interests of each such institution and its respective sole shareholder
that the Bank merge into WNB (the "Bank Merger") on the terms and subject to the
conditions set forth in this Agreement and the Bank Merger Agreement (as
hereinafter defined). The Company Merger and the Bank Merger shall be
hereinafter collectively referred to as the "Mergers."
WHEREAS, concurrently with the execution of this Agreement, each director
of Holding has entered into and delivered to Whitney an agreement, in
substantially the form attached hereto as Exhibit 1 or Exhibit 1.A, as
applicable, pursuant to which such director has agreed (i) to vote in favor of
this Agreement and the Company Merger all shares registered in their name
individually or as to which they otherwise have sole voting power, (ii) not to
transfer such shares, (iii) to use their best efforts, subject to any fiduciary
duty they may have, to cause all shares as to which they share voting power with
others to be voted in favor of this Agreement and the Company Merger, and (iv)
with respect to directors who are not also officers of Holding only, not to
compete with, or solicit customers, clients or employees from, Whitney, WNB,
Holding or the Bank following completion of the Company Merger.
NOW THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
SECTION 1. THE MERGERS AND CLOSING
1.01. MERGERS
(a) Subject to the terms and conditions of this Agreement, at the
Effective Time (as hereinafter defined), Holding shall be merged with and into
Whitney, which will be the surviving corporation, in accordance with the
Louisiana Business Corporation Law (the "LBCL") and the Florida Business
Corporation Act (the "FBCA"), and the separate corporate existence of Holding
shall thereupon cease.
(b) Prior to the Effective Date, unless Whitney elects to delay the Bank
Merger in accordance with the proviso contained in Section 1.02 hereof, the
Boards of Directors of WNB and the Bank will execute a merger agreement in
substantially the same form as the agreement annexed hereto as Exhibit 1.01(b)
(the "Bank Merger Agreement"), pursuant to which, on the terms set forth herein
and subject to the conditions set forth in Section 6 hereof, the Bank will merge
with and into WNB, which shall be the surviving bank.
(c) The Company Merger shall have the effects set forth in the LBCL and
the FBCA, as applicable. Without limiting the generality of the foregoing, and
subject thereto, at the Effective Time (as hereinafter defined), all the
property and assets, rights, privileges and all debts, liabilities and
obligations of Holding will become the property and assets, rights, privileges,
debts, liabilities and obligations of Whitney as the surviving corporation in
the Company Merger. The Bank Merger shall have the effects set forth in the
national banking laws. Without limiting the generality of the foregoing, and
subject thereto, at the effective time of the Bank Merger, all the property and
assets, rights, privileges and all debts, liabilities and obligations of the
Bank will become the property and assets, rights, privileges, debts, liabilities
and obligations of WNB as the surviving association in the Bank Merger.
1.02. THE CLOSING
The "Closing" of the transactions contemplated hereby will take place at
the offices of Xxxxxx & Bird LLP, One Atlantic Center, 0000 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxx 00000 (or such other place to which the parties may
agree), at 10:00 a.m., Atlanta, Georgia time, on a mutually agreeable date as
soon as practicable following satisfaction of the conditions set forth in
subparagraphs (a), (b) and (d) of Section 6.01 hereof; provided, however, that
if the parties are unable to agree on a date, the Closing shall occur on the
second Friday following satisfaction of the conditions set forth in
subparagraphs (a), (b) and (d) of Section 6.01 hereof (assuming satisfaction of
the other conditions) that is not the last business day of a calendar month or
during the last calendar month of any Whitney fiscal quarter. The date on which
the Closing occurs is herein called the "Closing Date." If all conditions set
forth in Section 6 hereof are satisfied or waived by the party entitled to grant
such waiver, at the Closing (a) the Constituent Corporations shall each provide
to the other such proof of satisfaction of the conditions set forth in Section 6
as the party whose obligations are conditioned upon such satisfaction may
reasonably request, (b) the certificates, letters, opinions and other items
required by Section 6 shall be delivered, (c) Holding and Whitney shall, as
applicable, execute a certificate of merger complying with the requirements of
Section 112(F) of the LBCL (the "LA Certificate of Merger") and the appropriate
officers of Holding and Whitney shall execute, deliver and acknowledge articles
of merger in substantially the form set forth in Exhibit 1.02(c) hereof (the "FL
Articles of Merger") in accordance with the FBCA, (d) the appropriate officers
of the parties shall execute, deliver and acknowledge the Bank Merger Agreement
and (e) the parties shall take such further action as is required to effect the
Mergers and to otherwise consummate the transactions contemplated by this
Agreement and the Bank Merger Agreement; provided, however, that Whitney may, in
its sole discretion, delay execution, delivery, acknowledgment and filing of the
Bank Merger Agreement and the consummation of the Bank Merger until such time as
it deems appropriate. If Whitney elects to defer the execution of the Bank
Merger Agreement or the consummation of the Bank Merger until after the Closing
Date, on and as of the Closing Date Holding shall take all necessary steps to
reconstitute the Board of Directors of Bank with such members as Whitney shall
direct. If on any date established for the Closing all conditions in Section 6
hereof have not been satisfied or waived by the party entitled to grant such
waiver, then such party, on one or more occasions, may declare a delay of the
Closing of such duration, not exceeding ten business days, as the declaring
party shall select, but no such
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delay shall extend beyond the date set forth in subparagraph (c) of Section
7.01, and no such delay shall interfere with the right of any party to terminate
this Agreement pursuant to Section 7.
1.03. THE EFFECTIVE DATE AND TIME
Immediately following (or concurrently with) the Closing, the LA
Certificate of Merger shall be filed with and recorded by the Secretary of State
of Louisiana and the FL Articles of Merger shall be filed with and recorded by
the Florida Department of State. The Company Merger will be effective on the
date (the "Effective Date") and time (the "Effective Time") specified in the LA
Certificate of Merger. Subject to Section 1.02, the Bank Merger Agreement will
be filed with and recorded by the Office of the Comptroller of the Currency (the
"OCC") and the Bank Merger shall be effective at the date and time specified in
the Bank Merger Agreement.
1.04. SURVIVING CORPORATIONS
(a) Company Merger. The Articles of Incorporation and By-Laws of Whitney,
as in effect immediately prior to the Effective Time, shall remain unchanged by
reason of the Company Merger and shall be the Articles of Incorporation and
By-Laws of Whitney as the surviving corporation in the Company Merger. The
directors and officers of Whitney at the Effective Time shall be the directors
and officers of Whitney as the surviving corporation in the Company Merger until
the earlier of their resignation or removal or until their respective successors
are duly elected and qualified, as the case may be. Each share of Whitney common
stock, no par value ("Whitney Common Stock"), issued and outstanding immediately
prior to the Effective Time shall remain issued and outstanding from and after
the Effective Time. At the Effective Time, the shares of Holding Common Stock
(as hereinafter defined in Section 2.01) shall be converted as set forth in
Section 2.
(b) Bank Merger. The Articles of Association and Bylaws of WNB, as in
effect immediately prior to the effective time of the Bank Merger, shall remain
unchanged by reason of the Bank Merger and shall be the Articles of Association
and Bylaws of WNB as the surviving entity in the Bank Merger. The directors and
officers of WNB at the effective time of the Bank Merger shall be the directors
and officers of WNB as the surviving bank in the Bank Merger until the earlier
of their resignation or removal or until their respective successors are duly
elected and qualified, as the case may be. At the effective time of the Bank
Merger and by virtue thereof, (i) all shares of capital stock of the Bank shall
be canceled and (ii) the shares of capital stock of WNB as the surviving bank in
the Bank Merger, issued and outstanding immediately prior to such effective time
shall continue to be issued and outstanding, and no additional shares shall be
issued as a result of the Bank Merger.
1.05. TAX CONSEQUENCES
It is the intention of the parties hereto that the Mergers shall
constitute a reorganization within the meaning of Section 368(a) of the Internal
Revenue Code of 1986, as amended (the "Code"), and that this Agreement shall
constitute a "plan of reorganization" for purposes of Section 368 of the Code.
1.06. TAKING OF NECESSARY ACTION; FURTHER ACTION
If, at any time after the Effective Time, any further action is necessary
or desirable to carry out the purposes of this Agreement and to vest the
surviving corporation with full right, title and possession to all assets,
property, rights, privileges, powers and franchises of Holding, then the Bank,
Whitney and
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WNB shall cause their respective officers to take all such lawful and necessary
action, so long as such action is not inconsistent with this Agreement.
SECTION 2. CONVERSION OF STOCK IN THE COMPANY MERGER
2.01. CONVERSION OF SHARES
(a) All of the shares of Whitney Common Stock issued and outstanding
immediately prior to the Effective Time shall remain issued and outstanding
after the Effective Time and shall be unaffected by the Company Merger.
(b) At the Effective Time, by virtue of the Company Merger and without any
action on the part of the parties to this Agreement or the holder thereof, each
share of common stock, par value $0.10 per share, of Holding (the "Holding
Common Stock") that is issued and outstanding immediately prior to the Effective
Time (excluding any treasury shares, shares held by Holding or any of its
subsidiaries (other than in a fiduciary capacity), and shares of Holding Common
Stock as to which appraisal rights have been perfected and not withdrawn or
otherwise forfeited under Sections 607.1301-607.1333 of the Florida Statutes
("Appraisal Shares")) shall be converted into the right to receive:
(i) for each share of Holding Common Stock issued and outstanding
immediately prior to the Effective Time with respect to which an election
to receive cash has been effectively made and not revoked or lost pursuant
to Section 2.01(d) (a "Cash Election"), cash from Whitney in an amount
equal to the Per Share Amount (as hereinafter defined), less any
applicable withholding taxes (the "Cash Consideration") (collectively, the
"Cash Election Shares"); and
(ii) for each share of Holding Common Stock with respect to which an
election to receive Whitney Common Stock has been effectively made and not
revoked or lost pursuant to Section 2.01(d) (a "Stock Election"), the
number of shares of Whitney Common Stock that is equal to the Exchange
Ratio (as hereinafter defined) (the "Stock Consideration") (collectively,
the "Stock Election Shares").
As used in this Agreement, the following terms shall have the meanings set
forth below:
"Average Market Price" means the average of the closing per share
trading prices of Whitney Common Stock on the 20 trading days preceding
the fifth trading day immediately prior to the Effective Time (as reported
by The Wall Street Journal or, if not reported thereby, another
authoritative source as chosen by Whitney); provided, however, that if the
Average Market Price as calculated above is less than $28.29, the Average
Market Price for purposes of this Agreement shall be $28.29, and if the
Average Market Price as calculated above is greater than $38.29, the
Average Market Price for purposes of this Agreement shall be $38.29.
"Exchange Ratio" shall mean the quotient obtained (expressed to the
nearest thousandth) by dividing (x) the Per Share Amount by (y) the
Average Market Price; provided, that if Holding provides notice of
termination of this Agreement as provided in Section 7.01(h) and Whitney
elects to increase the Exchange Ratio as provided therein, the Exchange
Ratio shall be determined as set forth in Section 7.01(h).
"Per Share Amount" shall mean $34.64 less an amount equal to the
quotient obtained by
4
dividing (x) the sum of (A) the aggregate amount of any expenses incurred
by Holding and the Bank in connection with the Mergers in excess of the
Permitted Expenses (as defined in Section 6.02(b) of this Agreement) and
(B) the Pension Shortfall Amount (as defined in Section 5.23(b)), by (y)
the number of shares of Holding Common Stock issued and outstanding
immediately prior to the Effective Time (including the number of resulting
shares of Holding Common Stock pursuant to Section 2.02(i)(A)(x) hereof).
The Cash Consideration and the Stock Consideration are sometimes referred
to herein collectively as the "Merger Consideration."
(c) A shareholder of Holding may elect, subject to proration, as set forth
below, and the other terms and conditions hereof, to receive Whitney Common
Stock for all of his or her shares of Holding Common Stock, or cash in exchange
for all of his or her shares of Holding Common Stock, or a combination of 65%
Stock Consideration and 35% Cash Consideration. The aggregate amount of Cash
Consideration that shall be issued as a result of the Company Merger, together
with the cash amounts to be paid pursuant to Sections 2.01(g) and 2.02(d) of
this Agreement, shall not exceed 35% of the sum of the aggregate consideration
paid (excluding any amounts paid in connection with Sections 2.01(g) and
2.02(d)) in exchange for all shares of Holding Common Stock in the Company
Merger (the "Cash Component"). In the event that shareholders of Holding have
elected to receive aggregate Cash Consideration in excess of the Cash Component,
Whitney may, in its sole discretion, cause shareholders that have made Cash
Elections with respect to all of their shares of Holding Common Stock to receive
a combination of Stock Consideration and Cash Consideration such that the total
Cash Component does not exceed 35% of the Merger Consideration.
(d) Each holder of record of shares of Holding Common Stock as of the
record date set for the Holding shareholders' meeting called and convened to
approve this Agreement ("Holder") shall have the right, subject to the
limitations set forth in this Section 2, to submit an election in accordance
with the following procedures:
(i) Each Holder may specify in a request made in accordance with the
provisions of this Section 2.01(d) (herein called an "Election") whether
the Holder desires to receive, in exchange for such Holder's shares of
Holding Common Stock (x) 100% Stock Consideration, (y) 100% Cash
Consideration, or (z) 65% Stock Consideration and 35% Cash Consideration.
(ii) Whitney shall prepare a combined form of election and letter of
transmittal reasonably acceptable to Holding (the "Form of Election"),
which shall be mailed to the Holders so as to permit such Holders to
exercise their right to make an Election prior to the Election Deadline
(as hereinafter defined) and to transmit their Holding Certificates (as
hereinafter defined).
(iii) Whitney shall make the Form of Election initially available to
the Holders at the time that the Proxy Statement (as hereinafter defined)
is mailed to the Holders and shall use all reasonable efforts to make
available as promptly as possible a Form of Election to any shareholder of
Holding who requests such Form of Election following the initial mailing
of the Forms of Election and prior to the Election Deadline. In no event
shall the Form of Election be made initially available less than 20 days
prior to the Election Deadline.
(iv) Any Election shall have been made properly only if Whitney's
exchange agent,
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American Stock Transfer and Trust Company (the "Exchange Agent") shall
have received, by 5:00 p.m., Eastern time, on the date of the Election
Deadline, a Form of Election properly completed and signed and accompanied
by certificates representing shares of Holding Common Stock ("Holding
Certificates") to which such Form of Election relates or by an appropriate
customary guarantee of delivery of such certificates, as set forth in such
Form of Election, from a member of any registered national securities
exchange or a commercial bank or trust company in the United States;
provided, that such certificates are in fact delivered to the Exchange
Agent by the time required in such guarantee of delivery. Failure to
deliver shares of Holding Common Stock covered by such a guarantee of
delivery within the time set forth on such guarantee shall be deemed to
invalidate any otherwise properly made Election, unless otherwise
determined by Whitney, in its sole discretion. As used herein, "Election
Deadline" means the date that is the business day prior to the date of the
Holding shareholders' meeting.
(v) Any Holding shareholder may, at any time prior to the Election
Deadline, change his or her Election by written notice received by the
Exchange Agent prior to the Election Deadline accompanied by a properly
completed and signed revised Form of Election. If Whitney shall determine
in its reasonable discretion that any Election is not properly made with
respect to any shares of Holding Common Stock, such Election shall be
deemed to be not in effect, and the shares of Holding Common Stock covered
by such Election shall, for purposes hereof, be deemed to be "Non-Election
Shares", unless a proper Election is thereafter timely made. The Holders
of all Non-Election Shares shall be deemed to have elected to receive 100%
Stock Consideration in exchange for such Non-Election Shares.
(vi) Any Holding shareholder may, at any time prior to the Election
Deadline, revoke his or her Election by written notice received by the
Exchange Agent prior to the Election Deadline or by withdrawal prior to
the Election Deadline of his or her Holding Certificate, or of the
guarantee of delivery of such certificates, previously deposited with the
Exchange Agent. If Whitney or Holding terminates this Agreement in
accordance with Section 7, all Elections shall be revoked automatically,
and the Exchange Agent shall promptly return all Holding Certificates, if
any, the Exchange Agent holds to the Holding shareholders.
(vii) Whitney, in the exercise of its reasonable discretion, shall
have the right to make all determinations, not inconsistent with the terms
of this Agreement, governing (i) the validity of the Forms of Election and
compliance by any Holding shareholder with the Election procedures set
forth herein, (ii) the manner and extent to which Elections are to be
taken into account in making the determinations prescribed by Section
2.01(c), (iii) the issuance and delivery of Whitney stock certificates
into which shares of Holding Common Stock are converted in the Company
Merger and (iv) the method of payment of cash for shares of Holding Common
Stock converted into the right to receive the Cash Consideration and cash
in lieu of fractional shares of Whitney Common Stock where the holder of
the applicable Holding Certificate has no right to receive whole shares of
Whitney Common Stock.
(e) Holding Certificates previously evidencing shares of Holding Common
Stock shall be exchanged for the Merger Consideration in accordance with the
provisions of Section 2.02, without interest. Notwithstanding the foregoing,
however, no fractional shares of Whitney Common Stock shall be issued, and, in
lieu thereof, a cash payment shall be made pursuant to Section 2.01(g).
(f) Each share of Holding Common Stock held in the treasury of Holding or
any subsidiary
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of Holding (other than in a fiduciary capacity) immediately prior to the
Effective Time shall be canceled and extinguished without any conversion thereof
and no payment shall be made with respect thereto.
(g) No certificates or scrip representing fractional shares of Whitney
Common Stock will be issued as a result of the Company Merger. In lieu of the
issuance of fractional shares pursuant to Section 2.01(a) of this Agreement,
cash adjustments (without interest) will be paid to the holder of Holding Common
Stock in respect of any fraction of a share of Whitney Common Stock that would
otherwise be issuable to such holder of Holding Common Stock, and the amount of
such cash adjustment shall be determined by multiplying the fraction of a share
of Whitney Common Stock otherwise issuable by the Average Market Price, and no
such holder shall be entitled to dividends, voting rights or any other right of
stockholders in respect of any fractional share.
(h) If, prior to the Effective Time, the issued and outstanding shares of
Whitney Common Stock or Holding Common Stock shall have been increased,
decreased, changed into or exchanged for a different number or kind of shares or
securities as a result of a reorganization, recapitalization, reclassification,
stock dividend, stock split, reverse stock split, or other similar change in
capitalization, then an appropriate and proportionate adjustment shall be made
to the Per Share Amount.
(i) The Holding Stock Options (as defined in Section 3.02) shall be
exercised or terminated as follows:
(A) Prior to the Effective Time, Holding shall use its reasonable
best efforts to cause each outstanding Holding Stock Option to be exercised for
either (x) the shares of Holding Common Stock represented by such Holding Stock
Option in exchange for the payment, prior to the Effective Time, in cash to
Holding of the exercise price therefor or (y) an amount in cash equal to the
difference, if positive, between the Per Share Amount and the exercise price of
each such Holding Stock Option multiplied by the number of shares of Holding
Common Stock subject to the Holding Stock Option (the "Option Payment Amount").
(B) Prior to the delivery of the shares of Holding Common Stock or
Option Payment Amounts as provided above in subsection (A) hereof, each holder
of a Holding Stock Option and Holding shall execute an option termination
agreement in a form reasonably acceptable to Whitney and Holding, which shall
acknowledge that such option holder's Holding Stock Options have been exercised
or terminated, such holder has received all amounts payable or shares issuable
thereunder, and neither Holding, or any successor thereto, nor such option
holder has any further rights or obligations under the terms of any option grant
agreement or the Holding Stock Option Plan (as defined in Section 3.02).
(C) In the event that, immediately prior to the Effective Time, any
holder of a Holding Stock Option has not exercised such Holding Stock Option as
provided by subsection (A) above and executed an option termination agreement as
provided by subsection (B) hereof, then immediately prior to the Effective Time
Holding shall cause such Holding Stock Options to be terminated, and the holders
thereof shall be entitled to receive, upon receipt of a written receipt and
release agreement in form reasonably satisfactory to Whitney, an amount in cash
equal to the Option Payment Amount.
(D) Promptly after the execution of this Agreement, Holding shall
provide notice to each holder of a Holding Stock Option of the terms of this
Section 2.01. Holding shall also take all actions necessary to terminate the
Holding Stock Option Plan prior to the Effective Time.
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2.02. EXCHANGE OF CERTIFICATES; APPRAISAL SHARES
(a) Entitlement to Receive of Merger Consideration. Within one business
day following the written request by the Exchange Agent for the Cash
Consideration, Whitney shall deposit the Cash Consideration in the amount so
requested in an account with the Exchange Agent. After the Effective Time, each
holder of an outstanding Holding Certificate or Certificates theretofore
representing a share or shares of Holding Common Stock, other than Appraisal
Shares and treasury shares, upon surrender thereof to the Exchange Agent,
together with duly executed transmittal materials provided pursuant to Section
2.02(b) or upon compliance by the holder or holders thereof with the procedures
of Whitney with respect to lost, stolen or destroyed certificates, shall be
entitled to receive in exchange therefor his or her proportionate share of the
Merger Consideration payable in exchange for such shares.
(b) Transmittal Materials. Promptly after the Effective Time, Whitney
shall send or cause to be sent to each shareholder of record of Holding at the
Effective Time, excluding the holders, if any, of Appraisal Shares, transmittal
materials for use in exchanging Holding Certificates not previously submitted
with the Election Form and for use in providing any special delivery or payment
instructions with respect to the Merger Consideration to be received.
(c) Payment of Merger Consideration. Upon surrender to the Exchange Agent
of a letter of transmittal duly executed and, if not previously submitted with
the Election Form, a Holding Certificate, the holder shall be entitled to
receive in exchange therefor his or her portion of the Merger Consideration
deliverable in respect of the shares of Holding Common Stock represented by such
holder's Holding Certificate, and such Holding Certificate shall forthwith be
cancelled. No interest will be paid or accrued on the portion of Merger
Consideration deliverable upon surrender of the Holding Certificate. If payment
is to be made to a person other than the person in whose name the Holding
Certificate surrendered is registered, it shall be a condition of payment that
the Holding Certificate so surrendered shall be properly endorsed or otherwise
in proper form for transfer and that the person requesting such payment shall
pay any transfer or other taxes required by reason of the payment to a person
other than the registered holder of the Holding Certificate surrendered or
establish to the satisfaction of Whitney that such tax has been paid or is not
applicable. Until surrendered in accordance with the provisions of this Section
2.02, each Holding Certificate (other than Holding Certificates representing
Appraisal Shares) shall represent for all purposes the right to receive the
corresponding portion of the Merger Consideration without any interest thereon.
Payments to holders of Appraisal Shares shall be made as required by the FBCA.
(d) Appraisal Shares. Notwithstanding anything in this Agreement to the
contrary, Appraisal Shares shall not be converted into or be exchangeable for
the right to receive the corresponding portion of the Merger Consideration
provided in Section 2.01(a) of this Agreement, unless and until such holder
shall have failed to perfect or shall have effectively withdrawn or lost his
right to appraisal and payment under the FBCA. If any such holder shall have so
failed to perfect or shall have effectively withdrawn or lost such right, such
holder's shares of Holding Common Stock shall thereupon be deemed to have been
converted into and to have become exchangeable for, at the Effective Time, the
right to receive the corresponding portion of the Merger Consideration without
any interest thereon.
2.03. CLOSING TRANSFER BOOKS
At the Effective Time, the stock transfer books of Holding shall be closed
and no transfer of shares of Holding Common Stock shall be made thereafter. At
the effective time of the Bank Merger, the stock transfer books of the Bank
shall be closed and no transfer of shares of Bank Common Stock (as
8
hereinafter defined in Section 3.02) shall be made thereafter. All shares of
Whitney Common Stock issued and cash payments paid upon surrender for exchange
of Holding Certificates in accordance with this Section 2 shall be deemed to
have been issued in full satisfaction of all rights pertaining to the shares of
Holding Common Stock theretofore represented by such Holding Certificates.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF HOLDING AND THE BANK
Holding and the Bank represent and warrant to Whitney and WNB that, except
as disclosed in the Schedule of Exceptions (as defined in Section 5.02), as of
the date of this Agreement and as of the Closing Date:
3.01. CONSOLIDATED GROUP; ORGANIZATION; QUALIFICATION
Holding's consolidated group," as such term is used in this Agreement,
consists of Holding and the Bank. Holding is a corporation duly organized,
validly existing and in good standing under the laws of the State of Florida and
is a bank holding company within the meaning of the Bank Holding Company Act of
1956, as amended (the "Bank Holding Company Act"). The Bank is a national
banking association, duly organized, validly existing and in good standing under
the laws of the United States and is domiciled in the State of Florida. Each of
Holding and the Bank has all requisite corporate power and authority to own and
lease its property and to carry on its business as it is currently being
conducted and to execute this Agreement and the Bank Merger Agreement and to
consummate the transactions contemplated hereby, and is qualified and in good
standing as a foreign corporation in all jurisdictions in which the failure to
so qualify and be in good standing would have a Material Adverse Effect (as
hereinafter defined) on Holding or the Bank, as applicable. The Bank is an
"insured institution" as defined in the Federal Deposit Insurance Act and
applicable regulations thereunder, its deposits are insured by the Bank
Insurance Fund.
Unless the context indicates specifically to the contrary, a "Material
Adverse Effect" on a party shall mean any change, event, violation, inaccuracy
or circumstance the effect of which is a material adverse impact on (i) the
executive management team, financial position, property, business, assets
(tangible or intangible) or results of operations of such party or (ii) the
ability of such party to perform its obligations under this Agreement or to
consummate the Company Merger or the other transactions contemplated by this
Agreement; provided, however, that "Material Adverse Effect" shall not be deemed
to include the impact of actions and omissions of a party (or any of its
subsidiaries) taken with the prior informed consent of the other party in
contemplation of the transactions contemplated hereby. Similarly, unless the
context indicates specifically to the contrary, a "Material Adverse Change" is
an event, change or occurrence resulting in a Material Adverse Effect on such
party and its subsidiaries, taken as a whole.
3.02. CAPITAL STOCK; OTHER INTERESTS
As of June 30, 2005, the authorized capital stock (i) of Holding consists
of 7,500,000 shares of Holding Common Stock, of which 3,402,848 shares are
issued and outstanding and no shares are held in its treasury; and (ii) of the
Bank consists of 1,000,000 shares of common stock, $5.00 par value per share
("Bank Common Stock"), of which 751,478 shares are issued and outstanding and no
shares are held in its treasury. All issued and outstanding shares of capital
stock of each member of Holding's consolidated group have been duly authorized
and are validly issued, fully paid and (except as provided in 12 U.S.C. Section
55) nonassessable. All of the outstanding shares of capital stock of the Bank
are owned by Holding, free and clear of all liens, charges, security interests,
mortgages, pledges. All certificates
9
formerly representing shares of the capital stock of the Bank, or any
predecessor thereto, that have been converted into the right to receive shares
of Holding Common Stock have been exchanged for certificates representing shares
of Holding Common Stock. Other than outstanding options to acquire up to an
aggregate of 122,286 shares of Holding Common Stock (the "Holding Stock
Options") granted pursuant to Holding's May 18, 2000 Stock Option Plan (the
"Holding Stock Option Plan"), all of which Holding Stock Options will be
exercised or terminated prior to the Effective Time, no member of Holding's
consolidated group has outstanding any stock options or other rights to acquire
any shares of its capital stock or any security convertible into such shares, or
has any obligation or commitment to issue, sell or deliver any of the foregoing
or any shares of its capital stock. There are no agreements among Holding and
Holding's shareholders or by which Holding is bound with respect to the voting
or transfer of Holding Common Stock or granting registration rights to any
holder thereof. The outstanding capital stock of each member of Holding's
consolidated group has been issued in compliance with all legal requirements and
not in violation of any preemptive or similar rights. No member of Holding's
consolidated group has any subsidiaries (other than the Bank) or any direct or
indirect ownership interest in any firm, corporation, partnership or other
entity.
3.03. CORPORATE AUTHORIZATION; NO CONFLICTS
Subject to the approval of this Agreement and the Bank Merger Agreement by
the shareholders of Holding and the Bank, respectively, in accordance with the
FBCA, and applicable federal law, all corporate acts and other proceedings
required of Holding and the Bank for the due and valid authorization, execution,
delivery and performance of this Agreement and the Bank Merger Agreement and
consummation of the Mergers have been validly and appropriately taken. Subject
to their approval by the shareholders of Holding and the Bank and to such
regulatory approvals as are required by law, this Agreement and the Bank Merger
Agreement are legal, valid and binding obligations of Holding and the Bank and
are enforceable against Holding and the Bank, respectively, in accordance with
the respective terms hereof and thereof, except that enforcement may be limited
by (i) bankruptcy, insolvency, reorganization, moratorium, receivership,
conservatorship, and other laws now or hereafter in effect relating to or
affecting the enforcement of creditors' rights generally or the rights of
creditors of insured depository institutions, (ii) general equitable principles
and (iii) laws relating to the safety and soundness of insured depository
institutions, and except that no representation is made as to the effect or
availability of equitable remedies or injunctive relief (regardless of whether
such enforceability is considered in a proceeding in equity or at law). Except
as set forth on Schedule 3.03 of the Schedule of Exceptions, with respect to
each of Holding and the Bank, neither the execution, delivery or performance of
this Agreement or the Bank Merger Agreement, nor the consummation of the
transactions contemplated hereby or thereby will (i) violate, conflict with, or
result in a breach of any provision of, (ii) constitute a default (or an event
which, with notice or lapse of time or both, would constitute a default) under,
(iii) result in the termination of or accelerate the performance required by, or
(iv) result in the creation of any lien, security interest, charge or
encumbrance upon any of its properties or assets under, any of the terms,
conditions or provisions of its articles of incorporation or association or
by-laws or any material note, bond, mortgage, indenture, deed of trust, lease,
license, agreement or other instrument or obligation to or by which it or any of
its assets is bound; or violate any order, writ, injunction, decree, statute,
rule or regulation of any governmental body applicable to it or any of its
assets.
3.04. HOLDING FINANCIAL STATEMENTS, REPORTS AND PROXY STATEMENTS
(a) Holding has filed with the Securities and Exchange Commission ("SEC")
true and complete copies of (i) the consolidated balance sheets as of December
31, 2004 and December 31, 2003
10
of Holding and its subsidiaries, the related consolidated statements of income,
shareholders' equity and cash flows for the respective years then ended, the
related notes thereto, and the reports of its independent public accountants
with respect thereto as presented in Holding's Annual Report on Form 10-K for
the fiscal year ended December 31, 2004 filed with the SEC under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (collectively, the
"Holding Financial Statements"); and (ii) the unaudited consolidated balance
sheet as of March 31, 2005 of Holding and its subsidiaries, and the related
unaudited statements of income and cash flows for the three-month periods ended
March 31, 2005 and March 31, 2004, as presented in Holding's Quarterly Reports
on Form 10-Q filed with the SEC under the Exchange Act (collectively, the
"Holding Interim Financial Statements"). Holding has delivered to Whitney true
and complete copies of (i) all monthly reports and financial statements of
Holding and its subsidiaries that were prepared for Holding's or the Bank's
Board of Directors since March 31, 2005; (ii) the annual report of Bank Holding
Companies to the Board of Governors of the Federal Reserve System (the "Federal
Reserve Board") for the year ended December 31, 2004, of Holding and its
subsidiaries required to file such reports; (iii) all call reports and
consolidated and parent company only financial statements, including all
amendments thereto, made to the Federal Reserve Board, the Federal Deposit
Insurance Corporation (the "FDIC") and the OCC since December 31, 2002, of
Holding's and its subsidiaries required to file such reports; (iv) Holding's
Annual Report to Shareholders for the year ended 2004 and all subsequent
Quarterly Reports to Shareholders. All registration statements and reports filed
with the SEC since December 31, 2001 pursuant to the Securities Act of 1933, as
amended (the "Securities Act") and pursuant to Section 13 or 15(d) of the
Exchange Act, including all exhibits thereto, of Holding and its subsidiaries
required to file such reports and all proxy or information statements (or
similar materials) disseminated to Holding's shareholders or the shareholders of
any of its subsidiaries at any time since December 31, 2001 are available for
review via the SEC's website.
(b) The Holding Financial Statements and the Holding Interim Financial
Statements have been (and all financial statements to be delivered to Whitney as
required by this Agreement will be) prepared in conformity with accounting
principles generally accepted in the United States of America ("GAAP") applied
on a basis consistent with prior periods, and present fairly, in conformity with
GAAP the financial position, results of operations, changes in shareholders'
equity and cash flows of Holding and its subsidiaries as of the dates thereof
and for the periods covered thereby. All call and other regulatory reports
referred to above have been filed on the appropriate form and prepared in all
material respects in accordance with such forms' instructions and the applicable
rules and regulations of the regulating federal and/or state agency. As of the
date of the latest balance sheet forming part of the Holding Interim Financial
Statements (the "Holding Latest Balance Sheet"), none of Holding and its
subsidiaries has had, nor are any of such members' assets subject to, any
material liability, commitment, indebtedness or obligation (of any kind
whatsoever, whether absolute, accrued, contingent, known or unknown, matured or
unmatured) that is not reflected and adequately provided for in accordance with
GAAP. No report, including any report filed with the SEC, the FDIC, the OCC, the
Federal Reserve Board or other banking regulatory agency, and no report, proxy
statement, registration statement or offering materials made or given to
shareholders of Holding or the Bank since January 1, 2002, as of the respective
dates thereof, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. No report, including any report filed with the SEC, the FDIC,
the OCC, the Federal Reserve Board, or other banking regulatory agency, and no
report, proxy statement, registration statement or offering materials made or
given to shareholders of Holding or the Bank to be filed or disseminated after
the date of this Agreement will contain any untrue statement of a material fact
or will omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
will be made, not misleading. The
11
Holding Financial Statements and the Holding Interim Financial Statements are
supported by and consistent with the general ledger and detailed trial balances
of investment securities, loans and commitments, depositors' accounts and cash
balances on deposit with other institutions, copies of which have been made
available to Whitney. Holding and the Bank have timely filed all reports and
other documents required to be filed by them with the SEC, the FDIC, the OCC,
and the Federal Reserve Board.
(c) Each of the reports filed by Holding with the SEC (the "Holding SEC
Reports") containing Holding Financial Statements or Holding Interim Financial
Statements that has been filed with or submitted to the SEC since July 30, 2002,
was accompanied by the certifications required to be filed or submitted by
Holding's chief executive officer and chief financial officer pursuant to the
Xxxxxxxx-Xxxxx Act of 2002 (the "Xxxxxxxx-Xxxxx Act"), and at the time of filing
or submission of each such certification, such certification was true and
accurate and complied with the Xxxxxxxx-Xxxxx Act and the rules and regulations
promulgated thereunder.
(d) Each of Holding and the Bank maintains accurate books and records
reflecting its assets and liabilities and maintains proper and adequate internal
accounting controls, which provide assurance that (i) transactions are executed
with management's authorization; (ii) transactions are recorded as necessary to
permit preparation of the consolidated financial statements of Holding in
accordance with GAAP and to maintain accountability for Holding's consolidated
assets; (iii) access to Holding's Assets is permitted only in accordance with
management's authorization; (iv) the reporting of Holding's assets is compared
with existing assets at regular intervals and (v) accounts, notes and other
receivables and assets are recorded accurately, and proper and adequate
procedures are implemented to effect the collection thereof on a current and
timely basis.
(e) Since December 31, 2002, neither Holding nor the Bank nor any current
director, officer, or to Holding's knowledge, any former officer or director or
current employee, auditor, accountant or representative of Holding or any
subsidiary has received or otherwise had or obtained knowledge of any complaint,
allegation, assertion or claim, whether written or oral, regarding a material
weakness, significant deficiency or other defect or failure in the accounting or
auditing practices, procedures, methodologies or methods of Holding or any
subsidiary or their respective internal accounting controls. No attorney
representing Holding or any subsidiary, whether or not employed by Holding or
any subsidiary, has reported evidence of a material violation (as such term is
interpreted under Section 307 of the Xxxxxxxx-Xxxxx Act and the SEC's
regulations thereunder) by Holding or any subsidiaries or any of their officers,
directors, employees or agents to Holding's or the Bank's Board of Directors or
any committee thereof or to any director or officer of Holding or the Bank. When
used in this Agreement, unless otherwise specifically provided, "knowledge" when
referring to the knowledge of Holding, the Bank, Whitney or WNB, shall mean the
facts that are known or should reasonably be known after due inquiry by the
executive officers of such entity and the knowledge of any such person obtained
or which would have been obtained from a reasonable investigation.
(f) Holding's independent public accountants, which have expressed their
opinion with respect to the Holding Financial Statements included in Holding SEC
Reports (including the related notes), are and have been throughout the periods
covered by such Holding Financial Statements (x) a registered public accounting
firm (as defined in Section 2(a)(12) of the Xxxxxxxx-Xxxxx Act) (to the extent
applicable during such period), (y) "independent" with respect to Holding within
the meaning of Regulation S-X and (z) with respect to Holding, in compliance
with subsections (g) through (l) of Section 10A of the Exchange Act and related
securities laws. Schedule 3.04(f) of the Schedule of Exceptions lists
12
all non-audit services performed by Holding's independent public accountants for
Holding and its subsidiaries since December 31, 2002.
(g) Holding maintains disclosure controls and procedures required by Rule
13a-15 under the Exchange Act; such controls and procedures are effective to
ensure that all material information concerning Holding and its subsidiaries is
made known on a timely basis to the individuals responsible for the preparation
of Holding SEC Reports. Except as disclosed in Holding SEC Reports filed prior
to the date hereof, Holding and its directors and executive officers have
complied at all times with Section 16(a) of the Exchange Act, including the
filing requirements thereunder.
3.05. LOAN AND INVESTMENT PORTFOLIOS
As of the date hereof, all loans, discounts and financing leases (in which
a member of Holding's consolidated group is lessor) reflected on the Holding
Latest Balance Sheet were, and with respect to the consolidated balance sheets
delivered as of the dates subsequent to the execution of this Agreement will be
as of the dates thereof, (a) at the time and under the circumstances in which
made, made for good, valuable and adequate consideration in the ordinary course
of business of its consolidated group and are the legal, valid and binding
obligations of the obligors thereof, (b) evidenced by genuine notes, agreements
or other evidences of indebtedness and (c) to the extent secured, have been
secured, to the knowledge of Holding, by valid liens and security interests
which have been perfected. Accurate lists of all loans, discounts and financing
leases as of June 30, 2005 and on a monthly basis thereafter, and of the
investment portfolios of each member of Holding's consolidated group as of such
date, have been and will be delivered to Whitney concurrently with the Schedule
of Exceptions. Except as specifically set forth on Schedule 3.05 of the Schedule
of Exceptions, neither Holding nor the Bank is a party to any written or oral
loan agreement, note or borrowing arrangement, including any loan guaranty, that
was, as of the most recent month-end (i) delinquent by more than 30 days in the
payment of principal or interest, (ii) known by any member of Holding's
consolidated group to be otherwise in material default for more than 30 days,
(iii) classified as "substandard," "doubtful," "loss," "other assets especially
mentioned" or any comparable classification by any member of Holding's
consolidated group or the FDIC, the Federal Reserve Board or the OCC, (iv) an
obligation of any director, executive officer or 10% shareholder of any member
of Holding's consolidated group who is subject to Regulation O of the Federal
Reserve Board (12 C.F.R. Part 215), or any person, corporation or enterprise
controlling, controlled by or under common control with any of the foregoing, or
(v) in violation of any law, regulation or rule of any governmental authority,
other than those that are immaterial in amount.
3.06. ADEQUACY OF ALLOWANCES FOR LOSSES
Each of the allowances for losses on loans, financing leases and other
real estate on the Holding Latest Balance Sheet is, and with respect to the
consolidated balance sheets delivered as of the dates subsequent to the
execution of this Agreement will be as of the dates thereof, adequate in
accordance with applicable regulatory guidelines and GAAP in all material
respects, and there are no facts or circumstances known to the Bank that are
likely to require in accordance with applicable regulatory guidelines or GAAP a
future material increase in any such provisions for losses or a material
decrease in any of the allowances therefor. Each of the allowances for losses on
loans, financing leases and other real estate reflected on the books of
Holding's consolidated group at all times from and after the date of the Holding
Latest Balance Sheet is, and will be, adequate in accordance with applicable
regulatory guidelines and GAAP in all material respects, and there are no facts
or circumstances known to the Bank
13
that are likely to require, in accordance with applicable regulatory guidelines
or GAAP, a future material increase in any of such provisions for losses or a
material decrease in any of the allowances therefor.
3.07. ABSENCE OF CERTAIN CHANGES OR EVENTS
Since March 31, 2005, Holding has not declared, set aside for payment or
paid any dividend to holders of, or declared or made any distribution on, any
shares of Holding's capital stock. Since the date of the Holding Latest Balance
Sheet, there has been no event or condition of any character (whether actual or
threatened, to the knowledge of Holding or the Bank) that has had, or can
reasonably be anticipated to have, a Material Adverse Effect on Holding and the
Bank, taken as a whole. Except as may result from the transactions contemplated
by this Agreement, neither Holding nor the Bank has, since the date of the
Holding Latest Balance Sheet:
(a) except as set forth on Schedule 3.07(a) of the Schedule of Exceptions,
borrowed any money other than deposits or overnight fed funds or borrowings from
the Federal Home Loan Bank or entered into any capital lease or leases; or,
except in the ordinary course of business consistent with past practices: (i)
lent any money or pledged any of its credit in connection with any aspect of its
business whether as a guarantor, surety, issuer of a letter of credit or
otherwise, (ii) mortgaged or otherwise subjected to any lien, encumbrance or
other liability any of its assets, (iii) sold, assigned or transferred any of
its assets in excess of $50,000.00 in the aggregate or (iv) incurred any
material liability, commitment, indebtedness or obligation (of any kind
whatsoever, whether absolute or contingent);
(b) suffered any material damage, destruction or loss to immovable or
movable property, whether or not covered by insurance;
(c) experienced any material change in asset concentrations as to
customers or industries or in the nature and source of its liabilities or in the
mix of interest-bearing versus noninterest-bearing deposits such that any such
material change would have, or can reasonably be anticipated to have, a Material
Adverse Effect on Holding or the Bank;
(d) received notice or had knowledge or reason to believe that any
material labor unrest exists among any of its employees or that any group,
organization or union has attempted to organize any of its employees;
(e) received notice that one or more substantial customers have terminated
or intends to terminate such customers' relationship with it, with the result
being a Material Adverse Effect on Holding or the Bank;
(f) failed to operate its business in the ordinary course consistent with
past practices, or failed to use reasonable efforts to preserve its business
organization intact or to preserve the goodwill of its customers and others with
whom it has business relations;
(g) incurred any material loss except for losses adequately provided for
on the date of this Agreement or on the Holding Latest Balance Sheet and
expenses associated with this transaction, or waived any material right in
connection with any aspect of its business, whether or not in the ordinary
course of business;
14
(h) forgiven any material debt owed to it, or canceled any of its claims
or paid any of its noncurrent obligations or liabilities;
(i) except as set forth on Schedule 3.07(i) of the Schedule of Exceptions,
made any capital expenditure or capital addition or betterment in excess of
$50,000.00;
(j) except as set forth on Schedule 3.07(j) of the Schedule of Exceptions,
entered into any agreement requiring the payment, conditionally or otherwise, of
any salary, bonus, extra compensation (including payments for unused vacation or
sick time), pension or severance payment to any of its present or former
directors, officers or employees, except such agreements as are terminable at
will without any penalty or other payment by it or increased (except for
increases of not more than 5% consistent with past practices) the compensation
(including salaries, fees, bonuses, profit sharing, incentive, pension,
retirement or other similar payments) of any such person whose annual
compensation would, following such increase, exceed $50,000.00;
(k) except as required in accordance with GAAP, changed any accounting
practice followed or employed in preparing the Holding Financial Statements or
the Holding Interim Financial Statements;
(l) made any loan, given any discount or entered into any financing lease
that has not been (i) made, at the time and under the circumstances in which
made, for good, valuable and adequate consideration in the ordinary course of
business, (ii) evidenced by genuine notes, agreements or other evidences of
indebtedness and (iii) fully provided for in an amount sufficient in accordance
with applicable regulatory guidelines to provide for all charge-offs reasonably
anticipated in the ordinary course of business after taking into account all
recoveries reasonably anticipated in the ordinary course of business;
(m) entered into any agreement, contract or commitment to do any of the
foregoing; or
(n) except as set forth on Schedule 3.07(n) of the Schedule of Exceptions,
authorized or issued any additional shares of Holding Common Stock, Holding
preferred stock, Bank Common Stock or Bank preferred stock, or any rights or
interests convertible into shares of Holding Common Stock or Bank Common Stock,
or any other shares or securities of any type or any other equity interest,
other than the issuance of shares of Holding Common Stock pursuant to the
exercise of Holding Stock Options outstanding as of the date of this Agreement.
3.08. TAXES
Each member of Holding's consolidated group has timely filed all federal,
state and local income, franchise, excise, sales and use, real and personal
property, employment, intangible and other tax returns, tax information returns
and reports required to be filed, has paid all material taxes, interest payments
and penalties as reflected therein that have become due, other than taxes that
are being contested in good faith and for which adequate accruals have been made
on the Holding Latest Balance Sheet, has made adequate provision for the payment
of all such taxes accruable for all periods ending on or before the date of this
Agreement (and will make such accruals through the Closing Date) to any city,
county, state, the United States or any other taxing authority, and is not
delinquent in the payment of any material tax or material governmental charge of
any nature. To Holding's knowledge, the consolidated federal income tax returns
of Holding's consolidated group have never been audited by the Internal Revenue
Service. No audit or examination is presently being conducted by any taxing
authority nor has any member of Holding's
15
consolidated group received written notice from any such taxing authority of its
intention to conduct any investigation or audit or to commence any such
proceeding; no material unpaid tax deficiencies or additional liabilities of any
sort have been proposed to any member of Holding's consolidated group by any
governmental representative, and no agreements for extension of time for the
assessment of any tax have been entered into by or on behalf of any member of
Holding's consolidated group. Each such member has withheld from its employees
(and timely paid to the appropriate governmental entity) proper and accurate
amounts for all periods in material compliance with all tax withholding
provisions of applicable federal, state and local laws (including, without
limitation, income, social security and employment tax withholding for all forms
of compensation). Neither Holding nor the Bank is a party to any agreement,
contract, arrangement or plan that has resulted, or will result, in the payment
of any "parachute" payment within the meaning of Section 280G of the Code or any
corresponding provisions of state, local or foreign tax laws, with the exception
of the payments to the persons and pursuant to the agreements set forth on
Schedule 3.08 of the Schedule of Exceptions for the accelerated vesting of stock
options, payments made under the agreements required by Section 6.02(c) and
other payments contemplated by this Agreement.
3.09. TITLE TO ASSETS
(a) On the date of the Holding Latest Balance Sheet, each member of
Holding's consolidated group had and, except with respect to assets disposed of
for adequate consideration in the ordinary course of business, now has, good and
marketable title to all real property and good and merchantable title to all
other material properties and assets reflected on the Holding Latest Balance
Sheet, and has good and marketable title to all real property and good and
merchantable title to all other material properties and assets acquired, in each
case free and clear of all mortgages, liens, pledges, restrictions, security
interests, charges and encumbrances of any nature except for (i) mortgages and
encumbrances that secure indebtedness that is properly reflected in the Holding
Latest Balance Sheet or that secure deposits of public funds as required by law;
(ii) liens for taxes accrued but not yet payable; (iii) liens arising as a
matter of law in the ordinary course of business, provided that the obligations
secured by such liens are not delinquent or are being contested in good faith;
(iv) such imperfections of title and encumbrances, if any, as do not materially
detract from the value or materially interfere with the present use of any of
such properties or assets or the potential sale of any of such owned properties
or assets; and (v) capital leases and leases, if any, to third parties for fair
and adequate consideration. Each member of Holding's consolidated group owns, or
has valid leasehold interests in, all properties and assets used in the conduct
of its business. Any real property and other material assets held under lease by
any such member are held under valid, subsisting and enforceable leases with
such exceptions as are not material and do not interfere with the use made of
and proposed to be made of such property by such member of such property. No
real property held by any member of Holding's consolidated group, or, to the
knowledge of Holding or the Bank, any real property subject to a security
interest, has been deed recorded or otherwise been identified in public records
or should have been recorded or so identified as containing Hazardous Materials
(as hereinafter defined).
(b) With respect to each lease of any real property or personal property
to which any member of Holding's consolidated group is a party (whether as
lessee or lessor), except for financing leases in which a member of such
consolidated group is lessor, (i) such lease is in full force and effect in
accordance with its terms; (ii) all rents and other monetary amounts that have
become due and payable thereunder have been paid; (iii) there exists no default,
or event, occurrence, condition or act, which with the giving of notice, the
lapse of time or the happening of any further event, occurrence, condition or
act
16
would become a default under such lease; and (iv) upon receipt of the consents
described on Schedule 3.09(b), the Mergers will not constitute a default or a
cause for termination or modification of such lease.
(c) No member of Holding's consolidated group has any legal obligation,
absolute or contingent, to any other person to sell or otherwise dispose of any
substantial part of its assets or to sell or dispose of any of its assets except
in the ordinary course of business consistent with past practices.
3.10. LEGAL MATTERS
(a) There is no material claim, action, suit, proceeding, arbitration or
investigation pending in any court or before or by any governmental agency or
instrumentality or arbitration panel or otherwise, or, to the knowledge of
Holding, threatened against any member of Holding's consolidated group nor do
any facts or circumstances exist that would be likely to form the basis for any
material claim against any member of Holding's consolidated group that, if
adversely determined, individually or in the aggregate, would have a Material
Adverse Effect on Holding or the Bank.
(b) Each member of Holding's consolidated group has complied in all
material respects with and is not in default in any material respect under (and
has not been charged or, to the knowledge of Holding, threatened with or come
under investigation with respect to any charge concerning any material violation
of any provision of) any federal, state or local law, regulation, ordinance,
rule or order (whether executive, judicial, legislative or administrative) or
any order, writ, injunction, judgment or decree of any court, agency or
instrumentality.
(c) There are no uncured violations, or violations with respect to which
material refunds or restitution may be required, cited in any compliance report
to any member of Holding's consolidated group as a result of examination by any
bank regulatory authority, bank holding company regulatory authority or other
regulatory authority.
(d) No member of Holding's consolidated group is subject to any written
agreement, memorandum of understanding or order with or by any bank regulatory
authority, bank holding company regulatory authority or other regulatory
authority, and no such regulatory authority has required a member of Holding's
consolidated group to enter into a board resolution that continues in effect
with respect to compliance with a regulatory obligation following a regulatory
examination.
(e) Other than routine bank regulatory examinations of Holding or the
Bank, there are no governmental investigations pending or to Holding's
knowledge, threatened against any member of Holding's consolidated group. There
is no claim, action, suit, proceeding, arbitration, or investigation, pending
or, to the knowledge of Holding, threatened, in which any material claim or
demand is made or threatened to be made against any officer, director, advisory
director or employee of Holding's consolidated group, in each case by reason of
any person being or having been an officer, director, advisory director or
employee of any such member of the consolidated group.
3.11. EMPLOYEE BENEFIT PLANS
(a) Except for the plans, policies, contracts and arrangements listed on
Schedule 3.11(a) of the Schedule of Exceptions (the "Employee Benefit Plans"),
no member of Holding's consolidated group sponsors, maintains or contributes to,
and no such member has at any time sponsored, maintained or contributed to, any
employee benefit plan, payroll practice, severance pay arrangement, employment
17
agreement or similar arrangement, whether or not subject to the provisions of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), in
which Holding or the Bank employees participate or under which Holding or the
Bank employees are entitled to compensation or benefits. Each of the Employee
Benefit Plans has been maintained and administered in all material respects in
compliance with its terms, the applicable provisions of ERISA and all other
applicable laws, and, where applicable, the provisions of the Code. No Employee
Benefit Plan, officer of any member of Holding's consolidated group, or, to the
knowledge of Holding, any other "party in interest" or "disqualified person"
with respect thereto, has engaged in a nonexempt prohibited transaction under
Section 4975 of the Code or Section 502(i) of ERISA with an Employee Benefit
Plan maintained by any member of Holding's consolidated group; there is no claim
relating to any of the Employee Benefit Plans pending or threatened, nor are
there any facts or circumstances existing that could reasonably be expected to
lead to (other than routine filings such as qualification determination
filings), proceedings before, or administrative actions by, any governmental
agency; there are no actions, suits or claims pending or threatened (including,
without limitation, breach of fiduciary duty actions, but excluding routine
claims for benefits) against any of the Employee Benefit Plans or the assets
thereof. Each member of Holding's consolidated group has complied in all
material respects with the applicable reporting and disclosure requirements of
ERISA and the Code. None of the Employee Benefit Plans is a multi-employer plan
within the meaning of Section 3(37) of ERISA. For each Employee Benefit Plan
that is intended to be qualified under Section 401(a) of the Code a favorable
determination letter has been issued by the Internal Revenue Service or the
Employee Benefit Plan is maintained under a prototype plan that has received an
Internal Revenue Service opinion letter that may be relied upon pursuant to
Revenue Procedure 2004-6 and is intended to be qualified under Section 401(a) of
the Code. The Internal Revenue Service has taken no action to revoke any such
determination or opinion letter and Holding is not aware of anything that has
occurred, whether by action or failure to act, that would cause the loss of such
qualification. Except as disclosed on Schedule 3.11(a) of the Schedule of
Exceptions, no member of Holding's consolidated group has sponsored, maintained
or made contributions to any plan, fund or arrangement providing for medical
benefits, insurance coverage or other similar benefits for any period extending
beyond the termination of employment, except as may be required under the
"COBRA" provisions of ERISA and the Code or under similar requirements of state
law.
(b) True and complete copies of all Employee Benefit Plans (including all
amendments and modifications thereof), together with copies of any tax
determination or opinion letters, trust agreements, summary plan descriptions,
insurance contracts, investment management agreements and the three most recent
annual reports on form series 5500, if applicable, with respect to such plan or
arrangement will be delivered to Whitney with the Schedule of Exceptions.
(c) Except as set forth on Schedule 3.11(c) of the Schedule of Exceptions,
no such Employee Benefit Plan or other plan is a defined benefit pension plan
subject to Section 412 of the Code. Except as set forth on Schedule Section
3.11(c), each Employee Benefit Plan that is subject to Section 412 of the Code
or Section 302 of ERISA (each, a "Pension Plan") had, as of the date of its most
recent actuarial valuation, assets measured at fair market value at least equal
to its "current liability," as that term is defined in Section 302(d)(7) of
ERISA. Since the date of the most recent actuarial valuation, no event has
occurred that would be reasonably expected to adversely change any such funded
status in a material way [other than legislative changes to Section 412 of the
Code and the minimum funding provisions of ERISA]. No Pension Plan nor any
"single-employer plan," within the meaning of Section 4001(a)(15) of ERISA,
currently maintained by any member of Holding's consolidated group, or the
single-employer plan of any ERISA Affiliate (as defined below) has an
"accumulated funding deficiency" within the meaning of Section 412 of the
Internal Revenue Code or Section 302 of ERISA. All required
18
contributions with respect to any Pension Plan or any single-employer plan of
any of its ERISA Affiliates have been timely made and there is no lien, nor is
there expected to be a lien, under Code Section 412(n) or ERISA Section 302(f)
or tax under Code Section 4971. No member of Holding's consolidated group has
provided, or is required to provide, security to any of its Pension Plans or to
any single-employer plan of any of its ERISA Affiliates pursuant to Section
401(a)(29) of the Code. All premiums required to be paid under ERISA Section
4006 have been timely paid by Holding and its subsidiaries. For purposes of this
Agreement, an "ERISA Affiliate" of any person means any entity that is, or at
any relevant time was, a member of (i) a controlled group of corporations (as
defined in Section 414(b) of the Code), (ii) a group of trades or businesses
under common control (as defined in Section 414(c) of the Code) or (iii) an
affiliated service group (as defined under Section 414(m) of the Code or the
regulations under Section 414(o) of the Code) with such person.
(d) No liability under Section 4041 or Sections 4062 through 4069 of ERISA
has been or is expected to be incurred by Holding or any of its subsidiaries
with respect to any defined benefit pension plan currently or formerly
maintained by any of them or by any of Holding's ERISA Affiliates that has not
been satisfied in full (other than liability for Pension Benefit Guaranty
Corporation premiums, which have been paid when due).
(e) All group health plans of any member of Holding's consolidated group
to which Section 4980B(f) of the Code or Section 601 of ERISA applies are in
compliance in all material respects with continuation coverage requirements of
Section 4980B(f) of the Code and Section 601 of ERISA and any prior violations
of such sections have been cured prior to the date hereof, and all such group
health plans not exempt from Section 701 of ERISA are in compliance in all
material respects with the notice, certification and design requirements imposed
under Section 701 of ERISA, et seq. (Health Insurance Portability and
Accountability Act of 1996).
(f) With respect to each Employee Benefit Plan previously or currently
sponsored or maintained by any member of Holding's consolidated group, or to
which any member of Holding's consolidated group previously made or is currently
making contributions, that is ongoing or has been terminated by any member of
Holding's consolidated group, no event has occurred and no condition exists that
would subject Holding, the Bank, Whitney or WNB to any tax, penalty, fine or
other liability as a result of the sponsorship, contribution to or maintenance
of such Employee Benefit Plan.
(g) No payment or benefit made, to be made or due to any participant under
the Employee Benefit Plans, the Holding Stock Option Plan, or other arrangement
on account of the transactions contemplated hereunder, with the exception of the
payments to the persons and in connection with the agreements set forth on
Schedule 3.08 of the Schedule of Exceptions for the accelerated vesting of stock
options, payments made under the agreements required by Section 6.02(c) and
other payments contemplated by this Agreement, will be deemed to constitute an
"excess parachute payment" within the meaning of Code Section 280G and the
regulations promulgated thereunder.
(h) Each grant, award or other form of incentive relating to shares of
Holding Common Stock made under the Employee Benefit Plans and/or the Holding
Stock Option Plans was granted or awarded in compliance with all applicable
laws, including federal and state securities laws.
3.12. INSURANCE POLICIES
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Each member of Holding's consolidated group maintains in full force and
effect insurance policies and bonds in such amounts and against such liabilities
and hazards of the types and amounts as (i) it considers to be adequate for its
business and operations and (ii) are comparable to those maintained by other
banking organizations of similar size and complexity. An accurate list of all
such insurance policies is attached as Schedule 3.12 of the Schedule of
Exceptions. No member of Holding's consolidated group is now liable for, nor has
any such member received notice of, any material retroactive premium adjustment.
All policies are valid and enforceable and in full force and effect, and no
member of Holding's consolidated group has received any notice of a material
premium increase or cancellation with respect to any of its insurance policies
or bonds. Within the last three years, no member of Holding's consolidated group
has been refused any basic insurance coverage sought or applied for (other than
certain exclusions for coverage of certain events or circumstances as stated in
such policies), and neither Holding nor the Bank has any reason to believe that
its existing insurance coverage cannot be renewed as and when the same shall
expire, upon terms and conditions standard in the market at the time renewal is
sought as favorable as those presently in effect.
3.13. AGREEMENTS
(a) No member of Holding's consolidated group is a party to:
(i) any collective bargaining agreement;
(ii) any employment or other agreement or contract with or
commitment to any employee other than the Employee Benefit Plans and the Holding
Stock Option Plans; the employment related agreements, arrangements, policies
and practices referred to on Schedule 3.13(a)(ii) of the Schedule of Exceptions;
and, such employment related agreements as are terminable without penalty upon
not more than 30 days notice by the employer;
(iii) any obligation of guaranty or indemnification, other than as
set forth on Schedule 3.13(a)(iii) of the Schedule of Exceptions, except such
indemnification of officers, directors, employees and agents of Holding's
consolidated group as on the date of this Agreement may be provided in their
respective articles of incorporation or association and by-laws (and no
indemnification of any such officer, director, employee or agent has been
authorized, granted or awarded), except if entered into in the ordinary course
of business with respect to customers of any member of Holding's consolidated
group, letters of credit, guaranties of endorsements and guaranties of
signatures;
(iv) any agreement, contract or commitment that is or if performed
will be materially adverse to the financial condition, results of operations or
business of Holding's consolidated group;
(v) any agreement, contract or commitment containing any covenant
limiting the freedom of any member of Holding's consolidated group (x) to engage
in any line of business permitted by regulatory authorities, (y) to compete with
any person in a line of business permitted by applicable regulatory guidelines
to be engaged in by bank holding companies, Florida state or national banks, or
the subsidiaries of either Holding or the Bank, or (z) to fulfill any of its
requirements or needs for services or products (including, for example,
contracts with vendors to supply customers with credit insurance) except those
designated as such on Schedule 3.13(a)(v) of the Schedule of Exceptions; or
(vi) any written agreement, memorandum of understanding, letter,
board resolution, order or decree, formal or informal, with any federal or state
regulatory agency, nor has any member of
20
Holding's consolidated group been advised by any regulatory agency that it is
considering issuing or requesting any such written agreement, memorandum,
letter, order or decree.
(b) Schedule 3.13(b) of the Schedule of Exceptions contains a list of each
agreement, contract or commitment over $25,000 in an amount or with a term
exceeding 12 months in duration (except those entered into in the ordinary
course of business with respect to loans, lines of credit, letters of credit,
depositor agreements, certificates of deposit and similar banking activities and
equipment maintenance agreements that are not material) to which any member of
Holding's consolidated group is a party or which affects any such member. To
Holding's knowledge, no member of Holding's consolidated group has in any
material respect breached, nor is there any pending or threatened claim that it
has materially breached, any of the terms or conditions of any of such
agreements, contracts or commitments or of any material agreement, contract or
commitment that it enters into after the date of this Agreement. No member of
Holding's consolidated group is in violation of any written agreement,
memorandum, letter, order or decree, formal or informal, with any federal or
state regulatory agency.
3.14. LICENSES, FRANCHISES AND GOVERNMENTAL AUTHORIZATIONS
Each member of Holding's consolidated group possesses all licenses,
franchises, permits and other governmental authorizations necessary for the
continued conduct of its business without interference or interruption. The
deposits of the Bank are insured by the FDIC to the extent provided by
applicable law, and there are no pending or threatened proceedings to revoke or
modify that insurance or for relief under 12 U.S.C. Section 1818.
3.15. CORPORATE DOCUMENTS
Holding has delivered to Whitney, with respect to each member of Holding's
consolidated group, true and correct copies of its articles of incorporation or
articles of association, its by-laws, and the charters of each of the committees
of its Board of Directors, all as amended and currently in effect. All of the
foregoing, and all of the corporate minutes and stock transfer records of each
member of Holding's consolidated group that will be made available to Whitney
after the date hereof, are current, complete and correct in all material
respects.
3.16. CERTAIN TRANSACTIONS
Except as disclosed on Schedule 3.16 of the Schedule of Exceptions, no
past or present director, executive officer or five percent or greater
shareholder of any member of Holding's consolidated group has, since January 1,
2003, engaged in any transaction or series of transactions that, if such member
had been subject to Section 14(a) of the Exchange Act, would be required to be
disclosed pursuant to Item 404 of Regulation S-K of the rules and regulations of
the SEC.
3.17. BROKER'S OR FINDER'S FEES
Except for Xxxxx Financial, LLC ("Xxxxx"), whose fees and right to
reimbursement of expenses are as disclosed pursuant to a contract dated April
21, 2005 (a copy of which has been provided to Whitney) (the "Xxxxx Agreement"),
no agent, broker, investment banker, investment or financial advisor or other
person acting on behalf of any member of Holding's consolidated group is
entitled to any commission, broker's or finder's fee from any of the parties
hereto in connection with any of the transactions contemplated by this
Agreement.
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3.18. ENVIRONMENTAL MATTERS
(a) (i) Each member of Holding's consolidated group has obtained all
material permits, licenses and other authorizations that are required to be
obtained by it under any applicable Environmental Law Requirements (as
hereinafter defined) in connection with the operation of its businesses and
ownership of its properties (collectively, the "Subject Properties"), including
without limitation, to the knowledge of Holding, properties acquired by
foreclosure or in settlement of loans;
(ii) Each member of Holding's consolidated group is in compliance
with all terms and conditions of such permits, licenses and authorizations and
with all applicable Environmental Law Requirements, except for such
noncompliance as would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect on Holding or the Bank;
(iii) To Holding's knowledge, there are no past or present events,
conditions, circumstances, activities or plans by any member of Holding's
consolidated group related in any manner to any member of Holding's consolidated
group or the Subject Properties that did or would violate or prevent compliance
or continued compliance with any of the Environmental Law Requirements, or give
rise to any Environmental Liability (as hereinafter defined), except for such as
would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect on Holding or the Bank;
(iv) To Holding's knowledge, there is no civil, criminal or
administrative action, suit, demand, claim, order, judgment, hearing, notice or
demand letter, notice of violation, investigation or proceeding pending or
threatened by any person against any member of Holding's consolidated group, or
any prior owner of any of the Subject Properties that relates to the Subject
Properties and relates in any way to any Environmental Law Requirement or seeks
to impose any Environmental Liability; and
(v) To Holding's knowledge, no member of Holding's consolidated
group is subject to or responsible for any Environmental Liability that is not
set forth and adequately provided for on the Holding Latest Balance Sheet.
(vi) To Holding's knowledge, there is currently no contamination of
the Subject Properties by stachybotrys chartarum mold or other mold presenting a
hazard to human health, and Holding has no knowledge of any event or condition
that could result in such contamination of the Subject Properties in the future.
(b) "Environmental Law Requirement" means all applicable present and
future statutes, regulations, rules, ordinances, codes, licenses, permits,
orders, approvals, plans, authorizations, concessions, franchises and similar
items, of all governmental agencies, departments, commissions, boards, bureaus,
or instrumentalities of the United States, states and political subdivisions
thereof and all applicable judicial, administrative, and regulatory decrees,
judgments and orders relating to the protection of human health or the
environment, including without limitation: (A) all requirements, including but
not limited to those pertaining to reporting, licensing, permitting,
investigation, and remediation of emissions, discharges, releases, or threatened
releases of Hazardous Materials, chemical substances, pollutants, contaminants,
or hazardous or toxic substances, materials or wastes whether solid, liquid, or
gaseous in nature, into the air, surface water, groundwater, or land, or
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of Hazardous Materials, chemical substances,
pollutants, contaminants, or hazardous or toxic substances, materials or wastes,
whether solid,
22
liquid, or gaseous in nature; (B) all requirements pertaining to protection of
the health and safety of employees or the public; and (C) all requirements
pertaining to the (i) drilling, production, and abandonment of oil and gas
xxxxx, (ii) the transportation of produced oil and gas, and (iii) the
remediation of sites related to that drilling, production or transportation.
(c) "Hazardous Materials" shall mean: (A) any "hazardous substance" as
defined by either the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. Section 9601, et seq.) ("CERCLA") as amended
from time to time, or regulations promulgated thereunder; (B) asbestos; (C)
polychlorinated biphenyls; (D) any "regulated substance" as defined by 40 C.F.R.
Section 280.12 or the FL Ad. Code, Title 62, Chapter 62-761 and Sec. 62-761.200;
(E) any naturally occurring radioactive material ("NORM"), as defined by
applicable federal or state laws or regulations as amended from time to time,
irrespective of whether the NORM is located in Florida or another jurisdiction;
(F) any nonhazardous oilfield wastes ("NOW") defined under applicable federal or
state laws or regulations, irrespective of whether those wastes are located in
Florida or another jurisdiction; (G) any substance the presence of which on the
Subject Properties is prohibited by any lawful rules and regulations of legally
constituted authorities from time to time in force and effect relating to the
Subject Properties; and (H) any other substance that by any such rule or
regulation requires special handling in its collection, storage, treatment or
disposal.
(d) "Environmental Liability" shall mean (i) any liability or obligation
arising under any Environmental Law Requirement, or (ii) any liability or
obligation under any other theory of law or equity (including without limitation
any liability for personal injury, property damage or remediation) that results
from, or is based upon or related to, the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling, or the emission,
discharge, release or threatened release into the environment, of any Hazardous
Material, pollutant, contaminant, chemical, or industrial, toxic or hazardous
substance or waste.
3.19. INTELLECTUAL PROPERTY
(a) Schedule 3.19 of the Schedule of Exceptions sets forth a complete list
and description of all patents, trademarks, trade names, trade secrets,
copyrights, processes, service marks, royalty rights or design rights owned,
used or licensed (as licensor or licensee) by either Holding or the Bank in the
operation of their business and all applications therefor and registrations
thereof, whether foreign or domestic, owned or controlled by either Holding or
the Bank (the "Intellectual Property"), and, in the case of any such rights that
are so owned, the jurisdiction in which such rights or applications have been
registered, filed or issued, and, in the case of any such rights that are not so
owned, the agreements under which such rights arise. Each of Holding and the
Bank and the subsidiaries has taken all action necessary to keep the
Intellectual Property owned by it in full force and effect, including without
limitation, filing all necessary affidavits and other documents and utilizing
such property in interstate commerce. Each of Holding and the Bank is the sole
and exclusive owner of the Intellectual Property listed on Schedule 3.19 of the
Schedule of Exceptions as being owned by it, with the sole and exclusive right,
except to the extent indicated therein, to use and license such property. No
claim has been asserted or, to Holding's knowledge, threatened seeking
cancellation or concurrent use of any registered trademark, tradename or service
xxxx listed on Schedule 3.19 of the Schedule of Exceptions.
(b) There are no claims, demands or suits pending or, to Holding's
knowledge, threatened against Holding or the Bank claiming an infringement by
Holding or the Bank of any patents, copyrights, processes, licenses, trademarks,
service marks or trade names of others in connection with their business;
23
none of the Intellectual Property or, as the case may be, the rights granted to
Holding or the Bank in respect thereof, infringes on the rights of any person or
is being infringed upon by any person, and none is subject to any outstanding
order, decree, judgment, stipulation, injunction, restriction or agreement
restricting the scope of their use by Holding or the Bank.
3.20. COMMUNITY REINVESTMENT ACT
The Bank has complied in all material respects with the provisions of the
Community Reinvestment Act ("CRA") and the rules and regulations thereunder, has
a CRA rating of not less than "satisfactory," has received no material criticism
from regulators with respect to discriminatory lending practices, and has no
knowledge of any conditions or circumstances that are likely to result in a CRA
rating of less than "satisfactory" or material criticism from regulators with
respect to discriminatory lending practices.
3.21. PRIVACY OF CUSTOMER INFORMATION
(a) The Bank is the sole owner of all individually identifiable personal
information ("IIPI") relating to customers, former customers and prospective
customers that will be transferred to WNB or a subsidiary of WNB pursuant to
this Agreement and the Bank Merger Agreement and the other transactions
contemplated hereby. For purposes of this Section 3.21, "IIPI" means any
information relating to an identified or identifiable natural person.
(b) The collection and use of such IIPI by the Bank, the transfer of such
IIPI to WNB, Whitney or any WNB subsidiary in connection with the Mergers, and
the use of such IIPI by WNB, Whitney or any WNB subsidiary as contemplated by
this Agreement complies with all applicable privacy policies, the Fair Credit
Reporting Act, the Xxxxx-Xxxxx-Xxxxxx Act and all other applicable state,
federal and foreign privacy law, and any contract or industry standard relating
to privacy.
3.22. OPINION OF FINANCIAL ADVISOR
Prior to the execution of this Agreement, Holding has received the opinion
of Xxxxx to the effect that the Merger Consideration to be received by the
holders of Holding Common Stock is fair, from a financial point of view, to such
holders, a signed copy of which has been delivered to Whitney. Such opinion has
not been amended, revised or rescinded as of the date of this Agreement.
3.23. TECHNOLOGY SYSTEMS
(a) Except to the extent indicated on Schedule 3.23 of the Schedule of
Exceptions, no action will be necessary as a result of the transactions
contemplated by this Agreement to enable use of the electronic data processing,
information, record keeping, communications, telecommunications, hardware, third
party software, networks, peripherals, portfolio trading and computer systems,
including any outsourced systems and processes, and Intellectual Property that
are used by Holding and the Bank (collectively, the "Technology Systems") to
continue by the surviving corporation and its subsidiaries to the same extent
and in the same manner that it has been used by Holding and the Bank prior to
the Effective Date.
(b) The Technology Systems (for a period of 18 months prior to the
Effective Date) have not suffered unplanned disruption causing a Material
Adverse Effect on Holding or the Bank. Except for
24
ongoing payments due under relevant third party agreements, the Technology
Systems are free from any liens. Access to business critical parts of the
Technology Systems is not shared with any third party.
(c) Details of Holding's disaster recovery and business continuity
arrangements will be provided to Whitney with the Schedule of Exceptions.
(d) Neither Holding nor the Bank has received notice of or is aware of any
material circumstances including, without limitation, the execution of this
Agreement that would enable any third party to terminate any of Holding's or the
Bank's agreements or arrangements relating to the Technology Systems (including
maintenance and support).
3.24 STATE TAKEOVER LAWS.
Holding has taken all action required to be taken by it in order to exempt
this Agreement and the transactions contemplated hereby from, and this Agreement
and the transactions contemplated hereby are exempt from, the requirements of
any "moratorium," "control share," "fair price," "affiliate transaction,"
"anti-greenmail," "business combination" or other anti-takeover laws of any
jurisdiction, including Sections 607.0901 and 607.0902 of the FBCA
(collectively, "Takeover Laws"). Holding has taken all action required to be
taken by it in order to make this Agreement and the transactions contemplated
hereby comply with, and this Agreement and the transactions contemplated hereby
do comply with, the requirements of any provisions of its articles of
incorporation, bylaws or other organizational documents concerning "business
combination," "fair price," "voting requirement," "constituency requirement" or
other related provisions.
3.25 CERTAIN ACTIONS.
Neither Holding nor any of its subsidiaries or affiliates has taken or
agreed to take any action, and it has no knowledge of any fact or circumstance,
that is reasonably likely to (i) prevent the Company Merger and the Bank Merger
from qualifying as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code, or (ii) materially impede or delay receipt of any
required regulatory consents. To Holding's knowledge, there exists no fact,
circumstance, or reason that would cause any required consent not to be received
in a timely manner.
3.26. ACCURACY OF STATEMENTS
No warranty or representation made or to be made by any member of
Holding's consolidated group in this Agreement or in any document furnished or
to be furnished by any member of Holding's consolidated group pursuant to this
Agreement contains or will contain, as of the date of this Agreement, the
effective date of the Registration Statement (as defined in Section 5.15 hereof)
and the Closing Date, an untrue statement of a material fact or an omission of a
material fact necessary to make the statements contained herein and therein, in
light of the circumstances in which they are made, not misleading.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF WHITNEY AND WNB
Whitney and WNB represent and warrant to Holding and the Bank that as of
the date of this Agreement and as of the Closing Date:
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4.01. CONSOLIDATED GROUP; ORGANIZATION; QUALIFICATION.
"Whitney's consolidated group," as such term is used in this Agreement,
consists of Whitney and WNB. Whitney is a corporation duly organized and validly
existing under the laws of the State of Louisiana and is a bank holding company
within the meaning of the Bank Holding Company Act of 1956, as amended. WNB is a
national banking association duly organized and validly existing and in good
standing under the laws of the United States of America. Each of Whitney and WNB
has all requisite corporate power and authority to own and lease its property
and to carry on its business as it is currently being conducted and to execute
and deliver this Agreement and the Bank Merger Agreement to which it is a party
and to consummate the transactions contemplated hereby and thereby, and is
qualified and in good standing as a foreign corporation in all jurisdictions in
which the failure to so qualify would have a material adverse effect on the
financial condition, results of operations or business of Whitney's consolidated
group, taken as a whole.
4.02. CAPITAL STOCK
As of the date of this Agreement, the authorized capital stock of Whitney
consists of 100,000,000 shares of Whitney Common Stock. As of June 30, 2005,
63,222,349 shares of Whitney Common Stock were issued and outstanding and
241,700 shares were held in its treasury. All issued and outstanding shares of
capital stock of Whitney and WNB have been duly authorized and are validly
issued, fully paid and (except as provided in 12 U.S.C. Section 55)
nonassessable. The outstanding capital stock of Whitney and WNB has been issued
in compliance with all legal requirements and any preemptive or similar rights.
Whitney owns all of the issued and outstanding shares of capital stock of WNB
free and clear of all liens, charges, security interests, mortgages, pledges and
other encumbrances.
4.03. CORPORATE AUTHORIZATION; NO CONFLICTS
Subject to approval of the Bank Merger Agreement by WNB's Board of
Directors and by Whitney as the sole shareholder of WNB, all corporate acts and
other proceedings required of Whitney and WNB for the due and valid
authorization, execution, delivery and performance of this Agreement and the
Bank Merger Agreement and consummation of the Mergers have been validly and
appropriately taken. Subject to such regulatory approvals as are required by
law, this Agreement and the Bank Merger Agreement are legal, valid and binding
obligations of Whitney and WNB as the case may be, and are enforceable against
them in accordance with the respective terms of such agreements, except that
enforcement may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, receivership, conservatorship, and other laws now or hereafter in
effect relating to or affecting the enforcement of creditors' rights generally
or the rights of creditors of insured depository institutions, (ii) general
equitable principles and (iii) laws relating to the safety and soundness of
insured depository institutions, and except that no representation is made as to
the effect or availability of equitable remedies or injunctive relief
(regardless of whether such enforceability is considered in a proceeding in
equity or at law). With respect to each of Whitney and WNB, neither the
execution, delivery or performance of this Agreement or the Bank Merger
Agreement, nor the consummation of the transactions contemplated hereby or
thereby will (i) violate, conflict with, or result in a breach of any provision
of, (ii) constitute a default (or an event which, with notice or lapse of time
or both, would constitute a default) under, (iii) result in the termination of
or accelerate the performance required by, or (iv) result in the creation of any
lien, security interest, charge or encumbrance upon any of its properties or
assets under, any of the terms, conditions or provisions of its articles of
incorporation or association or its by-laws (or comparable documents) or any
material note, bond, mortgage, indenture, deed of trust, lease, license,
agreement or other material
26
instrument or obligation to or by which it or any of its assets is bound; or
violate any order, writ, injunction, decree, statute, rule or regulation of any
governmental body applicable to it or any of its assets.
4.04. WHITNEY FINANCIAL STATEMENTS; REPORTS AND PROXY STATEMENTS
(a) Whitney has filed with the SEC true and complete copies of the (i)
consolidated balance sheets as of December 31, 2004 and December 31, 2003 of
Whitney and its subsidiaries, the related consolidated statements of income,
changes in shareholders' equity and cash flows for the respective years then
ended, the related notes thereto, and the report of its independent public
accountants with respect thereto, as presented in Whitney's Annual Report on
Form 10-K for the fiscal year ended December 31, 2004 filed with the SEC
(collectively, the "Whitney Financial Statements"); and (ii) the unaudited
consolidated balance sheet as of March 31, 2005 of Whitney and its subsidiaries
and the related unaudited statements of income and cash flows for the
three-month periods ended March 31, 2005 and March 31, 2004, as presented in
Whitney's quarterly report on Form 10-Q filed with the SEC (the "Whitney Interim
Financial Statements").
(b) The Whitney Financial Statements and the Whitney Interim Financial
Statements have been prepared in conformity with GAAP applied on a basis
consistent with prior periods, and present fairly, in conformity with GAAP, the
consolidated results of operations of Whitney and its subsidiaries for the
respective periods covered thereby and the consolidated financial condition of
Whitney and its subsidiaries as of the respective dates thereof. All call and
other regulatory reports have been filed on the appropriate form and prepared in
all material respects in accordance with such forms' instructions and the
applicable rules and regulations of the regulating federal agency. As of the
date of the latest balance sheet forming part of the Whitney Interim Financial
Statements (the "Whitney Latest Balance Sheet"), none of Whitney and its
subsidiaries has had, nor are any of such members' assets subject to, any
material liability, commitment, indebtedness or obligation (of any kind
whatsoever, whether absolute, accrued, contingent, matured or unmatured) that is
not reflected and adequately provided for in accordance with GAAP.
4.05. LEGALITY OF WHITNEY SECURITIES
All shares of Whitney Common Stock to be issued pursuant to the Company
Merger have been duly authorized and, when issued pursuant to this Agreement,
will be validly and legally issued, fully paid and nonassessable, and will be,
at the time of their delivery, free and clear of all liens, charges, security
interests, mortgages, pledges and other encumbrances and any preemptive or
similar rights.
4.06. SEC REPORTS
Whitney has filed with the SEC pursuant to the Exchange Act the following
Whitney reports : (a) annual reports on Form 10-K for the years ended December
31, 2004 and 2003; (b) quarterly reports on Form 10-Q for the quarter ended
March 31, 2005; and (c) proxy statements for the years 2005 and 2004. As of
their respective dates, no such report or communication contained any untrue
statement of a material fact or omitted 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 were made, not misleading. Whitney has
timely filed all reports and other documents required to be filed by it with the
SEC, the FDIC, the OCC, the Federal Reserve Board, or any other banking
regulatory agency.
27
4.07. ABSENCE OF CERTAIN CHANGES OR EVENTS.
Since the date of Whitney's quarterly report on Form 10-Q for the quarter
ended March 31, 2005, there has been no event or condition of any character
(whether actual or threatened) that has had, or can reasonably be anticipated to
have, a Material Adverse Effect on Whitney and WNB, taken as a whole.
4.08. LEGAL MATTERS
(a) There are no material actions, suits, proceedings, arbitrations or
investigations pending or, to Whitney's knowledge threatened, against any member
of Whitney's consolidated group that would be required to be disclosed in a Form
10-K or Form 10-Q pursuant to Item 103 of Regulation S-K of the SEC's Rules and
Regulations that are not so disclosed.
(b) There are no material uncured violations, or violations with respect
to which material refunds or restitution may be required, cited in any
compliance report to any member of Whitney's consolidated group as a result of
examination by any bank or bank holding company regulatory authority.
(c) No member of Whitney's consolidated group is subject to any written
agreement, memorandum or order or decree with or by any bank or bank holding
company regulatory authority, nor has any member of Whitney's consolidated group
been advised by any regulatory agency that it is considering issuing or
requesting any such written agreement, memorandum, letter, order or decree.
4.09. COMMUNITY REINVESTMENT ACT
WNB has complied in all material respects with the provisions of the CRA
and the rules and regulations thereunder, has a CRA rating of not less than
"satisfactory," and has received no material criticism from regulators with
respect to discriminatory lending practices, and has no knowledge of any
conditions or circumstances that are likely to result in CRA ratings of less
than "satisfactory" or material criticism from regulators with respect to
discriminatory lending practices.
4.10. ACCURACY OF STATEMENTS
No warranty or representation made or to be made by any member of
Whitney's consolidated group in this Agreement or in any document furnished or
to be furnished by any member of Whitney's consolidated group pursuant to this
Agreement contains or will contain, as of the date of this Agreement, the
effective date of the Registration Statement and the Closing Date, an untrue
statement of a material fact or an omission of a material fact necessary to make
the statements contained herein and therein, in light of the circumstances in
which they are made, not misleading.
SECTION 5. COVENANTS AND CONDUCT OF PARTIES PRIOR TO THE EFFECTIVE DATE
The parties further covenant and agree as follows:
5.01. INVESTIGATIONS; PLANNING
Each member of Holding's consolidated group shall provide to Whitney and
WNB and to their authorized representatives full access during all reasonable
times to its employees, premises, properties,
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books and records (including, without limitation, all corporate minutes and
stock transfer records), and to furnish Whitney and WNB and such representatives
with such financial and operating data and other information of any kind
respecting its business and properties as Whitney and WNB shall from time to
time reasonably request. Any investigation shall be conducted in a manner that
does not unreasonably interfere with the operation of the business of Holding's
consolidated group. Each member of Holding's consolidated group agrees to
cooperate, and to cause its employees to cooperate, with Whitney and WNB in
connection with planning for the efficient and orderly combination of the
parties and the operation of Whitney and WNB (and, if applicable, the Bank)
after consummation of the Mergers. In the event of termination of this Agreement
prior to the Effective Date, each party shall, except to any extent necessary to
assert any rights under this Agreement or the Bank Merger Agreement, return,
without retaining copies thereof, or destroy (and certify to same under penalty
of perjury) all confidential or nonpublic documents, work papers and other
materials obtained from the other party in connection with the transactions
contemplated hereby and shall keep such information confidential, not disclose
such information to any other person or entity except as may be required by
legal process, and not use such information in connection with its business (in
each case the party providing the information is referred to as the "Providing
Party" and the party receiving such information is referred to as the "Receiving
Party"); provided, that such confidential information does not include
information which (i) is or becomes generally available to the public other than
as a result of a disclosure by the Receiving Party or its representatives, (ii)
was available to the Receiving Party on a nonconfidential basis prior to its
disclosure by the Providing Party to the Receiving Party or its representatives,
or (iii) becomes available to the Receiving Party on a nonconfidential basis
from a source other than the Providing Party or its representatives, provided
further that such source is not known by the Receiving Party to be bound, by,
nor to the Receiving Party's knowledge does such disclosure breach, directly or
indirectly, a confidentiality agreement with the Providing Party or its
representatives. Immediately following the Effective Time, that certain
Confidentiality Agreement, dated June 14, 2005, entered into between Whitney and
Xxxxx, on behalf of Holding and the Bank (the "Confidentiality Agreement"),
shall terminate and be of no further force and effect. Furthermore, at the
Effective Time, Holding and the Bank will, and will cause Xxxxx to transfer,
assign and deliver each of the confidentiality agreements entered into by
Holding, the Bank and/or Xxxxx on behalf of Holding and Bank in connection with
a potential Acquisition Transaction (as defined in Section 7.01(e)). Whitney and
WNB shall continue to provide Holding's executive officers with access to
Whitney's and WNB's respective executive officers, during normal business hours
and upon reasonable notice, to discuss the business and affairs of Whitney and
WNB to the extent customary in transactions of the nature contemplated by this
Agreement.
5.02. DELIVERY OF SCHEDULES OF EXCEPTIONS; DUE DILIGENCE
Whitney and Holding stipulate that they have entered into this Agreement
concurrently with Holding's delivery of its consolidated group's schedule of
exceptions to this Agreement (the "Schedule of Exceptions"), but prior to
Whitney's completion of Whitney's customary due diligence investigation of
Holding and the Bank. Whitney's due diligence review (which shall include, but
not be limited to, a review and verification of the Schedules of Exception, the
Holding SEC Reports, the Confidential Information Memorandum regarding Holding
and the Bank provided to Whitney by Xxxxx, and all due diligence materials of
Holding and the Bank) shall be concluded during the period commencing on the
date of this Agreement and ending 29 calendar days from the date hereof (the
"Review Period"). At or prior to expiration of the Review Period, Whitney shall
elect, by written notice to Holding, to either (a) proceed to the Closing
(subject to the satisfaction or waiver of all other conditions to Closing) and
indicate its acceptance of the Schedule of Exceptions by initialing the
Schedules on behalf of Whitney and WNB, at which time the Schedules shall be
appended hereto and form a part hereof for all purposes
29
or (b) terminate the Agreement (without liability to Holding or the Bank) if, in
its sole and absolute discretion, Whitney is not satisfied with the results of
such due diligence review. Absent timely delivery of written notice electing to
terminate this Agreement, Whitney shall be deemed to have elected to proceed to
the Closing, subject to all other terms and conditions of this Agreement.
5.03. COOPERATION AND COMMERCIALLY REASONABLE EFFORTS
Each of the parties hereto will cooperate with the other parties and use
all commercially reasonable efforts to (a) procure all necessary consents and
approvals of third parties, (b) complete all necessary filings, registrations,
applications, schedules and certificates, (c) satisfy all requirements
prescribed by law for, and all conditions set forth in this Agreement to, the
consummation of the Mergers and the transactions contemplated hereby and by the
Bank Merger Agreement, and (d) effect the transactions contemplated by this
Agreement and the Bank Merger Agreement at the earliest practicable date subject
to the proviso contained in Section 1.02 hereof. Holding and the Bank shall
provide Whitney and WNB full and complete access to all their third party
vendors and shall consult Whitney and WNB prior to negotiating new third party
vendor agreements or amendments to or modifications of existing third party
agreements.
5.04. INFORMATION FOR, AND PREPARATION OF, REGISTRATION STATEMENT AND
PROXY STATEMENT
Each of the parties hereto will cooperate in the preparation of the
Registration Statement referred to in Section 5.15 and a proxy statement of
Holding (the "Proxy Statement") that complies with the requirements of the
Securities Act, the Exchange Act, the rules and regulations promulgated
thereunder and other applicable federal and state laws, for the purpose of
submitting this Agreement and the transactions contemplated hereby to Holding's
shareholders for approval. Each of the parties will as promptly as practicable
after the date hereof furnish all such data and information relating to it and
its subsidiaries as any of the other parties may reasonably request for the
purpose of including such data and information in the Registration Statement and
the Proxy Statement. None of the information to be supplied by Holding for
inclusion or incorporation by reference in (i) the Registration Statement will,
at the time the Registration Statement becomes effective under the Securities
Act, 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, (ii) the Proxy Statement will, at the date it is first
mailed to Holding's shareholders and at the time of the Holding shareholders'
meeting (except to the extent amended or supplemented by a subsequent
communication), 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 were
made, not misleading or (iii) any other document filed with any other regulatory
agency in connection herewith will, at the time such document is filed, fail to
comply as to form in all material respects with the provisions of applicable
law. The Proxy Statement will comply as to form in all material respects with
the requirements of the Exchange Act and the rules and regulations thereunder,
except that no representation or warranty is made by Holding with respect to
statements made or incorporated by reference therein based on information
supplied by Whitney or WNB for inclusion or incorporation by reference in the
Proxy Statement.
5.05. APPROVAL OF BANK MERGER AGREEMENT
Whitney, as the sole shareholder of WNB, shall take all action necessary
to effect shareholder approval of the Bank Merger Agreement, subject to its
right to delay consummation of the Bank Merger in accordance with Section 1.02.
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5.06. PRESS RELEASES; SHAREHOLDER COMMUNICATIONS
Whitney and Holding will cooperate with each other in the preparation of
any press releases, other public statement or shareholder communication
announcing the execution of this Agreement, the termination of this Agreement
(if terminated) or the transactions contemplated hereby. Without the prior
written consent of the chief executive officer of the other party, no member of
Holding's consolidated group or Whitney's consolidated group will issue any
press release or other written statement for general circulation, or any other
public statement or shareholder communication relating to the execution or
termination of this Agreement or the transactions contemplated hereby, except as
may otherwise be required by law in the reasonable judgment of the disclosing
party and, if practical, prior notice of such release is provided to the other
parties.
5.07. PRESERVATION OF BUSINESS
Each member of Holding's consolidated group will use its best efforts to
preserve the possession and control of all of its assets other than those
consumed or disposed of for value in the ordinary course of business, to
preserve the goodwill of customers and others having business relations with it
and to do nothing knowingly to impair its ability to keep and preserve its
business as it exists on the date of this Agreement.
5.08. CONDUCT OF BUSINESS IN THE ORDINARY COURSE
Each member of Holding's consolidated group shall conduct its business
only in the ordinary course consistent with past practices, and shall not,
without the prior written consent of the chief executive officer of Whitney or
his duly authorized designee:
(a) except as set forth in proviso to this Section 5.08(a), declare, set
aside, increase or pay any dividend, or declare or make any distribution on, or
directly or indirectly combine, redeem, reclassify, purchase, or otherwise
acquire, any shares of its capital stock or authorize the creation or issuance
of or issue any additional shares of its capital stock or any securities or
obligations convertible into or exchangeable for its capital stock, other than
in connection with the issuance of shares of Holding Common Stock pursuant to
the exercise of Holding Stock Options outstanding as of the date of this
Agreement; provided, that solely in the event that all conditions set forth in
subparagraphs (a), (b), (c) and (d) of Section 6.01 and Section 6.02 hereof
(except for conditions that are intended to be satisfied on the Closing Date)
have been satisfied prior to March 15, 2006 but the Closing does not occur in
March 2006 solely as a result of the requirements set forth in the first
sentence of Section 1.02, Holding shall be permitted to declare and pay a cash
dividend to the shareholders of record of Holding as of March 31, 2006 in an
amount equal to $0.1625 per share of Holding Common Stock outstanding on such
record date.
(b) amend its articles of incorporation or association or by-laws or adopt
or amend any resolution or agreement concerning indemnification of its directors
or officers;
(c) enter into or modify any agreement so as to require the payment,
conditionally or otherwise, of any salary, bonus, additional employee benefits,
extra compensation (including payments for unused vacation or sick time),
pension or severance payment to any of its present or former directors, officers
or employees except such agreements as are terminable at will without any
penalty or other
31
payment by it, or increase the compensation (including salaries, fees, bonuses,
profit sharing, incentive, pension, retirement or other similar benefits and
payments) of any such person in any manner inconsistent with its past practices;
(d) except in the ordinary course of business consistent with past
practices, place or suffer to exist on any of its assets or properties any
mortgage, pledge, lien, charge or other encumbrance, except those of the
character described in clauses (i) through (iv) of subsection 3.09(a) hereof,
terminate or allow to be terminated any of the policies of insurance it
maintains on its business or property, cancel any material indebtedness owing to
it or any claims that it may have possessed, or waive any right of substantial
value or discharge or satisfy any material noncurrent liability;
(e) acquire another business or merge or consolidate with another entity,
or sell or otherwise dispose of a material part of its assets or, except in the
ordinary course of business consistent with past practices;
(f) commit any act that is intended or reasonably may be expected to
result in any of its representations and warranties set forth in this Agreement
being or becoming untrue in any material respect, or in any of the conditions to
the Mergers set forth in Section 6 not being satisfied, or in a violation of any
provision of this Agreement, except, in every case, as may be required by
applicable law;
(g) commit or fail to take any act which act or omission is intended or
reasonably may be expected to result in a material breach or violation of any
applicable law, statute, rule, governmental regulation or order;
(h) fail to maintain its books, accounts and records in the usual manner
on a basis consistent with that heretofore employed;
(i) fail to pay, or to make adequate provision in all material respects
for the payment of, all taxes, interest payments and penalties due and payable
(for all periods up to the Effective Date, including that portion of its fiscal
year to and including the Effective Date) to any city, county, state, the United
States or any other taxing authority, except those being contested in good faith
by appropriate proceedings and for which sufficient reserves have been
established;
(j) dispose of investment securities in amounts or in a manner
inconsistent with past practices; or make investments in noninvestment grade
securities or that are inconsistent with past investment practices;
(k) enter into any new line of banking or nonbanking business in which it
is not actively engaged as of the date of this Agreement;
(l) (i) charge off (except as may otherwise be required by law or by
regulatory authorities or by GAAP consistently applied) or sell (except in the
ordinary course of business consistent with past practices) any of its portfolio
of loans, discounts or financing leases, or (ii) sell any asset held as other
real estate or other foreclosed assets for an amount materially less than 100%
of its book value;
(m) make any extension of credit that, when added to all other extensions
of credit to a borrower and its affiliates, would exceed any member of Holding's
consolidated group's applicable regulatory lending limits;
32
(n) make any material change to its accounting methods, principles,
practices, policies or procedures, except as required by GAAP or the FDIC;
(o) take or cause to be taken any action that would disqualify the Mergers
as a "reorganization" within the meaning of Section 368(a) of the Code; or
(p) agree or commit to do any of the foregoing.
5.09. ADDITIONAL INFORMATION.
Holding will provide Whitney with prompt written notice of any material
adverse change in the financial condition, results of operations, business or
prospects of any member of Holding's consolidated group, or any material action
taken or proposed to be taken by any regulatory agency with respect to Holding
or a member of its consolidated group. Holding will provide Whitney and Whitney
will provide Holding with (a) prompt written notice of any breach by any member
of such party's consolidated group of any of its warranties, representations or
covenants in this Agreement, (b) any fact, event or circumstance that would, in
the reasonable judgment of Holding, adversely affect or interfere with the
transactions contemplated by this Agreement or would cause a warranty,
representation or covenant of Holding or the Bank to be breached as of the
Closing Date, (c) as soon as they become available, as to Holding and the Bank,
true and complete copies of any examination reports, financial statements,
reports and other documents of the type referred to in Section 3.04, and
quarterly unaudited consolidated balance sheets of Holding and its subsidiaries,
and the related unaudited statements of income, shareholders' equity and cash
flows for the periods then ended, with respect to Holding and its subsidiaries;
and, as to Whitney, true and complete copies of financial statements, reports
and other documents of the type referred to in Sections 4.04 and 4.06, with
respect to Whitney and its subsidiaries, and (d) promptly upon its
dissemination, any report disseminated to their respective shareholders.
Following the date hereof, Holding and the Bank will provide, within 10 calendar
days of each month's end, reports and financial data on a monthly basis to
Whitney and WNB. Such reports and financial data will provide a detailed listing
of all loans, discounts, and financing leases, along with the investment
portfolios of each member of Holding's consolidated group as of each month end.
The reports and financial data will include analysis, with respect to each loan,
note or borrowing, including any loan guaranty, addressing (i) delinquencies by
more than 30 days in the payment of principal or interest, (ii) any material
defaults for more than 30 days, (iii) all classifications of "substandard,"
"doubtful," "loss," "other assets especially mentioned," or any comparable
classification by any of member of Holding's consolidated group or the FDIC, the
Federal Reserve Board, or the OCC, (iv) any obligation of any director, officer,
or 10% shareholder of any member of Holding's consolidated group that is subject
to Regulation O of the Federal Reserve Board, or any person, corporation, or
enterprise controlling, controlled by or under common control with any of the
foregoing, or (v) any loans, notes, borrowings, including loan guaranties, made
in violation of any law, regulation, or rule of any governmental authority,
other than those that are immaterial in amount.
5.10. HOLDING SHAREHOLDER APPROVAL
Holding's Board of Directors shall submit this Agreement to its
shareholders for approval in accordance with the applicable law, together with
its recommendation that such approval be given, at a special meeting of the
shareholders of Holding duly called and convened for that purpose after the
effective date of the Registration Statement to be held on a date mutually
acceptable to Whitney and
33
Holding. Holding, as the sole shareholder of the Bank, shall take all action to
effect shareholder approval of the Bank Merger Agreement. The foregoing
obligations of Holding and its Board of Directors specified in this Section 5.10
are subject to the proviso in the second to last sentence of Section 5.13.
5.11. AFFILIATE AGREEMENTS; SHAREHOLDER'S COMMITMENT.
(a) Holding shall obtain and deliver to Whitney, no later than the Holding
shareholders' meeting, from each person who is a director or executive officer
of Holding who is eligible to receive shares of Whitney Common Stock by virtue
of the Company Merger written agreements, in the forms attached as Exhibit
5.11(a) hereto, to the effect that such person (i) has not disposed of any
Holding Common Stock, (ii) will not dispose of any Holding Common Stock, and
(iii) will not dispose of any Whitney Common Stock received pursuant to the
Company Merger in violation of Rule 145 of the Securities Act or the rules and
regulations of the SEC thereunder or in a manner that would disqualify the
transactions contemplated hereby tax-free reorganization treatment (the
"Affiliate Agreement").
(b) Holding shall use all commercially reasonable efforts to obtain and
deliver to Whitney, a written agreement in the form attached as Exhibit 5.11(b)
hereto from each person who is not a director or executive officer of Holding or
the Bank and who is a 5% or greater beneficial owner of securities of Holding
who is eligible to receive shares of Whitney Common Stock by virtue of the
Company Merger to the effect that such person (i) has not disposed of any
Holding Common Stock, (ii) will not dispose of any Holding Common Stock, and
(iii) will not dispose of any Whitney Common Stock received pursuant to the
Company Merger in violation of Rule 145 of the Securities Act or the rules and
regulations of the SEC thereunder or in a manner that would disqualify the
transactions contemplated hereby from receiving tax-free reorganization
treatment (the "Shareholder's Commitment").
5.12. LOAN POLICY
From the date hereof through the Effective Time, neither Holding nor the
Bank will make any loans, or enter into any commitments to make loans, which
vary other than in immaterial respects from its written loan policies, a true
and correct copy of which loan policies has been provided to Whitney, provided
that this covenant shall not prohibit the Bank from extending or renewing credit
or loans in the ordinary course of business consistent with past lending
practices or in connection with the workout or renegotiation of loans currently
in its loan portfolio. Concurrent with the execution of this Agreement, Holding
shall provide Whitney a calendar of any board or committee meetings of the Bank
at which the board or any committee will vote on proposed new or renewal loans
or investments. Holding and the Bank will allow a representative of WNB to be
present at all such meetings for informational purposes only and such WNB
representative shall not take part in discussions or voting on any matters
presented at such meetings.
5.13. NO SOLICITATIONS
Prior to the Effective Time or until the termination of this Agreement, no
member of Holding's consolidated group shall, without the prior approval of
Whitney: (a) directly or indirectly, solicit or initiate inquiries or proposals
with respect to any Acquisition Transaction, or (b) except to the extent
determined by the Board of Directors of Holding in good faith, after
consultation with its financial advisors and its legal counsel, to be required
to discharge properly the directors' fiduciary duties to Holding's consolidated
group and its shareholders, (i) furnish any information relating to, or
participate in any negotiations or discussions concerning, any Acquisition
Transaction or any other acquisition or
34
purchase of all or a substantial portion of its assets, or of a substantial
equity interest in it, (ii) withdraw its recommendation to the shareholders of
Holding of the Company Merger, or (iii) make a recommendation of any other
Acquisition Transaction, or any other business combination with it, other than
as contemplated by this Agreement (and in no event will any such information be
supplied except pursuant to a confidentiality agreement in form and substance
substantially the same as the Confidentiality Agreement). Each member of
Holding's consolidated group shall instruct its officers, directors, agents and
affiliates to refrain from doing any of the foregoing, and will notify Whitney
immediately if any such inquiries or proposals are received by it, any such
information is requested from it, or any such negotiations or discussions are
sought to be initiated with it or any of its officers, directors, agents and
affiliates; provided, however, that nothing contained herein shall be deemed to
prohibit any officer or director of any member of Holding's consolidated group
from taking any action that the Board of Directors of such member, as the case
may be, determines, in good faith after consultation with outside legal counsel,
is required by law or is required to discharge his fiduciary duties to Holding's
consolidated group and Holding's shareholders. Holding and the Bank shall
immediately cease and cause to be terminated all existing discussions or
negotiations with any persons conducted heretofore with respect to any
Acquisition Transaction.
5.14. OPERATING FUNCTIONS
Each member of Holding's consolidated group agrees to cooperate in the
consolidation of appropriate operating functions with Whitney to be effective on
the Effective Date, provided that the foregoing shall not be deemed to require
any action that, in the opinion of such member's Board of Directors, would
adversely affect its operations if the Mergers were not consummated.
5.15. WHITNEY REGISTRATION STATEMENT
(a) Whitney will promptly prepare and file on Form S-4 a registration
statement (the "Registration Statement") under the Securities Act (which will
include the Proxy Statement) complying with all the requirements of the
Securities Act (and the rules and regulations thereunder) applicable thereto,
for the purpose, among other things, of registering the Whitney Common Stock
that will be issued to the holders of Holding Common Stock pursuant to the
Company Merger; provided, however, that Whitney shall not be required to file
the Registration Statement until Whitney determines that any offerings of
Whitney Common Stock being made by Whitney pursuant to Section 4(2) of the
Securities Act (as disclosed to Holding on Schedule 5.15(a)) are either
completed or terminated. Subject to the foregoing proviso, Whitney shall use
commercially reasonable efforts to cause the Registration Statement to become
effective as soon as practicable, to qualify the Whitney Common Stock under the
securities or blue sky laws of such jurisdictions as may be required and to keep
the Registration Statement and such qualifications current and in effect for so
long as is necessary to consummate the transactions contemplated hereby. As a
result of the registration of the Whitney Common Stock pursuant to the
Registration Statement, such stock shall be freely tradeable by the shareholders
of Holding except to the extent that the transfer of any shares of Whitney
Common Stock received by shareholders of Holding is subject to the provisions of
Rule 145 under the Securities Act or restricted under applicable tax rules.
Holding and its counsel shall have reasonable opportunity to review and comment
on the Registration Statement being filed with the SEC and any responses filed
with the SEC regarding the Registration Statement.
(b) Whitney will indemnify and hold harmless each member of Holding's
consolidated group and each of their respective directors, officers and other
persons, if any, who control Holding within
35
meaning of the Securities Act from and against any losses, claims, damages,
liabilities or judgments, joint or several, to which they or any of them may
become subject, insofar as such losses, claims, damages, liabilities, or
judgments (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, or in any amendment or supplement thereto, or in any
state application for qualification, permit, exemption or registration as a
broker/dealer, or in any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each such person for any legal or other expenses
reasonably incurred by such person in connection with investigating or defending
any such action or claim; provided, however, that Whitney shall not be liable,
in any such case, to the extent that any such loss, claim, damage, liability, or
judgment (or action in respect thereof) arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, or any such amendment or supplement thereto,
or in any such state application, or in any amendment or supplement thereto, in
reliance upon and in conformity with information furnished to Whitney by or on
behalf of any member of Holding's consolidated group or any officer, director or
affiliate of any such member for use therein.
(c) Promptly after receipt by an indemnified party under subparagraph (b)
above of notice of the commencement of any action, such indemnified party shall,
if a claim in respect thereof is to be made against Whitney under such
subparagraph, notify Whitney in writing of the commencement thereof. In case any
such action shall be brought against any indemnified party and it shall notify
Whitney of the commencement thereof, Whitney shall be entitled to participate
therein and, to the extent that it shall wish, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party, and, after
notice from Whitney to such indemnified party of its election so to assume the
defense thereof, Whitney shall not be liable to such indemnified party under
such subparagraph for any legal expenses of other counsel or any other expenses
subsequently incurred by such indemnified party; provided, however, if Whitney
elects not to assume such defense or if counsel for the indemnified party
advises Whitney in writing that there are material substantive issues that raise
conflicts of interest between Whitney or Holding and the indemnified party, such
indemnified party may retain counsel satisfactory to it and Whitney shall pay
all reasonable fees and expenses of such counsel for the indemnified party
promptly as statements therefor are received. Notwithstanding the foregoing,
Whitney shall not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by Whitney in respect of such claim unless
in the reasonable judgment of any such indemnified party a conflict of interest
exists between such indemnified party and any other of such indemnified parties
in respect to such claims.
(d) The provisions of subsection 5.15(b) and (c) are intended for the
benefit of, and shall be enforceable by, the parties entitled to indemnification
thereunder and each such party's heirs, representatives or successors.
5.16. APPLICATION TO REGULATORY AUTHORITIES
Whitney shall prepare and, on or before October 24, 2005, file all
regulatory applications and filings that are required to be made with respect to
the Mergers, subject to its right to delay consummation of the Bank Merger in
accordance with Section 1.02; provided, however, that if Whitney is unable to
prepare and file such applications and filings in a prompt manner due to the
failure of either Holding or the Bank to timely provide Whitney any information
necessary to complete such applications and filings, or for any other reason
outside of Whitney's control, then Whitney's failure to comply with the
provisions of this Section 5.16 shall not be deemed a breach of the Agreement.
Whitney shall provide Holding
36
copies of all such regulatory applications and filings at the time of filing
with the appropriate regulatory agency.
5.17. REVENUE RULING
Whitney may elect to prepare (and in that event Holding shall cooperate in
the preparation of) a request for a ruling from the Internal Revenue Service
with respect to certain tax matters in connection with the transactions
contemplated by this Agreement and the Bank Merger Agreement.
5.18. BOND FOR LOST CERTIFICATES
Upon receipt of notice from any of its shareholders that a Holding
Certificate has been lost or destroyed, and prior to issuing a new certificate,
Holding shall require such shareholder to post a bond in such amount as is
sufficient to support the shareholder's agreement to indemnify Holding against
any claim made by the owner of such Holding Certificate, unless Whitney agrees
to the waiver of such bond requirement.
5.19. WITHHOLDING
Whitney shall be entitled to deduct and withhold from the consideration
otherwise payable to any holder of Holding Common Stock after the Effective Time
such amounts as Whitney may be required by law to deduct and withhold therefrom.
All such deductions and withholdings shall be deemed for all purposes of this
Agreement to have been paid to the person with respect to whom such deduction
and withholding was made.
5.20. APPRAISAL RIGHTS
Holding shall give Whitney (i) prompt written notice of, and a copy of,
any instrument received by Holding with respect to the assertion or perfection
of appraisal rights, and (ii) the opportunity to participate in any and all
negotiations and proceedings with respect to appraisal rights, should Whitney
desire to do so.
5.21. NASDAQ STOCK MARKET
Whitney shall cause the shares of Whitney Common Stock to be issued in the
Company Merger to be duly authorized, validly issued, fully paid and
nonassessable, free of any preemptive or similar right and to be approved for
quotation in the National Market System of the Nasdaq Stock Market, Inc.
("Nasdaq") prior to or at the Effective Time.
5.22. CONTINUING INDEMNITY; INSURANCE
Whitney covenants and agrees that:
(a) all rights to indemnification (including, without limitation, rights
to mandatory advancement of expenses) and all limitations of liability existing
in favor of indemnified parties under Holding's Articles of Incorporation and
Bylaws and in the Articles of Incorporation and Bylaws of the Bank (as the case
may be) as in effect as of the date of this Agreement with respect to matters
occurring prior to or at the Effective Time (an "Indemnified Party") shall
survive the Company Merger and shall continue in full force and effect, without
any amendment thereto, for a period concurrent with the
37
applicable statute of limitations; provided, however, that all rights to
indemnification in respect of any claim asserted or made as to which Whitney is
notified in writing within such period shall continue until the final
disposition of such claim. Without limiting the foregoing, in any case in which
approval is required to effectuate any indemnification, the determination of any
such approval shall be made, at the election of the Indemnified Party, by
independent counsel mutually agreed upon between Whitney and the Indemnified
Party.
(b) Promptly after receipt by an Indemnified Party of notice of the
commencement of any action, such Indemnified Party shall, if a claim in respect
thereof is to be made against Whitney under such subparagraph, notify Whitney in
writing of the commencement thereof. In case any such action shall be brought
against any Indemnified Party, Whitney shall be entitled to participate therein
and, to the extent that it shall wish, to assume the defense thereof, with
counsel reasonably satisfactory to such Indemnified Party, and, after notice
from Whitney to such Indemnified Party of its election so to assume the defense
thereof, Whitney shall not be liable to such Indemnified Party under such
subparagraph for any legal expenses of other counsel or any other expenses
subsequently incurred by such Indemnified Party; provided, however, if Whitney
elects not to assume such defense or if counsel for the Indemnified Party
advises Whitney in writing that there are material substantive issues that raise
conflicts of interest between Whitney or Holding and the Indemnified Party, such
Indemnified Party may retain counsel satisfactory to it, and Whitney shall pay
all reasonable fees and expenses of such counsel for the Indemnified Party
promptly as statements therefor are received. Notwithstanding the foregoing,
Whitney shall not be obligated to pay the fees and expenses of more than one
counsel for all Indemnified Parties in respect of such claim unless in the
reasonable judgment of an Indemnified Party a conflict of interest exists
between an Indemnified Party and any other Indemnified Parties in respect to
such claims.
(c) Whitney shall cause the persons serving as officers or directors of
Holding or the Bank, immediately prior to the Effective Time to be covered for a
period of three years from the Effective Time by the directors' and officers'
liability insurance policy maintained by Holding and the Bank with respect to
acts or omissions occurring prior to or at the respective effective times that
were committed by such officers and directors in their capacity as such;
provided that the aggregate premium to be paid by Holding and the Bank for such
insurance shall not exceed 150% of the most current annual premium paid by
Holding and the Bank, for its directors and officers liability insurance,
without Whitney's prior approval.
(d) If Whitney or any of its successors or assigns (i) shall consolidate
with or merge into any corporation or entity and shall not be the continuing or
surviving corporation or entity of such consolidation or merger or (ii) shall
transfer all or substantially all of its properties and assets to any
individual, corporation or other entity, then and in each such case, proper
provisions shall be made so that the successors and assigns of Whitney shall
assume the obligations set forth in this Section 5.22.
(e) The provisions of this Section 5.22 are intended to be for the benefit
of, and shall be enforceable by, each Indemnified Party and his or her heirs and
representatives.
5.23. EMPLOYEES AND CERTAIN OTHER MATTERS
(a) All employees of Holding and the Bank shall become or remain employees
of the Bank upon consummation of the Company Merger, and upon consummation of
the Bank Merger all employees of the Bank at the effective time of the Bank
Merger shall become employees of WNB. Whitney, the Bank and WNB reserve the
right to terminate any such employee, and to modify the job duties,
38
compensation and authority of such employee, subject to payment of any severance
pay or other termination benefits due under terms of employment contracts with
Holding or the Bank set forth on Schedule 5.23(a) of the Schedule of Exceptions.
At the Effective Time, all such employees shall be eligible for such employee
benefits as are generally available to employees of WNB having like tenure,
officer status and compensation levels (including without limitation benefits
under WNB's Severance Pay Policy as detailed in WNB Human Resource Policies and
Procedures No. 4.03) except (i) all executive and senior level management
bonuses, stock options, restricted stock and similar benefits shall be at the
discretion of Whitney's Compensation and Human Resources Committee and (ii) all
such employees shall be given full credit for all prior service (including, but
not limited to, credit towards satisfaction of any waiting periods under
Whitney's or WNB's health and welfare plans) as employees of Holding or the
Bank; provided, however, that all such employees shall be treated as newly hired
WNB employees for purposes of benefit accrual under Whitney's or WNB's defined
benefit pension plan and post-retirement medical plan but shall receive full
credit for all prior service as employees of Holding or the Bank for purposes of
vesting. Prior to the Effective Time, the Board of Directors of Holding shall
adopt resolutions approving the termination of its existing defined benefit
Pension Plan (the "Holding Defined Benefit Plan") and freezing the Holding
Defined Benefit Plan as of December 31, 2005. After the Holding Defined Benefit
Plan is terminated, Whitney shall cause the benefits accrued thereunder to be
distributed to the participants in such plan pursuant to applicable law. Whitney
or WNB may apply any pre-existing condition exclusion under its health plan(s)
for which any employees of Holding, the Bank become eligible to participate, but
only to the extent such exclusion does not exceed in duration the corresponding
provision under the health plan maintained by Holding or the Bank, as
applicable, under which such employees were covered as of the Effective Date and
applying periods of creditable coverage under the Bank's group health plan
against such pre-existing exclusions or similar waiting periods. Whitney and
WNB, through its medical and dental plan underwriters, shall use their
respective commercially reasonable efforts to provide employees and enrolled
dependents credit for all eligible expenses incurred within the calendar year
under plans maintained by Holding or the Bank for purposes of satisfying annual
deductibles and out-of-pocket maximums under Whitney's plans. Employees of
Holding and the Bank are solely responsible for supplying satisfactory proof of
previously incurred expenses to Whitney's and WNB's plan underwriters.
(b) (1) Holding or the Bank shall make a cash contribution to the Holding
Defined Benefit Plan, no later than the earlier of (i) the business day before
the Effective Time or (ii) the actual filing date of Holding's tax return for
fiscal year 2005, in an amount equal to the maximum amount that can be deducted
by Holding or the Bank on their consolidated federal income tax return for the
fiscal year ending December 31, 2005 under Section 404 of the Code, (i) taking
into account all previous contributions made for such year and all prior years,
and (ii) using the same actuarial funding methods used to determine the minimum
contribution to the Holding Defined Benefit Plan under Section 412 of the Code
for the most recent plan year for which a form 5500 has been filed as of the
date of this Agreement, and (iii) using, to the extent permitted by law,
actuarial assumptions that are the same as, or determined consistently with, the
actuarial assumptions used to determine the minimum contribution to the Holding
Defined Benefit Plan under Section 412 of the Code for the most recent plan year
for which a form 5500 has been filed as of the date of this Agreement.
(2)As soon as practicable after January 1, 2006, but no later than
January 31, 2006, Holding or the Bank shall obtain from the enrolled actuary for
the Plan (the "Actuary") an estimate of the "current liability" (as defined in
Section 302(d)(7) of ERISA as in effect on January 1, 2006) ("Current
Liability") of the Plan as of January 1, 2006. Such estimated Current Liability
shall be made using the
39
most recent employee census data available to the Actuary, provided that if it
is not practical for the Actuary to use employee census data as of January 1,
2006, the Actuary may use census data as of January 1, 2005 and roll forward the
estimate of liabilities using reasonable methods consistent with such estimates
made in accordance with Statement Number 87 of the Financial Accounting
Standards Board. Such estimated Current Liability shall use actuarial methods
and assumptions that are consistent with the methods and assumptions used in the
actuarial valuation of Holding Defined Benefit Plan as of January 1, 2005 for
purposes of the funding standard account under Section 412 of the Code except to
the extent that different interest rate assumptions are required by law and to
the extent that different assumptions or methods may be required due to changes
in law or regulation or because the assumptions or methods previously used are
no longer reasonable. If the estimated Current Liability as of January 1, 2006,
exceeds the fair market value of the Plan's assets as of December 31, 2005
(after giving effect to the contribution made pursuant to Section 5.23(b)(1)),
by more than $500,000, then such amount in excess of $500,000 shall be referred
as the "Pension Shortfall Amount."
5.24. WHITNEY CONDUCT OF BUSINESS
From the date hereof through the Closing, without the prior written
consent of the chief executive officer of Holding or his duly authorized
designee, Whitney shall not take or cause to be taken any action that would
disqualify the Mergers as a "reorganization" within the meaning of Section
368(a) of the Code.
5.25. HOLDING STOCK OPTIONS
Prior to the Effective Time, Holding shall cause each outstanding Holding
Stock Option to be exercised in accordance with its terms, or it shall terminate
such Holding Stock Options as provided in Section 2.01(i).
SECTION 6. CONDITIONS OF CLOSING
6.01. CONDITIONS OF ALL PARTIES
The obligations of each of the parties hereto to consummate the Company
Merger are subject to the satisfaction of the following conditions at or prior
to the Closing:
(a) Shareholder Approval. This Agreement and the Company Merger shall have
been duly approved by the shareholders of Holding.
(b) Effective Registration Statement. The Registration Statement shall
have become effective prior to the mailing of the Proxy Statement, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued, and no proceedings for that purpose shall have been instituted or, to
the knowledge of any party, shall be contemplated, and Whitney shall have
received all state securities laws permits and authorizations necessary to
consummate the transactions contemplated hereby.
(c) No Restraining Action. No action or proceeding shall have been
threatened or instituted before a court or other governmental body to restrain
or prohibit the transactions contemplated by this Agreement or the Bank Merger
Agreement or to obtain damages or other relief in connection with the execution
of such agreements or the consummation of the transactions contemplated hereby
or thereby;
40
and no governmental agency shall have given notice to any party hereto to the
effect that consummation of the transactions contemplated by this Agreement or
the Bank Merger Agreement would constitute a violation of any law or that it
intends to commence proceedings to restrain consummation of the Mergers.
(d) Statutory Requirements and Regulatory Approval. All statutory
requirements for the valid consummation of the transactions contemplated by this
Agreement and the Bank Merger Agreement shall have been fulfilled; all
appropriate orders, consents and approvals from all regulatory agencies and
other governmental authorities whose order, consent or approval is required by
law for the consummation of the transactions contemplated by this Agreement and
the Bank Merger Agreement shall have been received; and the terms of all
requisite orders, consents and approvals shall then permit the effectuation of
the Mergers without imposing any material conditions with respect thereto except
for any such conditions that are acceptable to Whitney, subject to the proviso
contained in Section 1.02.
(e) Tax Opinion. Whitney and Holding shall have received a written opinion
from Xxxxxx & Bird LLP in a form reasonably satisfactory to Whitney and Holding
(the "Tax Opinion"), dated the date of the Effective Time, substantially to the
effect that, (i) the Company Merger will constitute a reorganization within the
meaning of Section 368(a) of the Code and (ii) each of Whitney and Holding will
be a party to a reorganization within the meaning of Section 368(b) of the Code.
In rendering such Tax Opinion, such counsel shall be entitled to rely upon
representations of officers of Holding and Whitney reasonably satisfactory in
form and substance to such counsel.
6.02. ADDITIONAL CONDITIONS OF WHITNEY
The obligations of Whitney to consummate the Company Merger are also
subject to the satisfaction of the following additional conditions at or prior
to the Closing:
(a) Representations, Warranties and Covenants. The accuracy of the
representations and warranties of Holding and the Bank contained in this
Agreement shall be assessed as of the date of this Agreement and as of the
Closing Date with the same effect as though all such representations and
warranties had been made on and as of the Closing Date, except to the extent
they are confined to a specific date or to the extent changes are permitted by
the terms of this Agreement. There shall not exist inaccuracies in the
representations and warranties of Holding and the Bank contained in this
Agreement such that the aggregate effect of such inaccuracies would have, or
would be reasonably likely to have, a Material Adverse Effect on Holding and the
Bank taken as a whole; provided, that for purposes of this sentence only, those
representations and warranties that are qualified by reference to materiality or
knowledge shall be deemed not to include such qualifications. Each of Holding
and the Bank shall have in all material respects performed all obligations and
complied with all covenants required by this Agreement and the Bank Merger
Agreement to be performed or complied with by it at or prior to the Closing. In
addition, each of Holding and the Bank shall have delivered to Whitney and WNB a
certificate dated as of the Closing Date and signed by its chief executive
officer and chief financial officer (or their functional equivalents) to the
foregoing effect.
(b) No Material Adverse Change. There shall not have occurred any Material
Adverse Change from the date of the Holding Latest Balance Sheet to the Closing
Date with respect to the Bank or Holding's consolidated group; provided,
however, that (i) the incurrence by Holding of reasonable expenses in connection
with the Mergers (including fees and expenses of attorneys, accountants or other
consultants not to exceed $200,000 in the aggregate and the payment to Xxxxx of
amounts due to it in accordance with the Xxxxx Agreement (the "Permitted
Expenses")) and (ii) the occurrence of an event
41
specifically permitted under Section 5.08 are expressly deemed not to constitute
such a Material Adverse Change.
(c) Employment Agreement Terminations and Restrictive Covenant Agreements.
(i) Whitney shall have received from Xxxxxxx X. xxXxxx, III and Xxxx
X. Xxxxxxx executed Employment Agreement Termination and Restrictive Covenant
Agreements, in the form attached hereto as Exhibit 6.02(c)(i).
(ii) Whitney shall have received from Xxxxxx X. Xxxxxxx an executed
Employment Agreement Termination and Restrictive Covenant Agreement, in the form
attached hereto as Exhibit 6.02(c)(ii).
(d) Affiliate Agreements. Whitney shall have received an Affiliate
Agreement (as contemplated by and within the timeframe specified in Section
5.11(a)) from each person who serves as an executive officer or director of
Holding.
(e) Shareholder's Commitment. Whitney shall have received a Shareholder's
Commitment in the form specified on Exhibit 5.11(b) hereto (as contemplated by
Section 5.11(b)) from each person (other than director and executive officer)
who owns 5% or more of Holding Common Stock outstanding; and Whitney shall have
received from each such person a written confirmation dated not earlier than
five days prior to the Closing Date to the effect that each representation made
in such person's Shareholder's Commitment is true and correct as of the date of
such confirmation and that such person has complied with all of his or her
covenants therein through the date of such confirmation; in each case to the
extent necessary to ensure, in the reasonable judgment of Whitney compliance
with the tax-free reorganization treatment of the Company Merger and Rule 145
under the Securities Act.
(f) Exercise of Holding Stock Options. All outstanding Holding Stock
Options shall have been exercised or terminated as provided in Section 2.01(i)
and Holding's Board of Directors and shareholders shall have taken all action
necessary to terminate the Holding Stock Option Plans effective prior to the
Effective Time. No Holding Stock Options, whether vested or unvested, shall be
outstanding as of the Effective Time. In addition, Whitney shall have received
from each holder of a Holding Stock Option that exercises prior to the Effective
Time, an option termination agreement as provided in Section 2.01(i)(B).
(g) Regulatory Action. No adverse regulatory action shall be pending or
threatened against any member of Holding's consolidated group, including
(without limitation) any proposed amendment to any existing agreement,
memorandum, letter, order or decree, formal or informal, between any regulator
and any member of Holding's consolidated group, if such action would or could
impose any material liability on Whitney or interfere in any material respect
with the conduct of the businesses of Whitney's consolidated group following the
Mergers.
(h) Tax Consequences of the Mergers. Whitney shall have received
satisfactory assurances from Xxxxxx & Bird LLP that the consummation of the
Company Merger will not be a taxable event to Whitney or Holding.
42
(i) Third Party Consents. Holding shall have obtained the consent or
approval of those persons whose consent or approval shall be required in
connection with the Mergers under any material contract or material technology
contract of Holding or the Bank.
(j) Accountants' Letters. Whitney shall have received "comfort" letters
from Xxxxxxxxxxx, Smith, Leonard, Xxxxxxx & Stanell, P.A. dated, respectively,
within three (3) days prior to the date of the Proxy Statement and within three
(3) days prior to the Closing Date, in customary form for transactions of this
sort and in substance satisfactory to Whitney.
6.03. ADDITIONAL CONDITIONS OF HOLDING
The obligations of Holding to consummate the Company Merger are also
subject to the satisfaction of the following additional conditions at or prior
to the Closing:
(a) Representations, Warranties and Covenants. The accuracy of the
representations and warranties of Whitney and WNB contained in this Agreement
shall be assessed as of the date of this Agreement and as of the Closing Date
with the same effect as though all such representations and warranties had been
made on and as of the Closing Date, except to the extent they are confined to a
specific date or to the extent changes are permitted by the terms of this
Agreement. There shall not exist inaccuracies in the representations and
warranties of Whitney and WNB contained in this Agreement such that the
aggregate effect of such inaccuracies would have or would be reasonably likely
to have, a Material Adverse Effect on Whitney and WNB taken as a whole;
provided, that for purposes of this sentence only, those representations and
warranties that are qualified by reference to materiality or knowledge shall be
deemed not to include such qualifications. Each of Whitney and WNB shall have in
all material respects performed all obligations and complied with all covenants
required by this Agreement and the Bank Merger Agreement to be performed or
complied with by it at or prior to the Closing. In addition, each of Whitney and
WNB shall have delivered to Holding and the Bank a certificate dated as of the
Closing Date and signed by its chief executive officer and chief financial
officer to the foregoing effect.
(b) No Material Adverse Change. There shall not have occurred any Material
Adverse Change from the date of Whitney's Latest Balance Sheet to the Closing
Date with respect to Whitney's consolidated group taken as a whole.
6.04. WAIVER OF CONDITIONS
Any condition to a party's obligations hereunder may be waived by that
party, other than the conditions specified in subparagraphs (a), (b) and (d) of
Section 6.01 hereof. The failure to waive any condition hereunder shall not be
deemed a breach of Section 5.03 hereof.
SECTION 7. TERMINATION
7.01. TERMINATION
This Agreement and the Bank Merger Agreement may be terminated and the
Mergers contemplated herein abandoned at any time before the Effective Time,
whether before or after approval by the shareholders of Holding as follows:
43
(a) Mutual Consent. By the mutual written consent of the Board of
Directors of Holding and the Board of Directors (or Executive Committee of the
Board of Directors) of Whitney.
(b) Breach. By the Board of Directors of either Holding or the Board of
Directors (or Executive Committee of the Board of Directors) of Whitney, in the
event of a breach by any member of the consolidated group of the other of them
of any representation or warranty contained in this Agreement or of any covenant
contained in this Agreement, which in either case (i) would result in the
failure to satisfy the conditions set forth in Sections 6.02(a) or 6.03(a), as
applicable, and (ii) cannot be, or has not been, cured within 30 days after
written notice of such breach is given to the entity committing such breach,
provided, that the right to effect such cure shall not extend beyond the date
set forth in subparagraph (c) below.
(c) Abandonment. By the Board of Directors of either Holding or the Board
of Directors (or Executive Committee of the Board of Directors) of Whitney if
(i) all conditions to Closing required by Section 6 hereof have not been met by
or waived by Whitney or Holding by April 30, 2006 (the "Termination Date"), or
(ii) any such condition cannot be met by the Termination Date and has not been
waived by each party in whose favor such condition inures, or (iii) if the
Company Merger has not been consummated by the Termination Date, provided that
the failure to consummate the transactions contemplated hereby is not caused by
the party electing to terminate pursuant to this clause (iii).
(d) Shareholder Vote. By Whitney if this Agreement or the Company Merger
fails to receive the requisite vote at any meeting of the Holding's shareholders
called for the purpose of voting thereon.
(e) Holding Recommendation. By Whitney if the Board of Directors of
Holding (A) shall withdraw, modify or change its recommendation to its
shareholders of this Agreement or the Company Merger or shall have resolved to
do any of the foregoing or; (B) either (x) shall have recommended to the
shareholders of Holding (or in the case of (iii) affirmatively approved) any of
the following (being referred to herein as an "Acquisition Transaction"): (i)
any merger, consolidation, share exchange, business combination or other similar
transaction (other than the transactions contemplated by this Agreement); (ii)
any sale, lease, transfer or other disposition of all or substantially all of
the assets of any member of Holding's consolidated group; or (iii) any
acquisition, by any person or group, of the beneficial ownership of 15% or more
of any class of Holding capital stock; or (y) shall have made any announcement
of any agreement to do any of the foregoing.
(f) Acquisition Transaction. By Holding in the event Holding receives a
bona fide written offer with respect to an Acquisition Transaction and the Board
of Directors of Holding determines in good faith, after consultation with its
financial advisors and counsel, that such Acquisition Transaction is more
favorable to Holding's shareholders than the transactions contemplated by this
Agreement.
(g) Shareholders Seeking Appraisal. By Whitney, if the holders of more
than 5% in the aggregate of the outstanding Holding Common Stock shall have
voted such shares against this Agreement or the Company Merger at any meeting
called for the purpose of voting thereon and shall have exercised their
appraisal rights in accordance with Sections 1301-1333 of the FBCA.
(h) Whitney Stock Price Decrease. By the Board of Directors of Holding, at
any time during the two-calendar-day period commencing on the Determination Date
(as hereinafter defined), if both of the following conditions are satisfied:
44
(1) the Average Closing Price (as hereinafter defined) shall be less than
$25.00; and
(2) (i) the quotient obtained by dividing the Average Closing Price by the
Starting Price (as hereinafter defined) (such number being referred to herein as
the "Whitney Ratio") shall be less than (ii) the difference obtained by
subtracting 0.15 from the quotient obtained by dividing the Index Price (as
hereinafter defined) on the Determination Date by the Index Price on the
Starting Date (as hereinafter defined) (such number being referred to herein as
the "Index Ratio");
subject, however, to the following three sentences. If Holding refuses to
consummate the Company Merger pursuant to this Section 7.01(h), it shall give
prompt written notice thereof to Whitney; provided, that such notice of election
to terminate may be withdrawn at any time within the aforementioned two-day
period, but not thereafter. During the five-day period commencing with its
receipt of such notice, Whitney shall have the option to elect to increase the
Exchange Ratio to equal the lesser of (i) the quotient obtained by dividing (1)
the product of $25.00 and the Exchange Ratio (as then in effect) by (2) the
Average Closing Price, or (ii) the quotient obtained by dividing (1) the product
of the Index Ratio and the Exchange Ratio (as then in effect) by (2) the Whitney
Ratio. If Whitney makes an election contemplated by the preceding sentence,
within such five-day period, it shall give prompt written notice to Holding of
such election and the revised Exchange Ratio, whereupon no termination shall
have occurred pursuant to this Section 7.01(h) and this Agreement shall remain
in effect in accordance with its terms (except as the Exchange Ratio shall have
been so modified), and any references in this Agreement to "Exchange Ratio"
shall thereafter be deemed to refer to the Exchange Ratio as adjusted pursuant
to this Section 7.01(h).
For purposes of this Section 7.01(h), the following terms shall have the
meanings indicated:
"Average Closing Price" shall mean the average of the daily last sales
prices of Whitney Common Stock as reported on Nasdaq (as reported by The Wall
Street Journal or, if not reported thereby, another authoritative source as
chosen by Whitney) for the 10 consecutive full trading days in which such shares
are traded on Nasdaq ending at the close of trading on the Determination Date.
"Determination Date" shall mean the later of the date that (i) is the
tenth consecutive full trading day following the date on which Whitney receives
the consent of the Federal Reserve Board (without regard to any requisite
waiting period thereof) to the Company Merger and (ii) the second consecutive
full trading day following the date on which the Holding shareholders' meeting
occurs.
"Index Group" shall mean the 17 bank holding companies listed below, the
common stocks of all of which shall be publicly traded and as to which there
shall not have been, since the Starting Date and before the Determination Date,
any public announcement of a proposal for such company to be acquired or for
such company to acquire another company or companies in transactions with a
value exceeding 25% of the acquiror's market capitalization. If such an event
has occurred, then the applicable bank holding company will be removed from the
Index Group. In the event that any such company or companies are removed from
the Index Group, the weights (which shall be determined based upon the number of
outstanding shares of common stock) shall be redistributed proportionately for
purposes of determining the Index Price. The 17 bank
45
holding companies and the weights attributed to them are as follows:
COMMON PERCENT
SHARES OF
BANK OUTSTANDING TOTAL
---------------------------------- ------------- -------
BancorpSouth, Inc. 78,279,756 4.26%
Xxxxxxx Holding Company 32,391,579 1.76%
Trustmark Corporation 56,835,001 3.09%
First Horizon National Corporation 124,131,336 6.75%
AmSouth Bancorp 352,965,000 19.20%
Compass Bancshares, Inc. 123,931,618 6.74%
Regions Financial Corp 463,910,454 25.24%
Amcore Financial, Inc. 24,795,255 1.35%
Cullen/Frost Bankers, Inc. 51,850,353 2.82%
First Midwest Bancorp, Inc. 45,698,032 2.49%
Commerce Bancshares, Inc. 66,815,760 3.64%
FirstMerit Corporation 83,618,140 4.55%
Sky Financial Group, Inc. 105,102,393 5.72%
BOK Financial Corporation 59,495,010 3.24%
Susquehanna Bancshares, Inc. 46,650,467 2.54%
The South Financial Group, Inc. 71,901,830 3.91%
Texas Regional Bancshares, Inc. 49,595,709 2.70%
TOTAL 1,837,967,693 100.00%
"Index Price" on a given date shall mean the weighted average
(weighted in accordance with the factors listed above) of the closing
prices of the companies composing the Index Group.
"Starting Date" shall mean the fourth full trading day after the
announcement by press release of the execution of this Agreement.
"Starting Price" shall mean the closing price per share of Whitney
Common Stock as reported on Nasdaq (as reported by The Wall Street Journal
or, if not reported thereby, another authoritative source as chosen by
Whitney) on the Starting Date.
If any company belonging in the Index Group or Whitney declares or
effects a stock
46
dividend, reclassification, recapitalization, split-up, combination,
exchange of shares, or similar transaction between the date of this
Agreement and the Determination Date, the prices for the common stock of
such company or Whitney shall be appropriately adjusted for the purposes
of applying this Section 7.01(h).
(i) Whitney Stock Price Increase. By the Board of Directors (or Executive
Committee of the Board of Directors) of Whitney, if the Average Closing Price of
Whitney Common Stock as calculated in accordance with Section 7.01(h) is more
than $40.00; provided, however, that if the Average Closing Price of Whitney
Common Stock is greater than $40.00 as a result of the announcement of a pending
acquisition of Whitney by an unaffiliated third party, then Whitney shall not be
entitled to exercise its termination right pursuant to this Section 7.01(i).
(j) Prior to Notification Date. By Whitney by delivery of a notice to
terminate this Agreement pursuant to Section 5.02.
7.02. EFFECT OF TERMINATION
Upon termination of this Agreement pursuant to this Section 7, the Bank
Merger Agreement shall also terminate and there shall be no liability by reason
of this Agreement or the Bank Merger Agreement, or the termination thereof, on
the part of any party or their respective directors, officers, employees, agents
or shareholders except for any liability of a party hereto arising out of (i) a
willful breach of any representation, warranty or covenant in this Agreement
prior to the date of termination, except if such breach was required by law or
by any bank or bank holding company regulatory authority; (ii) a termination
pursuant to Section 7.01(e) or Section 7.01(f) causing payment to be made under
Section 7.03; or (iii) a breach of any of the following provisions: the second
to last sentence of Section 5.01 and Sections 5.15(b) and (c). Each party hereby
agrees that its sole right and remedy with respect to any nonwillful breach of a
representation or warranty or covenant by the other party shall be not to close
the transactions described herein if such breach results in the nonsatisfaction
of a condition set forth in Section 6 hereof; provided, however, that the
foregoing shall not be deemed to be a waiver of any claim for a willful breach
of a representation, warranty or covenant or for fraud (except if such breach is
required by law or by any bank or bank holding company regulatory authority), in
which case the parties will have all available legal rights and remedies.
7.03. TERMINATION PAYMENT
If this Agreement is terminated by Whitney or Holding pursuant to Section
7.01(e) or Section 7.01(f), then Holding (or its successor) shall pay or cause
to be paid to Whitney upon demand a termination payment of $4.8 million payable
in same day funds.
SECTION 8. MISCELLANEOUS
8.01. NOTICES
Any notice, communication, request, reply, advice or disclosure
(hereinafter severally and collectively "notice") required or permitted to be
given or made by any party to another in connection with this Agreement or the
Bank Merger Agreement or the transactions herein or therein contemplated must be
in writing and may be given or served by depositing the same in the United
States mail, postage prepaid and registered or certified with return receipt
requested, or by delivering the same to the address
47
of the person or entity to be notified, or by sending the same by a national
commercial courier service (such as DHL, Federal Express, Menlo Worldwide
Forwarding, Network Courier, Purolator or the like) for next day delivery
provided such delivery is confirmed in writing by such courier. Notice deposited
in the mail in the manner hereinabove described shall be effective 48 hours
after such deposit, and notice delivered in person or by commercial courier
shall be effective at the time of delivery. A party delivering notice shall
endeavor to obtain a receipt therefor. For purposes of notice, the addresses of
the parties shall, until changed as hereinafter provided, be as follows:
If to Whitney or WNB:
Xx. Xxxxxxx X. Xxxxx
Chairman of the Board & CEO
Whitney Holding Corporation
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
With copies to:
Xxxxxx X. Xxxxxxxx, Xx., Esq.
Whitney National Bank
Legal Department
000 Xx. Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxx 00000
With a copy to (which shall not constitute notice):
Xxxxxxxx X. Xxxxx III, Esq.
Xxxxxx & Bird LLP
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
If to Holding or the Bank:
Xxxxxxx X. xxXxxx, III
First National Bancshares, Inc.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxx 00000
With copies to:
Xxxxxx X. Xxxxx, Esq.
Xxxxxxxx, Loop & Xxxxxxxx, LLP
Xxxxx Xxxxxxxxxx Xxxxxx
0000 Xxxxxxx
Xxxxxx, Xxxx 00000-0000
48
8.02. WAIVER
The failure by any party to enforce any of its rights hereunder shall not
be deemed to be a waiver of such rights, unless such waiver is an express
written waiver that has been signed by the waiving party. Waiver of any one
breach shall not be deemed to be a waiver of any other breach of the same or any
other provision hereof.
8.03. EXPENSES
Except as otherwise provided herein, regardless of whether the Mergers are
consummated, all expenses incurred in connection with this Agreement and the
Bank Merger Agreement and the transactions contemplated hereby and thereby shall
be borne by the party incurring them.
8.04. HEADINGS
The headings in this Agreement have been included solely for reference and
shall not be considered in the interpretation or construction of this Agreement.
8.05. ANNEXES, EXHIBITS AND SCHEDULES
The annexes, exhibits and schedules to this Agreement are incorporated
herein by this reference and expressly made a part hereof.
8.06. INTEGRATED AGREEMENT
This Agreement, the Bank Merger Agreement, the Confidentiality Agreement,
the exhibits and schedules hereto and all other documents and instruments
delivered in accordance with the terms hereof constitute the entire
understanding and agreement among the parties hereto with respect to the subject
matter hereof, and there are no agreements, understanding, restrictions,
representations or warranties among the parties other than those set forth
herein or therein, all prior agreements and understandings being superseded
hereby.
8.07. CHOICE OF LAW
The validity of this Agreement and the Bank Merger Agreement, the
construction of their terms and the determination of the rights and duties of
the parties hereto in accordance therewith shall be governed by and construed in
accordance with the laws of the United States and those of the State of
Louisiana applicable to contracts made and to be performed wholly within such
State. Matters concerning the effectiveness and validity of the Company Merger
under Florida law shall be governed by and construed in accordance with the
FBCA.
8.08. PARTIES IN INTEREST
This Agreement shall bind and inure to the benefit of the parties hereto
and their respective successors and assigns, except that this Agreement may not
be transferred or assigned by any member of either consolidated group without
the prior written consent of the other parties hereto, including any transfer or
assignment by operation of law. Nothing in this Agreement or the Bank Merger
Agreement is intended or shall be construed to confer upon or to give any person
other than the parties hereto any rights
49
or remedies under or by reason of this Agreement or the Bank Merger Agreement,
except as expressly provided for herein and therein.
8.09. AMENDMENT
The parties may, by mutual agreement of their respective Boards of
Directors, amend, modify or supplement this Agreement, the Bank Merger
Agreement, or any exhibit or schedule of any of them, in such manner as may be
agreed upon by the parties in writing, at any time before or after approval of
this Agreement and the Bank Merger Agreement and the transactions contemplated
hereby and thereby by the shareholders of the parties hereto. This Agreement and
any exhibit or schedule to this Agreement may be amended at any time and, as
amended, restated by the chief executive officers of the respective parties (or
their respective designees) without the necessity for approval by their
respective Boards of Directors or shareholders, to correct typographical errors
or to change erroneous references or cross references, or in any other manner
that is not material to the substance of the transactions contemplated hereby.
8.10. COUNTERPARTS
This Agreement may be executed by the parties in any number of
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same document.
8.11. NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES; COVENANTS
None of the representations and warranties in this Agreement or in any
instrument delivered pursuant hereto shall survive the Effective Time. The
covenants of the parties set forth herein shall survive the Effective Time in
accordance with their terms and, in the absence of a specified survival term,
for the applicable statute of limitations.
8.12. ATTORNEYS' FEES
In any action at law or suit in equity to enforce this Agreement or the
rights of any of the parties hereunder, the prevailing party in such action or
suit shall be entitled to receive its reasonable attorneys' fees and costs and
expenses incurred in such action or suit.
8.13. WAIVER OF JURY TRIAL
THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHT THAT ANY PARTY MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY PROCEEDING,
LITIGATION OR COUNTERCLAIM BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. IF THE SUBJECT MATTER OF
ANY LAWSUIT IS ONE IN WHICH THE WAIVER OF JURY TRIAL IS PROHIBITED, NO PARTY TO
THIS AGREEMENT SHALL PRESENT AS A NONCOMPULSORY COUNTERCLAIM IN ANY SUCH LAWSUIT
ANY CLAIM BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT. FURTHERMORE, NO PARTY TO THIS AGREEMENT SHALL SEEK TO CONSOLIDATE ANY
SUCH ACTION IN WHICH A JURY TRIAL CANNOT BE WAIVED.
(THE REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY.)
50
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
WHITNEY HOLDING CORPORATION FIRST NATIONAL BANCSHARES, INC.
BY: _____________________________________ BY: ______________________________
Xxxxxxx X. Xxxxx Xxxxxxx X. xxXxxx, III
ITS: Chairman and Chief Executive Officer ITS: Chairman and Chief Executive
Officer
Attest: _________________________________ Attest: __________________________
Xxxxxx X. Xxxxxx Xxxx X. Xxxxxxx
Senior Assistant Corporate President
Secretary
WHITNEY NATIONAL BANK 1(ST) NATIONAL BANK & TRUST
BY: _____________________________________ BY: ______________________________
Xxxxxxx X. Xxxxx Xxxxxxx X. xxXxxx, III
ITS: Chairman and Chief Executive Officer ITS: Chairman and Chief Executive
Officer
Attest: _________________________________ Attest: __________________________
Xxxxxx X. Xxxxxx Xxxx X. Xxxxxxx
Senior Assistant Corporate President
Secretary
51
CERTIFICATE OF SECRETARY
OF
FIRST NATIONAL BANCSHARES, INC.
I hereby certify that I am the duly elected Secretary of First National
Bancshares, Inc., a Florida corporation, currently serving in such capacity and
that the foregoing Agreement and Plan of Merger was, in the manner required by
law, duly approved, without alteration or amendment, by the shareholders of
First National Bancshares, Inc. on _____________, 200__.
Certificate dated _____________,200__.
__________________________________
Xxxxxx X. X'Xxxxxx
Secretary
52
CERTIFICATE OF SECRETARY
OF
WHITNEY HOLDING CORPORATION
I hereby certify that I am the duly elected Corporate Secretary of Whitney
Holding Corporation, a Louisiana corporation, presently serving in such capacity
and that, in accordance with Section 112(E) of the Louisiana Business
Corporation Law, the foregoing Agreement and Plan of Merger was not required to
be submitted to the shareholders of Whitney Holding Corporation.
Certificate dated ______________, 200__.
__________________________________
Xxxxxx X. Xxxxxxxx, Xx.
Corporate Secretary
53
EXECUTION BY CORPORATIONS
Considering the approval of this Agreement by the shareholders of the
parties hereto, as certified above, this Agreement is executed by such parties,
acting through their respective Presidents and other officers, on the dates
hereinafter set forth.
FIRST NATIONAL BANCSHARES
By: ______________________________
Xxxx X. Xxxxxxx
President
Attest: __________________________
Xxxxxx X. X'Xxxxxx
Secretary
Date: _____________, 200__
WHITNEY HOLDING CORPORATION
By: ______________________________
X. Xxxx Milling
President
Attest: __________________________
Xxxxxx X. Xxxxxxxx, Xx.
Corporate Secretary
Date: ______________, 200__
54
ACKNOWLEDGMENT AS TO
FIRST NATIONAL BANCSHARES, INC.
STATE OF FLORIDA
COUNTY OF _______________
BEFORE ME, the undersigned authority, personally came and appeared Xxxx X.
Xxxxxxx, who, being duly sworn, declared and acknowledged before me that he is
the President of First National Bancshares, Inc. and that in such capacity he
was duly authorized to and did execute the foregoing Agreement on behalf of such
corporation, for the purposes therein expressed and as their and such
corporation's free act and deed.
__________________________________
Xxxx X. Xxxxxxx
Sworn to and subscribed before me
this _____ day of __________, 200__.
____________________________________
Notary Public
State of Florida at Large
(SEAL)
55
ACKNOWLEDGMENT AS TO
WHITNEY HOLDING CORPORATION
STATE OF LOUISIANA
PARISH OF ORLEANS
BEFORE ME, the undersigned authority, personally came and appeared X. Xxxx
Milling, who, being duly sworn, declared and acknowledged before me that he is
the President of Whitney Holding Corporation and that in such capacity he was
duly authorized to and did execute the foregoing Agreement on behalf of such
corporation, for the purposes therein expressed and as his and such
corporation's free act and deed.
__________________________________
X. Xxxx Milling
Sworn to and subscribed before me
this _____ day of __________, 200__.
____________________________________
Xxxxxx X. Xxxxxx, Notary Public
Notary Number 34565
My commission expires at death
(SEAL)
56
EXHIBIT 1.A TO
AGREEMENT AND PLAN OF MERGER
FORM OF
SUPPORT AGREEMENT
FOR
OFFICER-DIRECTORS
July [o], 2005
Xx. Xxxxxxx X. Xxxxx
Chairman and CEO
Whitney Holding Corporation
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xx. 00000
Dear Xx. Xxxxx:
In consideration of the benefits the undersigned will receive as a
shareholder of First National Bancshares, Inc. ("Holding") as set forth in the
Agreement and Plan of Merger, dated July 27, 2005, between Holding and 1st
National Bank & Trust (the "Bank"), on the one hand, and Whitney Holding
Corporation ("Whitney") and Whitney National Bank ("WNB"), on the other hand
(the "Merger Agreement"), and following the Closing Date as an officer of
Whitney National Bank, the undersigned agrees and acknowledges as follows:
I agree to vote all shares of Holding Common Stock that I own
beneficially or of record in favor of approving the Merger Agreement and the
merger of Holding into Whitney (the "Company Merger") to be effected thereby at
any shareholder meeting of Holding or at any adjournment thereof or any other
circumstance upon which a vote, consent or other approval is sought, unless
Whitney is then in breach or default in any material respect as regards any
covenant, agreement, representation or warranty as to it contained in the Merger
Agreement. Furthermore, I agree to vote all shares of Holding Common Stock that
I own beneficially or of record at any shareholder meeting of Holding or at any
adjournment thereof or any other circumstance upon which a vote, consent or
other approval is sought against any merger agreement, share exchange, or merger
(other than the Company Merger and the Merger Agreement), consolidation,
combination, sale of substantially all of the assets, recapitalization,
dissolution, liquidation, or winding up of Holding, or any amendment to
Holdings' Articles of Incorporation or Bylaws or other proposal or transaction
involving Holding, which amendment or proposal or transaction would in any
manner impede, frustrate, prevent or nullify the Company Merger, the Merger
Agreement or any of the other transactions contemplated thereby.
I further agree that I will not, without the prior written consent of
Whitney, transfer any of my shares of Holding Common Stock prior to the
Effective Date, as that term is set forth in the Merger Agreement, except by
operation of law, by will, or under the laws of descent and distribution.
I certify that all of the shares of Holding Common Stock that I own
beneficially or of record or control or which I hold the power to sell,
transfer, pledge or otherwise alienate or encumber, including all shares that
would be deemed to be sold for my account by Rule 144 under the Securities Act,
are represented by the following certificates:
Certificate No. Certificate Name No. of shares
I am aware that Holding and Whitney intend to treat the Company Merger
in a manner consistent with Section 368 of the Internal Revenue Code of 1986, as
amended (the "Code"). I acknowledge that applicable tax regulations require
"continuity of interest" in order for the Company Merger to qualify as a
tax-free reorganization under Section 368 of the Code. This requirement is
satisfied if prior to the Company Merger (i) shareholders of Holding have not
sold or otherwise disposed of Holding Common Stock and (ii) there is no plan or
intention on the part of the shareholders of Holding to sell or otherwise
dispose of Whitney stock to be received in the Company Merger in an aggregate
amount that would reduce their ownership to a number of shares of Whitney stock
having an aggregate value, at the time of the Company Merger, of less than 50%
of the total fair market value of the Holding Common Stock (other than shares
held by the Bank except in a fiduciary capacity for third persons) outstanding
immediately prior to the Company Merger. I have not disposed of a number of
shares of Holding Common Stock and I have no plan or intention to dispose of a
number of shares of Whitney stock to be received by me in the Company Merger
that would, taking into account any plan or intention on the part of other
former shareholders of Holding, of which I am aware, to dispose of shares of
Whitney stock received in the Company Merger, cause the foregoing requirement
not to be satisfied.
Capitalized terms used herein and not otherwise defined shall have the
meanings given to them in the Merger Agreement. This letter shall constitute an
irrevocable agreement of the undersigned, and may be revoked only upon the
mutual agreement of the parties. The agreements contained in this Support
Agreement will terminate upon any termination of the Merger Agreement under
Section 7 of the Merger Agreement.
Sincerely,
-------------------------------------
[o]
Agreed and Accepted:
WHITNEY HOLDING CORPORATION
By:
-----------------------------------------
Title:
--------------------------------------
EXHIBIT 1 TO
AGREEMENT AND PLAN OF MERGER
FORM OF
SUPPORT AGREEMENT
FOR
DIRECTORS
July [o], 2005
Xx. Xxxxxxx X. Xxxxx
Chairman and CEO
Whitney Holding Corporation
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xx. 00000
Dear Xx. Xxxxx:
In consideration of the benefits the undersigned will receive as a
shareholder of First National Bancshares, Inc. ("Holding") as set forth in the
Agreement and Plan of Merger, dated July 27, 2005, between Holding and 1st
National Bank & Trust (the "Bank"), on the one hand, and Whitney Holding
Corporation ("Whitney") and Whitney National Bank ("WNB"), on the other hand
(the "Merger Agreement"), and as a member of the Manatee/Sarasota Market
Advisory Board of Whitney National Bank], the undersigned agrees and
acknowledges as follows:
I agree to vote all shares of Holding Common Stock that I own
beneficially or of record in favor of approving the Merger Agreement and the
merger of Holding into Whitney (the "Company Merger") to be effected thereby at
any shareholder meeting of Holding or at any adjournment thereof or any other
circumstance upon which a vote, consent or other approval is sought, unless
Whitney is then in breach or default in any material respect as regards any
covenant, agreement, representation or warranty as to it contained in the Merger
Agreement. Furthermore, I agree to vote all shares of Holding Common Stock that
I own beneficially or of record at any shareholder meeting of Holder or at any
adjournment thereof or any other circumstance upon which a vote, consent or
other approval is sought against any merger agreement, share exchange, or merger
(other than the Company Merger and the Merger Agreement), consolidation,
combination, sale of substantially all of the assets, recapitalization,
dissolution, liquidation, or winding up of Holding, or any amendment to
Holdings' Articles of Incorporation or Bylaws or other proposal or transaction
involving Holding, which amendment or proposal or transaction would in any
manner impede, frustrate, prevent or nullify the Company Merger, the Merger
Agreement or any of the other transactions contemplated thereby.
I further agree that I will not, without the prior written consent of
Whitney, transfer any of my shares of Holding Common Stock prior to the
Effective Date, as that term is set forth in the Merger Agreement, except by
operation of law, by will, or under the laws of descent and distribution.
I certify that all of the shares of Holding Common Stock that I own
beneficially or of record or control or which I hold the power to sell,
transfer, pledge or otherwise alienate or encumber, including all shares that
would be deemed to be sold for my account by Rule 144 under the Securities Act,
are represented by the following certificates:
Xx. Xxxxxxx X. Xxxxx
[o], 2005
Page 2
Certificate No. Certificate Name No. of shares
I am aware that Holding and Whitney intend to treat the Company Merger
in a manner consistent with Section 368 of the Internal Revenue Code of 1986, as
amended (the "Code"). I acknowledge that applicable tax regulations require
"continuity of interest" in order for the Company Merger to qualify as a
tax-free reorganization under Section 368 of the Code. This requirement is
satisfied if prior to the Company Merger (i) shareholders of Holding have not
sold or otherwise disposed of Holding Common Stock and (ii) there is no plan or
intention on the part of the shareholders of Holding to sell or otherwise
dispose of Whitney stock to be received in the Company Merger in an aggregate
amount that would reduce their ownership to a number of shares of Whitney stock
having an aggregate value, at the time of the Company Merger, of less than 50%
of the total fair market value of the Holding Common Stock (other than shares
held by the Bank except in a fiduciary capacity for third persons) outstanding
immediately prior to the Company Merger. I have not disposed of a number of
shares of Holding Common Stock and I have no plan or intention to dispose of a
number of shares of Whitney stock to be received by me in the Company Merger
that would, taking into account any plan or intention on the part of other
former shareholders of Holding to dispose of shares of Whitney stock received in
the Company Merger, cause the foregoing requirement not to be satisfied.
I hereby agree that, for two (2) years following the Closing Date, I
shall not, without the prior written consent of the Chief Executive Officer of
Whitney, which consent may be withheld for any reason, directly or indirectly
solicit or recruit for employment or encourage to leave employment with Whitney
or any of its affiliates, on my own behalf or on behalf of any other person or
entity other than Whitney or any affiliate of Whitney, any person who worked at
Holding or the Bank during my tenure as a director of Holding or any person who
worked at Whitney or WNB during my tenure as an Advisory Board member of Whitney
National Bank and who performed services for clients and customers of Holding,
Whitney or any of their affiliates or worked on Holding, Whitney or any of their
affiliates' products or services while employed by Holding or Whitney or any of
their affiliates and who has not thereafter ceased to be employed by Holding,
the Bank or Whitney or any of their affiliates for a period of at least one (1)
year. I agree to exercise my best efforts to prevent any of the activities
listed in this paragraph from occurring.
I hereby agree that, for two (2) years following the Closing Date, I
shall not, directly or indirectly, on behalf of myself or of anyone other than
Whitney or its affiliates, solicit or attempt to solicit any client or customer
of Whitney, Holding or any of their affiliates for the purpose of either (1)
providing any financial or related service or product to such client or customer
or (2) inducing such client or customer to cease, reduce, restrict or divert its
business with Holding, the Bank or Whitney and its affiliates. I agree to
exercise my best efforts to prevent any of the activities listed in this
paragraph from occurring.
I hereby agree that, for two (2) years following the Closing Date, I
shall not, without the prior written consent of the Chief Executive Officer of
Whitney, which consent may be withheld at the sole discretion of the Chief
Executive Officer of Whitney at any time, engage or participate in, as an
officer, director, owner, partner, joint venturer, or in a managerial capacity
as an executive employee, independent contractor, or advisor in any business or
enterprise that competes in Sarasota, Manatee or Pinellas Counties in Florida
(the "Restricted Area") with Whitney or Holding or their affiliates, in any
Xx. Xxxxxxx X. Xxxxx
[o], 2005
Page 3
Business Activities. For purposes of this paragraph, the "Business Activities"
shall be the business activities conducted by Holding and its affiliates, and
those conducted by Whitney and its affiliates, which include commercial, small
business, and retail lending, banking services, private client services, asset
management advisory services, trust, cash management, brokerage, mortgage
services, and credit, debit and stored value card services. Nothing in this
paragraph shall prohibit me from acquiring or holding, for investment purposes
only, less than one percent (1%) of the outstanding securities of any
corporation that may compete directly or indirectly with Holding or Whitney or
their affiliates.
I acknowledge that Whitney has purchased through the Merger Agreement
the trade secrets, confidential information, customer relationships and other
goodwill of Holding and the Bank and that Whitney has a legitimate business
interest in protecting those items and the benefits of its purchase. I further
acknowledge that Whitney has a current and future expectation of business within
the geographic areas served by Holding and the Bank and encompassing the
Restricted Area and from the current and proposed customers of Holding, the Bank
and/or Whitney and/or their affiliates and that this Agreement is a reasonable
means of protecting the benefits of Whitney's purchase and its other legitimate
business interests, including its trade secrets, confidential information,
customer relationships and other goodwill. The undersigned acknowledges that the
term, geographic area and scope of the covenants set forth in this Agreement are
reasonable, and agrees that the undersigned will not, in any action, suit or
other proceeding, deny the reasonableness of, or assert the unreasonableness of,
the premises, consideration or scope of the covenants set forth herein. The
undersigned agrees that any breach of the covenants contained in this Support
Agreement will result in irreparable damage to Whitney and its affiliates and
that Whitney will be entitled to injunctive relief in any court of competent
jurisdiction without the necessity of posting any bond. I also agree that I
shall be responsible for any damages incurred by Whitney or any of its
affiliates due to any breach of the covenants contained in this Support
Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings given to them in the Merger Agreement. This letter shall constitute an
irrevocable agreement of the undersigned, and may be revoked only upon the
mutual agreement of the parties. The agreements contained in this Support
Agreement will terminate upon any termination of the Merger Agreement under
Section 7 of the Merger Agreement.
Sincerely,
---------------------------------------------
[o]
Agreed and Accepted:
WHITNEY HOLDING CORPORATION
By:
-----------------------------------------
Title:
--------------------------------------
EXHIBIT 1.01(B) TO
AGREEMENT AND PLAN OF MERGER
AGREEMENT TO MERGE
BETWEEN
WHITNEY NATIONAL BANK
AND
1ST NATIONAL BANK & TRUST
UNDER THE CHARTER OF
WHITNEY NATIONAL BANK
UNDER THE TITLE OF
WHITNEY NATIONAL BANK
THIS AGREEMENT made between Whitney National Bank (hereinafter referred
to as "WNB"), a banking association organized under the laws of the United
States, being located at 000 Xx. Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxx of Orleans,
in the State of Louisiana, with a capital of $3,358,000, divided into 134,336
shares of common stock, each of $25.00 par value, surplus of $[o], and undivided
profits, including capital reserves, of $[o], as of [o], 200[o], and 1ST
National Bank & Trust (hereinafter referred to as the "Bank"), a national
banking association organized under the laws of the United States, being located
at 0000 Xxxxxxx Xxxxxx Xxxx, Xxxxxx of Manatee in the State of Florida, with a
capital of $[o] divided into [o] shares of common stock, each of $[o] par value,
surplus of $[o], and undivided profits, including capital reserves, of $[o], as
of [o], 200[o], each acting pursuant to a resolution of its board of directors,
adopted by the vote of a majority of its directors, pursuant to the authority
given by and in accordance with the provisions of the Act of November 7, 1918,
as amended (12 U.S.C. 215(a)), witnessed as follows:
SECTION 1.
The Bank shall be merged into WNB under the charter of the latter.
SECTION 2.
The name of the receiving association (hereinafter referred to as the
"Association") shall be Whitney 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 to be located at 000 Xx. Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx, and at
its legally established branches.
SECTION 4.
The amount of capital stock of the Association shall be $3,358,000,
divided into 134,336 shares of common stock, each of $25.00 par value, and at
the time the merger shall become effective, the Association shall have a
surplus, which when combined with the capital and undivided profits, including
capital reserves, will be equal to the combined capital structures of the
merging banks as stated in the preamble of this agreement, adjusted however, for
purchase accounting adjustments and normal earnings and expenses between [o],
200[o], and the effective time of the merger, and undivided profits, including
capital reserves, of $[o], adjusted however, for WNB's normal earnings and
expenses between [o], 200[o], and the effective time of the merger.
SECTION 5.
All assets as they exist at the effective time of the merger shall pass
to and vest in the Association without any conveyance or other transfer. The
Association shall be responsible for all of the liabilities of every kind and
description, including liabilities arising from the operation of a trust
department, of each of the merging banks existing as of the effective time of
the merger.
SECTION 6.
Of the capital stock of the Association, the presently outstanding
134,336 shares of common stock each of $25.00 par value, and the holders of it
shall retain their present rights. All of the shares of the Bank outstanding at
the effective time of the merger shall be canceled and retired.
SECTION 7.
The present board of directors of WNB shall continue to serve as the
board of directors of the Association until the next annual meeting or until
such time as their successors have been elected and have qualified.
SECTION 8.
Effective as of the close of business on the date this 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 resulting bank
shall read in their entirety as set forth on Exhibit "A" attached hereto.
SECTION 9.
This agreement may be terminated by the unilateral action of the board
of directors of any participant prior to the approval of the stockholders of the
participant or by the mutual consent of the board of all participants after any
shareholder group has taken affirmative action. Since time is of the essence to
this agreement, if for any reason the transaction shall not have been
consummated by [o], 200[o], this agreement shall terminate automatically as of
that date unless extended, in writing, prior to this date by mutual action of
the boards of directors of the participants.
SECTION 10.
This agreement shall be ratified and confirmed by the affirmative vote
of shareholders of each of the merging banks owning at least two-thirds of its
capital stock outstanding, at a meeting to be held on the call of the directors
or by written unanimous consent of the sole shareholder of each such merging
bank; and the merger shall become effective at the close of business on the date
specified in a merger approval to be issued by the Comptroller of the Currency
of the United States.
IN WITNESS WHEREOF, this agreement has been executed by a majority of
the directors of each of the merging associations, as of the [o] day of [o],
200[o].
(The remainder of this page left blank intentionally.)
FOR THE BOARD OF DIRECTORS OF WHITNEY NATIONAL BANK:
-------------------------------- -----------------------------------
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FOR THE BOARD OF DIRECTORS OF 1ST NATIONAL BANK & TRUST:
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EXECUTION BY BANKS
WITNESS, the signature and seal of Whitney National Bank this [o] day
of [o], 200[o], set by its president and attested to by its corporate secretary,
pursuant to a resolution of its board of directors, acting by a majority.
ATTEST: WHITNEY NATIONAL BANK
BY: -----------------------------
------------------------------- X. Xxxx Milling
Corporate Secretary ITS President
(Seal of Bank)
WITNESS, the signature and seal of 1st National Bank & Trust this [o]
day of [o], 200[o], set by its president and attested to by its secretary,
pursuant to a resolution of its board of directors, acting by a majority.
ATTEST: 1ST NATIONAL BANK & TRUST
BY: ----------------------------
-------------------------------- Xxxx X. Xxxxxxx
Secretary ITS President
(Seal of Bank)
XXXXX XX XXXXXXXXX
XXXXXX XX XXXXXXX
Xx this [o] day of [o] 200[o], before me, a notary public for this
state and parish, personally came X. Xxxx Milling, as President, and Xxxxxx X.
Xxxxxxxx, Xx., as Corporate Secretary of Whitney National Bank, and each in his
capacity acknowledged this instrument to be the act and deed of the Whitney
National Bank and the seal affixed to it to be its seal.
WITNESS my official seal and signature this day and year aforesaid.
-----------------------------
Xxxxxx X. Xxxxxx
(Seal of Notary) Notary Public
STATE OF FLORIDA
COUNTY OF [o]
The foregoing instrument was acknowledged before me this [o] day of
[o], 200[o], by Xxxx X. Xxxxxxx, as President and Xxxxxx X. X'Xxxxxx, as
Secretary of 1st National Bank & Trust ( ) who are personally known to me, or
( ) who has produced _______________________________ as identification, and
eachin his capacity acknowledged this instrument to be the act and deed of [o]
Bank and the seal affixed to it to be its seal.
WITNESS my official seal and signature this [o] day of [o], 200[o].
-----------------------------
(SEAL) Notary Public
State of Florida at Large
EXHIBIT "A"
COMPOSITE
ARTICLES OF ASSOCIATION
WHITNEY NATIONAL BANK
FIRST. The title of this Association shall be WHITNEY NATIONAL BANK.
SECOND. The main office shall be in New Orleans, Orleans Parish,
Louisiana. The general business of the Association shall be conducted at its
main office, its legally established branches and such other locations as
permitted by law.
THIRD. The Board of Directors of this Association shall consist of not
less than five nor more than twenty-five shareholders. At any meeting of the
shareholders held for the purpose of electing directors or changing the numbers
thereof, the number of directors may be determined by a majority of the votes
cast by the shareholders in person or by proxy. Between annual meetings of
shareholders, the Board of Directors by a vote of a majority of the full Board
may increase the membership of the Board by not more than four members and by
like vote appoint qualified persons to fill the vacancies created thereby. A
majority of the Board of Directors shall be necessary to constitute a quorum for
the transaction of business at any directors' meeting.
Any shareholder who intends to nominate or to cause to have nominated
any candidate for election to the Board of Directors (other than one proposed on
behalf of the existing bank management) or any person to be so nominated must
give prior notice to the Association. Such notice shall be made in writing and
shall be delivered or mailed to the President of the Association, not less than
14 days nor more than 50 days prior to any meeting of shareholders called for
the election of directors. However, if less than 21 days' notice of meeting is
given to shareholders, such notice of nomination shall be mailed or delivered
not later than the close of business on the seventh day following the day on
which the notice of meeting was mailed. Any nomination not made in accordance
with these provisions may at the discretion of the chairman of the meeting be
disregarded by the vote tellers. No bylaw may unreasonably restrict the
nomination of directors by shareholders.
A director may resign at any time by delivering written notice to the
Board or Directors, its Chairman, or to the Association, which resignation shall
be effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove
him or her, when notice of the meeting states that the purpose or one of the
purposes is to remove him or her, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause, provided, however,
that a director may not be removed if the numbers of votes sufficient to elect
him or her under cumulative voting is voted against his or her removal.
FOURTH. The regular annual meeting of the shareholders of this
Association to elect directors and transact whatever other business may be
brought before the meeting shall be held at its main office, or other convenient
place duly authorized by the Board of Directors on such day of each year as is
specified therefor in the Bylaws.
FIFTH. The authorized amount of capital stock of this Association shall
be (i) Three Million Three Hundred Fifty-Eight Thousand Four Hundred and no/100
($3,358,400.00) Dollars, divided into 134,336 shares of common stock of the par
value of Twenty-Five Dollars ($25) each; and (ii) Eighty
Million and no/100 ($80,000,000.00) Dollars of Class A Perpetual Noncumulative
Preferred Stock divided into 800 shares of the par value of one hundred thousand
dollars ($100,000) each; but said capital stock may be increased or decreased
from time to time, according to the provisions of the laws of the United States.
The 134,336 shares of common stock shall be subject to the following
rights:
Dividends. The holders of shares of common stock shall be entitled to
receive, when and as declared in the discretion of the Board of Directors of the
Association, out of funds legally available therefor, dividends in such amount,
payable at such time and to holders of record of common stock on such record
date, as the Board of Directors may determine. Except with the consent of the
holders of all of the outstanding shares of preferred stock, the Board of
Directors shall not declare a dividend on common stock during any calendar
quarter of any year unless the Board of Directors has previously declared, or
concurrently declares, the most current semi-annual dividend on preferred stock
as specified by this Article FIFTH payable in such quarter or the previous
calendar quarter. If the common stock is increased by a dividend of common
stock, each shareholder shall be entitled to his proportionate amount of such
increase in accordance with the number of shares of common 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.
Voting Rights. Each holder of common stock shall be entitled to one
vote per share held on all matters requiring a vote of shareholders.
Liquidation Rights. If the Association shall be voluntarily or
involuntarily liquidated, dissolved or wound up, the holders of the then
outstanding shares of common stock shall be entitled to share pro rata based
upon the number of shares held in any amounts available for distribution to
holders of capital stock after payment in respect of all shares of capital stock
having a liquidation preference over shares of common stock.
Subscription Rights. In the event of any increase in the common stock
of this Association by the sale of additional shares, each shareholder shall be
entitled to subscribe to such additional shares of common stock in proportion to
the number of shares of common stock owned 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. 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 800 shares of Class A Perpetual Noncumulative Preferred Stock (the
"Preferred Stock") shall be subject to the following rights:
Preference. The preferences of each share of the Preferred Stock with
respect to dividend payments or distributions upon the voluntary or involuntary
liquidation, dissolution or winding up of the Association (herein,
"liquidation"), as the case may be, will be in every respect on a parity with
the preferences of every other share of Preferred Stock. The rights of each
share of Preferred Stock will be senior to the common stock with respect to
dividend payments and distributions upon liquidation of the Association.
Dividends. The holders of shares of Preferred Stock shall be entitled
to receive, when and as declared in the discretion of the Board of Directors of
the Association, out of funds legally available therefor, noncumulative
dividends at the rate of $8,000.00 per share per annum, and no more, payable in
cash semiannually on June 30 and December 31 of each year, beginning with the
first such date after the issuance thereof, with respect to the semiannual
dividend period (or portion thereof) ending on the day
prior to the respective dividend payment date. The amount of dividends payable
with respect to any period shorter or longer than a full semiannual dividend
period shall be computed on the basis of a 360-day year of 30 day months and the
actual number of days elapsed in the period for which payable. The right of
holders of shares of Preferred Stock to receive dividends shall be
noncumulative. If the Association does not pay a dividend to holders of shares
of Preferred Stock on any payment date in respect of the semiannual dividend
period (or portion thereof) ending on the day prior to the payment date, holders
of shares of Preferred Stock shall have no right to receive such dividend, and
the Association shall have no obligation to pay a dividend in respect of the
dividend period ending on such date, whether or not dividends are paid by the
Association in respect of any other dividend period in the future.
Dividends on shares of Preferred Stock shall be payable to the holders
thereof, as their names appear on the books and records of the Association on
the relevant record dates. Each relevant record date shall be the day other than
a day on which banking institutions governed by the Federal Reserve Board are
authorized or required to be closed ("Business Day"), immediately preceding the
dividend payment date. If any dividend payment date is a day other than a
Business Day, then payment of the dividend payable on such date shall be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on the scheduled dividend payment date.
Liquidation Rights. So long as any of the shares of Preferred Stock
shall be issued and outstanding, if the Association shall be voluntarily or
involuntarily liquidated, dissolved or wound up, the holders of the then issued
and outstanding shares of Preferred Stock will have a preference per share
against the property of the Association available for distribution to the
holders of the Association's capital stock (other than capital stock to which
shares of Preferred Stock are junior upon liquidation) equal to $100,000 plus
the amount of dividends that are declared and unpaid, if any, as of the date of
payment of such preference, and such preference will be paid on, or set apart in
full for the holders of, shares of Preferred Stock then issued and outstanding
before any distribution or payment will be made to the holders of shares of
common stock or other capital stock of the Association which are junior to the
shares of Preferred Stock upon liquidation.
In case the amounts available for distribution upon such liquidation to
holders of shares of Preferred Stock and other capital stock ranking on a parity
therewith upon liquidation are not sufficient to pay such holders in full the
amounts to which they are entitled, the holders of shares of Preferred Stock and
other stock ranking on a parity therewith upon liquidation will be entitled to a
distribution of assets ratably, in proportion to the sums that would be payable
to such holders if all such sums were paid in full. After payment of the full
amount of the liquidating distribution to which they are entitled, the holders
of shares of Preferred Stock will not be entitled to any further participation
in any distribution of assets by the Association.
Neither the consolidation nor merger of the Association into or with
another corporation or corporations, nor the sale, lease or exchange (for cash,
shares of equity stock, securities or other consideration) of all or
substantially all of the property and assets of the Association, nor the
distribution to the stockholders of the Association of all or substantially all
of the consideration for such sale, unless such consideration (apart from
assumption of liabilities) or the net proceeds thereof consists substantially or
entirely of cash, shall be deemed a liquidation, dissolution or winding up of
the Association within the meaning of the provisions hereof relating to shares
of Preferred Stock.
Redemption. The Association may, with the prior approval of the Office
of the Comptroller of the Currency or successor regulatory agency, redeem the
shares of Preferred Stock, in whole or in part, at the cash redemption price of
$100,000 per share plus all dividends declared and unpaid on such shares. In
the event that fewer than all the outstanding shares of Preferred Stock are to
be redeemed, the number of shares to be redeemed shall be determined by the
Board of Directors and the shares to be redeemed shall be determined by lot or
pro rata as may be determined by the Board of Directors or by any other method
as may be determined by the Board of Directors in its sole discretion to be fair
and equitable. The Board of Directors shall have full power and authority,
pursuant to the provisions herein contained, to prescribe the terms and
conditions upon which shares of Preferred Stock shall be redeemed from time to
time.
Voting Rights. The holders of shares of Preferred Stock will not, by
virtue of the ownership thereof, be entitled to vote upon any matter except as
otherwise required by applicable law.
The Association, at any time and from time to time, may authorize and
issue debt obligations, whether or not subordinated, without the approval of
shareholders. Obligations classified as debt, whether or not subordinated, which
may be issued by the Association without the approval of the shareholders, do
not carry voting rights on any issue, including an increase or decrease in the
aggregate number of the securities, or the exchange or reclassification of all
or part of securities into securities of another class or series.
SIXTH. The Board of Directors shall appoint one of its members as
Chairman of the Board. The Board of Directors shall also appoint one of its
members President of this Association--such appointee may be but need not be the
same person named as Chairman of the Board. The Board of Directors shall have
the power to appoint one or more Vice Chairmen of the Board, one or more Vice
Presidents, a Corporate Secretary, who shall keep minutes of the directors' and
shareholders' meetings and be responsible for authenticating the records of the
Association, and such other officers and employees as may be required to
transact the business of this Association; to fix the salaries to be paid to
such officers and employees of this Association; and to dismiss any of such
officers or employees and appoint others to take their place.
The Board of Directors shall have the power to define the duties of
officers and employees of this Association; to require adequate bonds from them
for the faithful performance of their duties; to ratify written policies
authorized by the Association's management or committees of the Board of
Directors; to manage and administer the business and affairs of the Association,
to make all Bylaws that may be lawful for the general regulation of the business
of this Association and the management of its affairs, to amend or repeal
Bylaws, except to the extent the Articles of Association reserve this power in
whole or in part to shareholders, and generally to do and perform all acts that
may be lawful for a Board of Directors to do and perform.
The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of New
Orleans, Louisiana, without the approval of the shareholders of this Association
but subject to the approval of the Comptroller of the Currency; and shall have
the power to change the location of any branch or branches of this Association
to any other location, without the approval of the shareholders of this
Association but subject to the approval of the Comptroller of the Currency.
SEVENTH. The corporate existence of this Association shall continue
until terminated in accordance withthe laws of the United States.
EIGHTH. The Board of Directors of this Association, or any three or
more shareholders owning, in the aggregate, not less than ten per centum (10%)
of the stock of this Association, may call a special meeting of shareholders at
any time.
Unless otherwise provided by the laws of the United States, a notice of
the time, place, and purpose of every regular annual, and every special meeting
of the shareholders shall be given by
first-class mail, postage prepaid, mailed at least ten, and no more than 60,
days prior to the date of such meeting to each shareholder of record at his
address as shown upon the books of this Association. Unless otherwise provided
by the Bylaws, any action requiring approval of shareholders must be affected at
a duly called annual or special meeting.
Subject to the provisions of the laws of the United States, these
Articles of Association may be amended at any meeting of the shareholders for
which adequate notice has been given, by the affirmative vote of the owners of a
majority of the stock of this Association, voting in person or by proxy.
NINTH. A. This Association shall indemnify any person who was or is a
party or is threatened to be made a party to any action, suit, or proceeding,
whether civil, criminal, administrative, or investigative, including any action
by or in the right of this Association, by reason of the fact that he is or was
a director, officer, employee, or agent of this Association, or is or was
serving at the request of this Association as a director, officer, employee or
agent of another business, foreign or nonprofit corporation, partnership, joint
venture, or other enterprise against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit, or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of this Association, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful;
however, in the case of actions by or in the right of this Association:
(i) As to persons other than directors and officers, the aforesaid
indemnity shall be limited to expenses, including attorneys'
fees and amounts paid in settlement not exceeding, in the
judgment of the board of directors, the estimated expense of
litigating the action to conclusion, actually and reasonably
incurred in connection with the defense or settlement of such
action, but the board of directors is authorized in its
discretion to pay or provide additional indemnity in
particular cases; and
(ii) As to directors and officers (including those serving as such
for other entities at the request of this Association) the
aforesaid indemnity shall be limited as provided in Paragraph
A only if it would permit indemnification of an individual for
the results of such individual's (i) willful or intentional
misconduct, (ii) breach of duty of loyalty to this Association
or to the entity otherwise served by the individual, or (iii)
engaging in a transaction from which the individual derived an
improper personal benefit; and
(iii) No indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been
adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable for willful
or intentional misconduct in the performance of his duty to
this Association unless and only to the extent that the court
shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances
of the case, he is fairly and reasonably entitled to indemnity
for such expenses which the court shall deem proper.
The termination of any action, suit, or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of this Association, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
B. To the extent that a director, officer, employee, or agent of this
Association has been successful on the merits or otherwise in defense of any
action, suit, or proceeding, or in defense of any
claim, issue, or matter therein, he shall be indemnified against expenses,
including attorneys' fees, actually and reasonably incurred by him in connection
therewith.
C. Any indemnification under Paragraph A of this Article NINTH, unless
ordered by the court, shall be made by this Association only as authorized in a
specific case upon a determination that the applicable standard of conduct has
been met. Such determination shall be made:
(i) By the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such action,
suit or proceeding.
(ii) If such a quorum is not obtainable and the board of directors
so directs, by independent legal counsel; or
(iii) By the shareholders.
D. Subsequent to the institution of such an action, suit or proceeding:
(a) As to directors (including officers who are also directors),
expenses actually and reasonably incurred in defending such an
action, suit, or proceeding shall be paid by this Association
in advance of the final disposition thereof, upon receipt of
an undertaking by or on behalf of the director or former
director incurring such expenses, to repay such amount if it
shall be finally determined by a court of competent
jurisdiction that he is not entitled to be indemnified by this
Association, as authorized in this Article NINTH; and
(b) As to persons other than directors, expenses actually and
reasonably incurred in defending such an action, suit or
proceeding may be paid by this Association in advance of the
final disposition thereof, if authorized by the board of
directors, upon receipt of an undertaking by or on behalf of
such person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by this
Association, as authorized in this Article NINTH.
E. This Association shall have power to procure or maintain insurance
or other similar arrangement on behalf of any person who is or was a director,
officer, employee, or agent of this Association, or is or was serving at the
request of this Association as a director, officer, employee, or agent of
another business, nonprofit or foreign corporation, partnership, joint venture,
or other enterprise against any liability asserted against or incurred by him in
any such capacity, or arising out of his status as such, whether or not this
Association would have the power to indemnify him against such liability under
the provisions of this Article NINTH.
Without limiting the power of this Association to procure or maintain any other
kind of insurance or similar arrangement, this Association may create a trust
fund or other form of self-insurance arrangement for the benefit of persons
indemnified by this Association and may procure or maintain such insurance with
any insurer deemed appropriate by the board of directors regardless of whether
all or part of the stock or other securities thereof are owned in whole or part
by this Association. In the absence of actual fraud, the judgment of the board
of directors as to the terms and conditions of such insurance or self-insurance
arrangement and the identity of the insurer or other person participating in a
self-insurance arrangement shall be conclusive, and such arrangements for
insurance shall not be subject to voidability and shall not subject the
directors approving such arrangement to liability, on any ground, regardless of
whether directors participating in approving such insurance arrangements shall
be beneficiaries thereof.
F. The indemnification, advancement of expenses and power to procure or
maintain insurance or other similar arrangement provided by or granted pursuant
to Article NINTH are subject to
any validly applicable limitations of state or federal law, but they shall not
be deemed exclusive of any other rights to which the person indemnified or
obtaining advancement of expenses is entitled under any applicable law, by-law,
agreement, authorization of shareholders or directors, regardless of whether
directors authorizing such indemnification are beneficiaries thereof, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of his heirs and legal representative; however, no such other
indemnification measure shall permit indemnification of any person for the
results of such person's willful or intentional misconduct.
TENTH. Notwithstanding references to shareholder meetings elsewhere in
these articles of association or bylaws, the sole shareholder of this
Association shall have the right to execute a written consent in lieu of voting
at an annual or special meeting of shareholders.
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. The Association's Board of Directors may propose
one or more amendments to the Articles of Association for submission to the
shareholders.
EXHIBIT 1.02(C) TO
AGREEMENT AND PLAN OF MERGER
ARTICLES OF MERGER
FIRST NATIONAL BANCSHARES, INC.
(A FLORIDA CORPORATION)
WITH AND INTO
WHITNEY HOLDING CORPORATION
(A LOUISIANA CORPORATION)
Pursuant to the provisions of Sections 607.1105 and 607.1107 of the
Florida Statutes, these Articles of Merger provide as follows:
ARTICLE I
Name of Surviving Corporation
The names and states of incorporation of the corporations, which are
parties to the merger (the "Merger"), are:
Name State of Incorporation
------------------------------- ----------------------
Whitney Holding Corporation Louisiana
First National Bancshares, Inc. Florida
Whitney Holding Corporation shall be the surviving corporation.
ARTICLE II
Plan of Merger
The Agreement and Plan of Merger is attached hereto as Exhibit A (the
"Merger Agreement").
ARTICLE III
Approval of the Plan of Merger
The Board of Directors of Whitney Holding Corporation adopted and
approved the Merger Agreement on July 27, 2005 in accordance with Louisiana law.
Under Louisiana law, approval of the Merger Agreement by the shareholders of
Whitney Holding Corporation was not required.
The Board of Directors of First National Bancshares, Inc. adopted and
approved the Merger Agreement on July 27, 2005 in accordance with Florida law
and voted to submit the Merger Agreement to a vote of the shareholders of First
National Bancshares, Inc. with unanimous recommendation that the Merger
Agreement be approved. The Merger Agreement, having been so submitted to the
shareholders of First National Bancshares, Inc., as a separate proposal, was
adopted by the shareholders at the Special Meeting of such shareholders held on
[o], 200[o].
ARTICLE IV
Effective Date of Merger
These Articles of Merger and the Merger shall become effective at 12:00
p.m. Central Time on [o], 200[o].
Dated this [o] day of [o], 200[o].
WHITNEY HOLDING CORPORATION
a Louisiana corporation
By:
----------------------------
Name: X. Xxxx Milling
Title: President
FIRST NATIONAL BANCSHARES, INC.
a Florida corporation
By:
----------------------------
Name: Xxxx. X. Xxxxxxx
Title: President
EXHIBIT 5.11(A) TO
AGREEMENT AND PLAN OF MERGER
FORM OF
AFFILIATE AGREEMENT
___________, 200___
Whitney Holding Corporation
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
First National Bancshares, Inc.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxx 00000
Re: Affiliate Agreement
Ladies and Gentlemen:
As a shareholder of First National Bancshares, Inc., a Florida
corporation ("Holding"), the undersigned is eligible to become a shareholder of
Whitney Holding Corporation, a bank holding company organized under the laws of
the State of Louisiana ("Whitney"), pursuant to and subject to the terms and
conditions of the merger of Holding with and into Whitney (the "Company Merger")
as described in the Agreement and Plan of Merger among Holding, 1st National
Bank & Trust, a national bank and wholly owned subsidiary of Holding (the "Bank"
and collectively with Holding, the "Target"), Whitney and Whitney National Bank,
a national banking association and wholly owned subsidiary of Whitney ("WNB" and
collectively with Whitney, the "Company") dated as of July 27, 2005 (the "Merger
Agreement"). Under the terms of the Merger Agreement and subject to the election
and proration procedures provided in the Merger Agreement, upon consummation of
the Company Merger, shares of Holding Common Stock will be converted into the
right to receive the Merger Consideration, including the Stock Consideration
and/or the Cash Consideration (in each case as defined in the Merger Agreement).
This Affiliate Agreement is provided pursuant to the Merger Agreement
and constitutes an agreement between the undersigned and Whitney regarding
certain rights and obligations of the undersigned in connection with shares of
Whitney Common Stock that may be received as a result of the Company Merger.
Capitalized terms used herein but not defined herein shall have the meanings
ascribed to them in the Merger Agreement.
In consideration of the Company Merger and the mutual covenants
contained herein, the undersigned and Whitney hereby agree as follows:
1. Affiliate Status. The undersigned understands and agrees that he or
she may be considered an "Affiliate" of Holding under Rule 145(c) as defined in
Rule 405 of the Rules and Regulations of the Securities and Exchange Commission
(the "SEC") under the Securities Act of 1933, as amended (the "Securities Act").
2. Restriction on Disposition. The undersigned agrees that he or she
will not sell, pledge, transfer or otherwise dispose of any of his or her
interests in, or reduce by any means including, without limitation, any options,
swaps, derivatives or other instruments or arrangements, his or her risk
relative to, any of (i) the shares of Holding Common Stock with respect to which
the undersigned has direct or indirect beneficial ownership, including all
shares described in Section 7 hereof, or (ii) the shares of Whitney Common Stock
into which such shares of Holding Common Stock are converted upon consummation
of the Company Merger, except as expressly permitted herein.
3. Covenants and Warranties of the Undersigned. The undersigned
represents, warrants and agrees that:
(a) The Whitney Common Stock received by the undersigned as a result
of the Company Merger will be taken for his or her own account and not for
others, directly or indirectly, in whole or in part, and not with a view to
distribution.
(b) Whitney has informed the undersigned that any resale by the
undersigned of Whitney Common Stock has not been registered under the Securities
Act and that shares of Whitney Common Stock received pursuant to the Company
Merger can only be sold by the undersigned (i) following registration under the
Securities Act, (ii) in conformity with the requirements of Rule 145 promulgated
by the SEC as the same now exists or may hereafter be amended, or (iii) to the
extent some other exemption from registration under the Securities Act might be
available. The undersigned understands that Whitney is under no obligation to
file a registration statement with the SEC covering the disposition of their
shares of Whitney's Common Stock or to take any other action necessary to make
any exemption from registration available. Whitney agrees that it shall continue
to file its periodic reports under the Exchange Act of 1934, which will permit
the undersigned to be able to rely upon Rule 144 to sell such shares.
(c) The undersigned will, and will cause each of the other parties
whose shares are deemed to be beneficially owned by the undersigned pursuant to
Section 7 hereof to, have all shares of Holding Common Stock beneficially owned
by the undersigned registered in the name of the undersigned or such parties, as
applicable, prior to the effective date of the Company Merger and not in the
name of any bank, broker-dealer, nominee or clearinghouse.
(d) The undersigned is aware that Whitney intends to treat the
Company Merger as a tax-free reorganization under Section 368 of the Internal
Revenue Code, as amended (the "Code") for federal income tax purposes. The
undersigned agrees to treat the transaction in the same manner as Whitney for
federal income tax purposes. The undersigned acknowledges that Section
1.368-1(b) of the Income Tax Regulations requires "continuity of interest" in
order for the Company Merger to be treated as a tax-free reorganization under
Section 368 of the Code. This requirement is satisfied if, taking into account
those Holding shareholders who receive cash in exchange for their stock, who
receive cash in lieu of fractional shares, or who dissent from the Company
Merger, holders of the outstanding stock of Holding immediately prior to the
Company Merger, receive in the Company Merger, in the aggregate, an amount of
Whitney Common Stock with a value as of the Effective Time equal to at least 50%
of the total value of all outstanding shares of Holding Common Stock immediately
prior to the Effective Time. Acquisitions by Whitney and certain persons related
to Whitney, in the Company Merger or in a transaction treated as related to the
Company Merger, of shares of Holding Common Stock, or shares of Whitney Common
Stock issued in the Company Merger, for consideration other than Whitney Common
Stock will count against continuity of interest. The undersigned has no
prearrangement, plan or intention to sell or otherwise dispose of the
undersigned's Holding Common Stock or the undersigned's Whitney Common Stock to
be received in the Company Merger, to any Whitney Related Party (as defined
below) for any consideration other than Whitney Common Stock. For purposes of
this paragraph, Whitney
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Related Party shall mean (i) Whitney, (ii) any member of Whitney's affiliated
group as defined in Section 1504 of the Internal Revenue Code of 1986 as amended
(the "Code") without regard to Section 1504(b) of the Code, (iii) any
corporation in which at least fifty percent (50%) of the total combined voting
power of all classes of stock entitled to vote or at least fifty percent (50%)
of the value of all classes of stock is owned directly or indirectly by Whitney,
or (iv) any entity that is treated as a partnership for federal income tax
purposes and has as an owner a corporation described in (i), (ii) or (iii) of
this paragraph.
(e) The undersigned represents and warrants that the undersigned has
not, since [July 30, 2002], been extended credit, had credit maintained, or had
the extension of credit arranged or renewed, in the form of a personal loan by
the Target, except any credit extended by the Bank in compliance with Regulation
O (Title 12 Chapter 2 Part 215 of the Code of Federal Regulations).
(f) The undersigned represents and warrants that, if required to do
so under the Xxxxxxxx-Xxxxx Act, the undersigned has made the certifications
required by Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act and the rules and
regulations of the SEC thereunder with respect to Holding's SEC reports. Such
certifications contain no qualifications or exceptions to the matters certified
therein and have not been modified or withdrawn; and the undersigned has not
received notice from any regulatory authority questioning or challenging the
accuracy, completeness, form or manner of filing or submission of such
certifications.
(g) There is no litigation pending or, to the knowledge of the
undersigned, threatened against the undersigned, in the undersigned's capacity
as director or officer of the Target, pursuant to Section 8A or 20(b) of the
Securities Act or Section 21(d) or 21C of the Securities Exchange Act of 1934,
as amended (the "Exchange Act").
(h) The undersigned represents and warrants that the undersigned has
filed with the SEC on a timely basis all statements required by Section 16(a) of
the Exchange Act. As used in this section, the term "file" shall be broadly
construed to include any manner in which a document or information is furnished,
supplied or otherwise made available to the SEC.
4. Restriction on Transfer. The undersigned understands and agrees that
neither Holding nor Whitney shall be bound by any attempted sale, pledge,
transfer or other disposition of any shares of Holding Common Stock or Whitney
Common Stock, respectively, and Holding's and Whitney's respective transfer
agents shall be given appropriate stop transfer instructions and shall not be
required to register any such attempted sale, transfer or other disposition,
unless in each case it has been effected in compliance with the terms of this
Affiliate Agreement. The undersigned also understands and agrees that there will
be placed on the certificates for shares of Whitney Common Stock received
pursuant to the Company Merger a legend stating in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), APPLIES AND MAY NOT BE SOLD,
PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT OR UNLESS (1)
COVERED BY AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, (2) IN ACCORDANCE WITH RULE 145, OR (3) IN ACCORDANCE WITH A LEGAL
OPINION SATISFACTORY TO COUNSEL FOR WHITNEY HOLDING CORPORATION THAT
SUCH SALE OR TRANSFER IS OTHERWISE EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT."
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Such legend also will be placed on any certificate representing Whitney
securities issued subsequent to the original issuance of Whitney Common Stock
pursuant to the Company Merger as a result of any stock dividend, stock split or
other recapitalization as long as Whitney Common Stock issued to the undersigned
pursuant to the Company Merger has not been transferred in such manner to
justify the removal of the legend therefrom. No legend shall be required if
shares are beneficially owned by a trust corporation or other entity over which
a person does not have control. If the provisions of Rules 144 and 145 are
amended to eliminate restrictions applicable to the Whitney Common Stock
received by the undersigned pursuant to the Company Merger, or at the expiration
of the restrictive period set forth in Rule 145(d), Whitney, upon the request of
the undersigned, will cause the certificates representing the shares of Whitney
Common Stock issued to the undersigned in connection with the Company Merger to
be reissued free of any legend relating to the restrictions set forth in Rules
144 and 145(d) upon receipt by Whitney of an opinion of its counsel to the
effect that such legend may be removed.
5. Understanding of Restrictions on Dispositions. The undersigned has
carefully read this Affiliate Agreement, and discussed with the undersigned's
advisors, the requirements and effects upon its ability to sell, pledge,
transfer or otherwise dispose of the shares of Whitney Common Stock beneficially
owned by the undersigned, to the extent the undersigned believes necessary, with
its counsel.
6. Transfer Under Rule 145(d). If the undersigned desires to sell or
otherwise transfer the shares of Whitney Common Stock received by him or her in
connection with the Company Merger at any time during the restrictive period set
forth in SEC Rule 145(d) the undersigned will provide any necessary
representation letter to the transfer agent for Whitney Common Stock together
with such additional information as the transfer agent may reasonably request.
If Whitney's counsel concludes that such proposed sale or transfer complies with
the requirements of Rule 145(d), Whitney shall cause such counsel to provide
such opinions as may be necessary to Whitney's transfer agent so that the
undersigned may complete the proposed sale or transfer.
7. Acknowledgements. The undersigned recognizes and agrees that the
provisions of this Affiliate Agreement apply to all shares of Holding Common
Stock and Whitney Common Stock directly or indirectly beneficially owned by the
undersigned, including shares owned by (i) the spouse of the undersigned, (ii)
any immediate family member of the undersigned (defined as a child, stepchild,
grandchild, parent, stepparent, grandparent, sibling, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law,
and shall include adoptive relationships) who shares the same household as the
undersigned, (iii) any trust or estate in which the undersigned, such spouse,
and any such relative collectively own at least a 10% beneficial interest or of
which any of the foregoing serves as trustee, executor, or in any similar
capacity, or have or may exercise, either alone or with others, voting or
dispositive power over shares of Holding and/or Whitney, and (iv) any
corporation or other organization in which the undersigned, such spouse, and any
such relative collectively owns at least 10% of any class of equity securities
or of the equity interest, or have or may exercise, either alone or with others,
voting or dispositive power over shares of Holding Common Stock and/or Whitney
Common Stock. Annex A hereto correctly shows all shares of Holding Common Stock
beneficially owned by the undersigned.
8. Prevailing Party. In the event that a party seeks to obtain or
enforce any right or benefit provided by this Affiliate Agreement through
litigation, and in the event that such party prevails in any such litigation
pursuant to which an arbitral panel, court or other regulatory authority issues
a final order, judgment, decree or award grating substantially the relief
sought, then the prevailing party shall be entitled upon demand to be paid by
the other party, all reasonable costs incurred in connection with such
litigation, including the reasonable legal fees and charges of one counsel,
provided no party shall be entitled to any punitive or exemplary damages, which
are hereby waived.
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9. Miscellaneous. This Affiliate Agreement and Annex A are the complete
understanding and agreement between Whitney and the undersigned concerning the
subject matter hereof. Any notice required to be sent to any party hereunder
shall be sent by registered or certified mail, return receipt requested, using
the addresses set forth herein or such other address as shall be furnished in
writing by the parties. This Affiliate Agreement shall be governed by, and
construed in accordance with, the laws of the State of Florida.
[SIGNATURES ON NEXT PAGE]
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This Affiliate Agreement is executed as of the day and year first above
written by and on behalf of each person and entity shown on Annex A, by the
undersigned, acting with full capacity and authority for each individual and
entity named below and on Annex A hereto.
Very truly yours,
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Address for Notices
AGREED TO AND ACCEPTED as of
___________________________, 200__
WHITNEY HOLDING CORPORATION
By:
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Name:
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Title:
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Address for Notices
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ANNEX A
EXHIBIT 5.11(B) TO
AGREEMENT AND PLAN OF MERGER
FORM OF
SHAREHOLDER'S COMMITMENT LETTER
(Letter from any 5% or greater beneficial shareholders of Holding)
_______, 2005
Xx. Xxxxxxx X. Xxxxx
Chairman and CEO
Whitney Holding Corporation
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xx. 00000
Dear Xx. Xxxxx:
In consideration of the benefits I will receive as a shareholder of
First National Bancshares, Inc. ("Holding") from the Agreement and Plan of
Merger dated July 27, 2005 between Holding and 1st National Bank & Trust (the
"Bank"), on the one hand, and Whitney Holding Corporation ("Whitney") and
Whitney National Bank, on the other hand, (the "Merger Agreement"), I agree and
acknowledge as follows:
I agree that I will not, without the prior consent of Whitney, transfer
any of my shares of Holding stock prior to the Effective Date, as that term is
set forth in the Merger Agreement, except by operation of law, by will, or under
the laws of descent and distribution.
I certify that all of the shares of Holding stock that I own
beneficially or of record or control or which I hold the power to sell,
transfer, pledge or otherwise alienate or encumber, including all shares that
would be deemed to be sold for my account by Rule 144 under the Securities Act,
are represented by the following certificates:
Certificate No. Certificate Name No. of shares
I am aware that Holding and Whitney intend to treat the merger between
Holding and Whitney (the "Company Merger") in a manner consistent with Section
368 of the Internal Revenue Code of 1986, as amended. I acknowledge that
applicable tax regulations require "continuity of interest" in order for the
Company Merger to qualify under Section 368. This requirement is satisfied if
prior to the Company Merger (i) shareholders of Holding have not sold or
otherwise disposed of Holding stock and (ii) there is no plan or intention on
the part of the shareholders of Holding to sell or otherwise dispose of Whitney
stock to be received in the Company Merger in an aggregate amount that would
reduce their ownership to a number of shares of Whitney stock having an
aggregate value, at the time of the Company Merger, of less than 50% of the
total fair market value of the Holding stock (other than shares held by the Bank
Xx. Xxxxxxx X. Xxxxx
[o], 2005
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except in a fiduciary capacity for third persons) outstanding immediately prior
to the Company Merger. I have not disposed of a number of shares of Holding
stock and I have no plan or intention to dispose of a number of shares of
Whitney stock to be received by me in the Company Merger that would, taking into
account any plan or intention on the part of other former shareholders of
Holding to dispose of shares of Whitney stock received in the Company Merger,
cause the foregoing requirement not to be satisfied.
I also understand the resale or other disposition of Whitney common
stock that I receive may be governed by Rule 145 of the Securities and Exchange
Commission under the Securities Act of 1933, as amended, which Rule has been
explained to me. I agree not to dispose of or sell any of the Whitney common
stock to be held by me in violation of the Securities Act of 1933, as amended,
or the rules and regulations thereunder.
Capitalized terms used herein and not otherwise defined shall have the
meanings given to them in the Merger Agreement. This letter shall constitute an
irrevocable agreement of the undersigned, and may be revoked only upon the
mutual agreement of the parties. The agreements contained in this letter will
terminate upon any termination of the Merger Agreement under Section 7 of the
Merger Agreement.
Sincerely,
--------------------------------------
[5% or greater beneficial shareholder]
EXHIBIT 6.02(c) TO
AGREEMENT AND PLAN OF MERGER
FORM OF
EMPLOYMENT AGREEMENT TERMINATION AND
PROTECTIVE COVENANT AGREEMENT
THIS EMPLOYMENT AGREEMENT TERMINATION AND PROTECTIVE COVENANT AGREEMENT
(the "Agreement") is entered into by and between Whitney Holding Corporation, a
Louisiana corporation ("Whitney"), Whitney National Bank, a national banking
association ("WNB") (together Whitney and WNB, along with their respective
affiliates, are referred to herein collectively, as the "Company"), on the one
hand, and ______________ ("Executive") on the other hand, as of __________, 2006
and shall become effective on the Closing Date, as defined in that certain
Agreement and Plan of Merger, dated as of July 27, 2005, (the "Merger
Agreement").
WHEREAS, Whitney and WNB, on the one hand, and First National
Bancshares, Inc. ("Holding") and 1st National Bank & Trust (the "Bank"), on the
other hand, (collectively, along with their respective affiliates, referred to
herein as "Target") are parties to the Merger Agreement, whereby Holding will be
merged with and into Whitney and the Bank will be merged with and into WNB, and
Target will join in the execution of this Agreement to acknowledge and accept
the terms hereof;
WHEREAS, Executive is a significant owner of shares of stock in Target,
has been an executive employee of Target, has obtained substantial trade
secrets, confidential information, customer contacts and goodwill in the
marketplace through that employment, and will be employed by the Company
effective as of the Closing Date;
WHEREAS, it is a condition to the consummation of the transactions
contemplated by the Merger Agreement that Executive terminate his
____________________ dated __________, ____ by and between the Bank and
Executive (the "Employment Agreement") and that Executive enter into this
Agreement with the Company and agree to refrain from competing with the Company
as set forth herein;
WHEREAS, Executive is receiving significant consideration for his
shares of stock in Target pursuant to the Merger Agreement;
WHEREAS, WNB is agreeing to pay to Executive (i) a lump sum payment for
termination of the Employment Agreement (the "Termination Consideration") and
(ii) substantial additional compensation during each year of the Protective
Covenant Period as consideration for his entering in to this Agreement (the
"Covenant Consideration"); and
WHEREAS, the Merger Agreement contemplates that, upon the Closing of
the acquisition described in the Merger Agreement, as a condition and inducement
to the willingness of the Company and Target to enter into the Merger Agreement,
Executive will enter into this Agreement with the Company.
IN CONSIDERATION of the Merger Consideration (as defined in the Merger
Agreement) paid to him for his Target stock pursuant to the Merger Agreement,
the payment of the Termination Consideration and the Covenant Consideration, and
for other good and valuable consideration, the independent sufficiency and
receipt of each of which is hereby acknowledged, Executive and the Company,
intending to be legally bound, agree as follows:
1. Consideration.
In consideration of Executive's entering into this Agreement and
abiding by his covenants made herein, the Company agrees to: (i) pay to
Executive Termination Consideration in a lump sum payment in the amount of
___________________________________ ($________) Dollars in satisfaction of the
Change of Control Payments described in Section __ of the Employment Agreement,
such payment to be due and payable on the Closing Date and (ii) pay to Executive
Covenant Consideration in the total amount of __________________________________
($_______) Dollars (_______ of Executive's current annual salary with Holding
and the Bank payable in two annual installments of ___________________________
($______) Dollars, with the first payment due and payable on the first
anniversary of the Closing Date and the subsequent payment due and payable on
the second anniversary of the Closing Date; provided, however, that Executive
shall forfeit all unpaid payment of Covenant Consideration in the event that he
materially breaches any covenant in this Agreement or succeeds in materially
altering the scope of the protections provided to the Company hereunder (by way
of example, reducing the restricted time periods in this Agreement by greater
than six months or the geographic region by more than ten square miles through
either litigation or other formal dispute resolution process).
2. Limitation of Benefits.
Notwithstanding anything in this Agreement to the contrary, in the
event it shall be determined that the payments hereunder, together with any
other benefit, payment or distribution by the Company to or for the benefit of
Executive (collectively hereinafter referred to as "Payments") would, if paid,
constitute an "excess parachute payment" within the meaning of Section 280G of
the Internal Revenue Code of 1986, as amended (the "Code"), with respect to the
transactions contemplated by the Merger Agreement or hereunder, then the
aggregate present value of the Termination Consideration shall be reduced (but
not below zero) to an amount expressed in present value that maximizes the
aggregate present value of the Payments without causing the Payments or any part
thereof to be nondeductible by the Company because of Section 280G of the Code.
For purposes of this Section 2, present value shall be determined in accordance
with Section 280G(d)(4) of the Code. In the event that a final administrative
action of the Internal Revenue Service (the "IRS") increases the amount deemed
to be an "excess parachute payment" within the meaning of Code Section 280G,
then the amount of such increase shall be deemed a conditional payment by the
Company. Executive agrees that he shall promptly remit to the Company, but in no
event later than 20 business days from receipt of notice, the amount of such
conditional payment, including interest thereon, determined at the applicable
federal rate.
3. Termination and Release
Executive acknowledges and agrees that from and after the Effective
Time (as defined in the Merger Agreement) Executive will serve as an at-will
employee of the Company. Executive hereby terminates the Employment Agreement
effective as of the Effective Time, and hereby knowingly, voluntarily,
intentionally and irrevocably releases, acquits, waives and forever discharges
Holding, the Bank, the Company, their respective past, present and future
shareholders, directors, officers, employees, agents, subsidiaries, legal
counsel affiliate and insurers, and their respective legal representatives,
successors and assigns (collectively, the "Released Parties"), of and from any
and all disputes, rights, claims, charges, complaints, debts, liabilities,
obligations, promises, agreements, demands, actions and causes of action of any
nature whatsoever, whether asserted or unasserted, whether known or unknown,
formerly existing, now existing or that might arise hereafter, that the
Executive had, has or may have against any of the Released Parties under or with
respect to the Employment Agreement or the termination thereof, or arising out
of the Executive's employment relationship with Holding and the Bank prior to
the Effective Time. It is acknowledged by Whitney that nothing contained herein
shall limit the Executive's right to be indemnified by Holding or the Bank prior
to the Effective Time, and by Whitney
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thereafter as provided in Section 5.22 of the Merger Agreement, in connection
with Executive serving as an officer or director of Holding or the Bank. Holding
and the Bank also consent to the Executive's disclosure to the Company of any
confidential information of Target and agree to the termination of the
Employment Agreement shall not be construed to have triggered any obligation of
the Executive to return confidential materials to Target.
4. Nondisclosure of Trade Secrets and Confidential Information.
(a) Trade Secrets Defined. "Trade Secrets" means all secret,
proprietary or confidential information regarding the Company or Target or any
of their respective activities that fits within the definition of "trade
secrets" under the Florida Uniform Trade Secrets Act. Without limiting the
foregoing or any definition of Trade Secrets, Trade Secrets protected hereunder
shall include all source codes and object codes for Company or Target software
and all website design information to the extent that such information fits
within the Florida Trade Secrets Act. Nothing in this Agreement is intended, or
shall be construed, to limit the protections or remedies available to the
Company under the Florida Uniform Trade Secrets Act or any other applicable law
protecting trade secrets or other confidential information. "Trade Secrets"
shall not include information that has become generally available to the public
by the act of one who has the right to disclose such information without
violating any right or privilege of the Company or Target. This definition shall
not limit any definition of "trade secrets" or any equivalent term under the
Florida Uniform Trade Secrets Act or any other state, local or federal law.
(b) Confidential Information Defined. "Confidential
Information" means all information regarding the Company or Target and any of
their respective activities, businesses or customers that is not generally known
to persons not employed (as employees or independent agents) by the Company or
Target, that is not generally disclosed by company practice or authority to
persons not employed by the Company or Target and is the subject of reasonable
efforts to keep it confidential. Confidential Information shall include all
customer information, product code, product concepts, production techniques,
technical information regarding Company or Target products or services,
production processes and product/service development, operations techniques,
product/service formulas, information concerning the Company or Target
techniques for use and integration of its respective website and other
products/services, product pricing, current and future development and expansion
or contraction plans of the Company or Target, sale/acquisition plans and
contracts, marketing plans and contracts, information concerning the legal
affairs of the Company or Target and certain information concerning the
strategy, tactics and financial affairs of the Company or Target. "Confidential
Information" shall not include information that has become generally available
to the public by the act of one who has the right to disclose such information
without violating any right or privilege of the Company or Target. This
definition shall not limit any definition of "confidential information" or any
equivalent term under the Florida Uniform Trade Secrets Act or any other
federal, state or local law.
(c) Nondisclosure of Confidential Information. For a period of
five (5) years after the Closing Date, Executive shall hold the Confidential
Information in the strictest confidence and shall not directly or indirectly
transmit or disclose any Confidential Information to any person, concern or
entity, or make use of any such Confidential Information, directly or
indirectly, for himself or for others, without the prior express written consent
of the Chief Executive Officer of Whitney. From the Closing Date and perpetually
thereafter, for so long as the information remains a Trade Secret, Executive
shall not directly or indirectly, for himself or for others, without the prior
express written consent of the Chief Executive Officer of Whitney, transmit or
disclose any Trade Secrets to any person, concern or entity, or make use of any
such Trade Secrets or copy, reproduce, modify, decompile or reverse engineer any
Trade Secrets. Executive warrants that he has not disclosed or used for his own
benefit or the benefit of anyone other than the Target or Company any
Confidential Information or Trade Secrets prior to the execution of this
Agreement. Executive shall take reasonable precautions to protect the physical
security of all documents
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and other material containing Confidential Information or Trade Secrets in his
possession or to which he has access (regardless of the medium on which the
Confidential Information or Trade Secrets is stored). Upon the termination of
Executive's employment with the Company, for any reason or upon the request of
the Chief Executive Officer of Whitney, Executive shall promptly surrender and
deliver to the Company all documents and other written material regardless of
the form or medium of any nature containing or pertaining to any Confidential
Information or Trade Secrets and any other property of the Company and shall not
retain any such document, material or property. Within ten business days of any
such request, Executive shall certify to the Company and the Chief Executive
Officer of Whitney that all such materials have been returned.
(d) Enforceability of Covenants. Executive and the Company
agree that Executive's obligations under these nondisclosure covenants are
separate and distinct from other provisions of this Agreement, and a failure or
alleged failure of the Company to perform its obligations under any provision of
this Agreement or other agreements with the Company shall not constitute a
defense to the enforceability of these nondisclosure covenants. Nothing in this
provision or this Agreement shall limit any rights or remedies otherwise
available to the Company under federal, state or local law.
5. Nonrecruitment, Nonsolicitation and Noncompetition Covenants.
(a) Nonrecruitment of Employees. In consideration of the
compensation and benefits being paid and to be paid by the Company to Executive
hereunder and under the Merger Agreement, Executive hereby agrees that, for two
(2) years following the Closing Date, Executive shall not, directly or
indirectly solicit or recruit for employment or encourage to leave employment
with the Company or any of its affiliate companies, on his own behalf or on
behalf of any other person or entity other than the Company or any affiliate of
the Company, any person with whom Executive worked during Executive's employment
with Target or the Company and who performed services for clients of Target or
the Company or their affiliates or worked on products or services of the Target,
the Company or their affiliates while employed by Target, the Company or their
affiliates and who has not thereafter ceased to be employed by the Target, the
Company or their affiliates for a period of at least one (1) year. Executive
agrees to exercise his best efforts to prevent any of the activities listed in
this Section from occurring.
(b) Nonsolicitation of Customers. In consideration of the
compensation and benefits being paid and to be paid by the Company to Executive
hereunder and under the Merger Agreement, Executive hereby agrees that, for two
(2) years following the Closing Date, Executive shall not, directly or
indirectly, on behalf of himself or of anyone other than the Company or
affiliates of the Company, solicit or attempt to solicit any client or customer
of the Company or Target whom Executive actively solicited or with whom
Executive worked, otherwise had material contact, or with respect to whom he
gained Trade Secrets or Confidential Information, in the course of Executive's
employment with Target or the Company for the purpose of either (1) providing
any financial or related service or product to such client or customer or (2)
inducing such client or customer to cease or restrict its business with the
Company or any of its affiliates. Executive agrees to exercise his best efforts
to prevent any of the activities listed in this Section from occurring.
(c) Noncompetition. In consideration of the compensation and
benefits being paid and to be paid by the Company to Executive hereunder and
under the Merger Agreement, Executive hereby agrees that, for two (2) years
following the Closing Date, Executive shall not, without the prior written
consent of the Chief Executive Officer of Whitney, which consent may be withheld
at the sole discretion of the Chief Executive Officer of Whitney, engage or
participate in, as an officer, director, owner, partner, joint venturer, or in a
managerial capacity as an executive employee, independent contractor, or advisor
in any business or enterprise that competes in the Restricted Area with the
Company, the Target or any of their affiliates, in any Business Activities. For
purposes of this Section 5(c), the "Business Activities"
4
shall be the business activities conducted by Target, and those conducted by the
Company, which include commercial, small business, and retail lending, banking
services, private client services, asset management advisory services, trust,
cash management, brokerage, insurance and mortgage services, and credit, debit
and stored value card services. For purposes of this Section 5(c), the
"Restricted Area" shall be Manatee, Sarasota and Pinellas counties in Florida,
all of which are within the area over which Executive has authority for Target
at the time of executing this Agreement and within which Executive will provide
services to the Company and its affiliates as of the Closing Date. Nothing in
this Section 5(c) shall prohibit Executive from acquiring or holding, for
investment purposes only, less than one percent (1%) of the outstanding
securities of any corporation which may compete directly or indirectly with the
Company or its affiliated companies within the Restricted Area.
(d) Extension of Nonrecruitment, Nonsolicitation and
Noncompetition Covenants. If the Executive is employed by the Company for more
than fifteen (15) months following the Closing Date, then except as set forth
below, the restrictions set forth in Sections 5(a), 5(b) and 5(c) of this
Agreement shall be in effect for nine months following the termination of the
Executive's employment, regardless of the reasons for such termination and
regardless whether such termination is by the Company or by the Executive.
However, in no event shall the restrictions set forth in Sections 5(a), 5(b) and
5(c) extend beyond five (5) years from the Closing Date. Therefore, if the
Executive's employment terminates more than fifty-one months but less than five
years from the Closing Date, the restrictions set forth in Sections 5(a), 5(b)
and 5(c) shall be in effect only from the date of termination to the date five
years after the Closing Date and thereafter the Executive shall not be bound by
such restrictions. If Executive's employment terminates five (5) years or more
after the Closing Date, then he shall not be bound by the restrictions set forth
in Sections 5(a), 5(b) and 5(c) of this Agreement following such termination.
(e) Enforceability of Covenants. Executive acknowledges that
the Company has purchased through the Merger Agreement the Trade Secrets,
Confidential Information, customer relationships and other goodwill of Target
and that the Company has a legitimate business interest in protecting those
items and the benefits of its purchase. Executive further acknowledges that the
Company has a current and future expectation of business within the geographic
areas served by Target and from the current and proposed customers of Target
and/or the Company and that this Agreement is a reasonable means of protecting
the benefits of the Company's purchase and its other legitimate business
interests, including its Trade Secrets and Confidential Information, customer
relationships and other goodwill. Executive acknowledges that the term,
geographic area and scope of the covenants set forth in this Agreement are
reasonable, and agrees that he will not, in any action, suit or other
proceeding, deny the reasonableness of, or assert the unreasonableness of, the
premises, consideration or scope of the covenants set forth herein. Executive
agrees that his position as an executive with Target involved duties and
authority relating to all aspects of the Business Activities and all of the
Restricted Area. Executive further acknowledges that complying with the
provisions contained in this Agreement will not preclude him from engaging in a
lawful profession, trade or business, or from becoming gainfully employed.
Executive and the Company agree that Executive's obligations under the above
covenants are separate and distinct under this Agreement, and the failure or
alleged failure of the Company to perform its obligations under any other
provisions of this Agreement shall not constitute a defense to the
enforceability of these covenants. Executive and the Company agree that if any
portion of the foregoing covenants is deemed to be unenforceable because the
geography, time or scope of activities restricted is deemed to be too broad, the
court shall be authorized to substitute for the overbroad term an enforceable
term that will enable the enforcement of the covenants to the maximum extent
possible under applicable law. Executive agrees that any breach of this covenant
will result in irreparable damage and injury to the Company and its affiliates
and that the Company will be entitled to injunctive relief in any court of
competent jurisdiction without the necessity of posting any bond. Executive also
agrees that he shall be responsible for all damages incurred by the Company or
its affiliates due to any breach of the restrictive covenants contained in this
Agreement. The parties hereto agree and acknowledge that the prevailing
5
party, in any litigation or dispute resolution process to enforce the rights and
obligations of the parties in this Agreement, shall be entitled to recover its
costs and attorneys' fees (from the non-prevailing party) incurred to enforce
the restrictive covenants in this Agreement.
6. Successors.
(a) This Agreement is personal to Executive and without the
prior written consent of Chief Executive Officer of Whitney shall not be
assignable by Executive.
(b) This Agreement may be assigned by, and shall inure to the
benefit of and be binding upon the Company and its respective successors and
assigns.
7. Miscellaneous.
(a) Waiver. Failure of either party to insist, in one or more
instances, on performance by the other in strict accordance with the terms and
conditions of this Agreement shall not be deemed a waiver or relinquishment of
any right granted in this Agreement or of the future performance of any such
term or condition or of any other term or condition of this Agreement, unless
such waiver is contained in a writing signed by the party making the waiver.
(b) Severability. If any provision or covenant, or any part
thereof, of this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
the remaining provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
(c) Governing Law. Except to the extent preempted by federal
law, and without regard to conflict of laws principles, the laws of the State of
Florida shall govern this Agreement in all respects, whether as to its validity,
construction, capacity, performance or otherwise.
(d) Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given if delivered or three days after mailing if
mailed, first class, certified mail, postage prepaid:
To the Company: Whitney Holding Corporation
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Chief Executive Officer
To Executive:
---------------------------------
---------------------------------
---------------------------------
---------------------------------
Any party may change the address to which notices, requests, demands and other
communications shall be delivered or mailed by giving notice thereof to the
other party in the same manner provided herein.
(e) Employment Relationship. Nothing in this Agreement shall
affect Executive's status as an employee at will of the Company following the
Closing Date. The Company may terminate the employment of Executive at any time,
with or without cause.
6
(f) Amendments and Modifications. This Agreement may be
amended or modified only by a writing signed by both parties hereto, which makes
specific reference to this Agreement.
(g) Entire Agreement. Except as provided herein, this
Agreement contains the entire agreement between the Company and the Executive
with respect to the subject matter hereof and, from and after the date hereof,
this Agreement shall supersede any other agreement between the parties with
respect to the subject matter hereof (except the Merger Agreement or any other
written agreements entered into in connection with the Merger Agreement).
(h) Compliance with Code Section 409A. The parties confirm
their intention that none of the payments to Executive under this Agreement are
intended to trigger payment of any penalty tax or interest under Section 409A of
the Code. Consistent with that understanding, the parties agree to amend the
Agreement as necessary so that either the payments hereunder are not subject to
Section 409A of the Code or that the payments hereunder otherwise comply with
the requirements of Section 409A of the Code, provided that such amendments do
not materially change the economic position of either party.
[Signatures on Next Page]
7
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date first above written.
COMPANY:
WHITNEY HOLDING CORPORATION
By:
-----------------------------
Name:
Title:
WHITNEY NATIONAL BANK
By:
-----------------------------
Name:
Title:
EXECUTIVE:
-------------------------
JOINDER OF FIRST NATIONAL BANCSHARES, INC. AND 1ST NATIONAL BANK & TRUST
First National Bancshares, Inc. and 1st National Bank & Trust hereby
join in the execution of this Agreement for the purposes set forth herein.
FIRST NATIONAL BANCSHARES, INC. 1ST NATIONAL BANK & TRUST
By: By:
------------------------------- -----------------------------
Name: Name:
Title: Title:
Date: Date:
----------------------------- ---------------------------
8
EXHIBIT 6.02(c)(ii) TO
AGREEMENT AND PLAN OF MERGER
FORM OF
EMPLOYMENT AGREEMENT TERMINATION AND
PROTECTIVE COVENANT AGREEMENT
THIS EMPLOYMENT AGREEMENT TERMINATION AND PROTECTIVE COVENANT AGREEMENT
(the "Agreement") is entered into by and between Whitney Holding Corporation, a
Louisiana corporation ("Whitney"), Whitney National Bank, a national banking
association ("WNB") (together Whitney and WNB, along with their respective
affiliates, are referred to herein collectively, as the "Company"), on the one
hand, and ______________ ("Executive") on the other hand, as of __________, 2006
and shall become effective on the Closing Date, as defined in that certain
Agreement and Plan of Merger, dated as of July 27, 2005, (the "Merger
Agreement").
WHEREAS, Whitney and WNB, on the one hand, and First National
Bancshares, Inc. ("Holding") and 1st National Bank & Trust (the "Bank"), on the
other hand, (collectively, along with their respective affiliates, referred to
herein as "Target") are parties to the Merger Agreement, whereby Holding will be
merged with and into Whitney and the Bank will be merged with and into WNB, and
Target will join in the execution of this Agreement to acknowledge and accept
the terms hereof;
WHEREAS, Executive is a significant owner of shares of stock in Target,
has been an executive employee of Target, has obtained substantial trade
secrets, confidential information, customer contacts and goodwill in the
marketplace through that employment, and will be employed by the Company
effective as of the Closing Date;
WHEREAS, it is a condition to the consummation of the transactions
contemplated by the Merger Agreement that Executive terminate his
____________________ dated __________, ____ by and between the Bank and
Executive (the "Employment Agreement") and that Executive enter into this
Agreement with the Company and agree to refrain from competing with the Company
as set forth herein;
WHEREAS, Executive is receiving significant consideration for his
shares of stock in Target pursuant to the Merger Agreement;
WHEREAS, WNB is agreeing to pay to Executive (i) a lump sum payment for
termination of the Employment Agreement (the "Termination Consideration") and
(ii) substantial additional compensation during each year of the Protective
Covenant Period as consideration for his entering in to this Agreement (the
"Covenant Consideration"); and
WHEREAS, the Merger Agreement contemplates that, upon the Closing of
the acquisition described in the Merger Agreement, as a condition and inducement
to the willingness of the Company and Target to enter into the Merger Agreement,
Executive will enter into this Agreement with the Company.
IN CONSIDERATION of the Merger Consideration (as defined in the Merger
Agreement) paid to him for his Target stock pursuant to the Merger Agreement,
the payment of the Termination Consideration and the Covenant Consideration, and
for other good and valuable
consideration, the independent sufficiency and receipt of each of which is
hereby acknowledged, Executive and the Company, intending to be legally bound,
agree as follows:
1. Consideration.
In consideration of Executive's entering into this Agreement and
abiding by his covenants made herein, the Company agrees to: (i) pay to
Executive Termination Consideration in a lump sum payment in the amount of
___________________________________ ($________) Dollars in satisfaction of the
Change of Control Payments described in Section __ of the Employment Agreement,
such payment to be due and payable on the Closing Date and (ii) pay to Executive
Covenant Consideration in the total amount of __________________________________
($_______) Dollars (_______ of Executive's current annual salary with Holding
and the Bank payable in two annual installments of ___________________________
($______) Dollars, with such payment to be due and payable on the Closing Date;
provided, however, that Executive shall forfeit all amounts of Covenant
Consideration in the event that he materially breaches any covenant in this
Agreement or succeeds in materially altering the scope of the protections
provided to the Company hereunder (by way of example, reducing the restricted
time periods in this Agreement by greater than six months or the geographic
region by more than ten square miles through either litigation or other formal
dispute resolution process).
2. Limitation of Benefits.
Notwithstanding anything in this Agreement to the contrary, in the
event it shall be determined that the payments hereunder, together with any
other benefit, payment or distribution by the Company to or for the benefit of
Executive (collectively hereinafter referred to as "Payments") would, if paid,
constitute an "excess parachute payment" within the meaning of Section 280G of
the Internal Revenue Code of 1986, as amended (the "Code"), with respect to the
transactions contemplated by the Merger Agreement or hereunder, then the
aggregate present value of the Termination Consideration shall be reduced (but
not below zero) to an amount expressed in present value that maximizes the
aggregate present value of the Payments without causing the Payments or any part
thereof to be nondeductible by the Company because of Section 280G of the Code.
For purposes of this Section 2, present value shall be determined in accordance
with Section 280G(d)(4) of the Code. In the event that a final administrative
action of the Internal Revenue Service (the "IRS") increases the amount deemed
to be an "excess parachute payment" within the meaning of Code Section 280G,
then the amount of such increase shall be deemed a conditional payment by the
Company. Executive agrees that he shall promptly remit to the Company, but in no
event later than 20 business days from receipt of notice, the amount of such
conditional payment, including interest thereon, determined at the applicable
federal rate.
3. Termination and Release
Executive acknowledges and agrees that from and after the Effective
Time (as defined in the Merger Agreement) Executive will serve as an at-will
employee of the Company. Executive hereby terminates the Employment Agreement
effective as of the Effective Time, and hereby knowingly, voluntarily,
intentionally and irrevocably releases, acquits, waives and forever discharges
Holding, the Bank, the Company, their respective past, present and future
shareholders, directors, officers, employees, agents, subsidiaries, legal
counsel affiliate and insurers, and their respective legal representatives,
successors and assigns (collectively, the "Released Parties"), of and from any
and all disputes, rights, claims, charges, complaints, debts, liabilities,
obligations, promises, agreements, demands, actions and causes of action of any
nature whatsoever, whether asserted or unasserted, whether known or unknown,
formerly existing, now
-2-
existing or that might arise hereafter, that the Executive had, has or may have
against any of the Released Parties under or with respect to the Employment
Agreement or the termination thereof, or arising out of the Executive's
employment relationship with Holding and the Bank prior to the Effective Time.
It is acknowledged by Whitney that nothing contained herein shall limit the
Executive's right to be indemnified by Holding or the Bank prior to the
Effective Time, and by Whitney thereafter as provided in Section 5.22 of the
Merger Agreement, in connection with Executive serving as an officer or director
of Holding or the Bank. Holding and the Bank also consent to the Executive's
disclosure to the Company of any confidential information of Target and agree to
the termination of the Employment Agreement shall not be construed to have
triggered any obligation of the Executive to return confidential materials to
Target.
4. Nondisclosure of Trade Secrets and Confidential Information.
(a) Trade Secrets Defined. "Trade Secrets" means all secret,
proprietary or confidential information regarding the Company or Target or any
of their respective activities that fits within the definition of "trade
secrets" under the Florida Uniform Trade Secrets Act. Without limiting the
foregoing or any definition of Trade Secrets, Trade Secrets protected hereunder
shall include all source codes and object codes for Company or Target software
and all website design information to the extent that such information fits
within the Florida Trade Secrets Act. Nothing in this Agreement is intended, or
shall be construed, to limit the protections or remedies available to the
Company under the Florida Uniform Trade Secrets Act or any other applicable law
protecting trade secrets or other confidential information. "Trade Secrets"
shall not include information that has become generally available to the public
by the act of one who has the right to disclose such information without
violating any right or privilege of the Company or Target. This definition shall
not limit any definition of "trade secrets" or any equivalent term under the
Florida Uniform Trade Secrets Act or any other state, local or federal law.
(b) Confidential Information Defined. "Confidential
Information" means all information regarding the Company or Target and any of
their respective activities, businesses or customers that is not generally known
to persons not employed (as employees or independent agents) by the Company or
Target, that is not generally disclosed by company practice or authority to
persons not employed by the Company or Target and is the subject of reasonable
efforts to keep it confidential. Confidential Information shall include all
customer information, product code, product concepts, production techniques,
technical information regarding Company or Target products or services,
production processes and product/service development, operations techniques,
product/service formulas, information concerning the Company or Target
techniques for use and integration of its respective website and other
products/services, product pricing, current and future development and expansion
or contraction plans of the Company or Target, sale/acquisition plans and
contracts, marketing plans and contracts, information concerning the legal
affairs of the Company or Target and certain information concerning the
strategy, tactics and financial affairs of the Company or Target. "Confidential
Information" shall not include information that has become generally available
to the public by the act of one who has the right to disclose such information
without violating any right or privilege of the Company or Target. This
definition shall not limit any definition of "confidential information" or any
equivalent term under the Florida Uniform Trade Secrets Act or any other
federal, state or local law.
(c) Nondisclosure of Confidential Information. For a period of
five (5) years after the Closing Date, Executive shall hold the Confidential
Information in the strictest confidence and shall not directly or indirectly
transmit or disclose any Confidential Information to any person, concern or
entity, or make use of any such Confidential Information, directly or
indirectly, for himself or for others, without the prior express written consent
of the Chief
-3-
Executive Officer of Whitney. From the Closing Date and perpetually thereafter,
for so long as the information remains a Trade Secret, Executive shall not
directly or indirectly, for himself or for others, without the prior express
written consent of the Chief Executive Officer of Whitney, transmit or disclose
any Trade Secrets to any person, concern or entity, or make use of any such
Trade Secrets or copy, reproduce, modify, decompile or reverse engineer any
Trade Secrets. Executive warrants that he has not disclosed or used for his own
benefit or the benefit of anyone other than the Target or Company any
Confidential Information or Trade Secrets prior to the execution of this
Agreement. Executive shall take reasonable precautions to protect the physical
security of all documents and other material containing Confidential Information
or Trade Secrets in his possession or to which he has access (regardless of the
medium on which the Confidential Information or Trade Secrets is stored). Upon
the termination of Executive's employment with the Company, for any reason or
upon the request of the Chief Executive Officer of Whitney, Executive shall
promptly surrender and deliver to the Company all documents and other written
material regardless of the form or medium of any nature containing or pertaining
to any Confidential Information or Trade Secrets and any other property of the
Company and shall not retain any such document, material or property. Within ten
business days of any such request, Executive shall certify to the Company and
the Chief Executive Officer of Whitney that all such materials have been
returned.
(d) Enforceability of Covenants. Executive and the Company
agree that Executive's obligations under these nondisclosure covenants are
separate and distinct from other provisions of this Agreement, and a failure or
alleged failure of the Company to perform its obligations under any provision of
this Agreement or other agreements with the Company shall not constitute a
defense to the enforceability of these nondisclosure covenants. Nothing in this
provision or this Agreement shall limit any rights or remedies otherwise
available to the Company under federal, state or local law.
5. Nonrecruitment, Nonsolicitation and Noncompetition Covenants.
(a) Nonrecruitment of Employees. In consideration of the
compensation and benefits being paid and to be paid by the Company to Executive
hereunder and under the Merger Agreement, Executive hereby agrees that, for two
(2) years following the Closing Date, Executive shall not, directly or
indirectly solicit or recruit for employment or encourage to leave employment
with the Company or any of its affiliate companies, on his own behalf or on
behalf of any other person or entity other than the Company or any affiliate of
the Company, any person with whom Executive worked during Executive's employment
with Target or the Company and who performed services for clients of Target or
the Company or their affiliates or worked on products or services of the Target,
the Company or their affiliates while employed by Target, the Company or their
affiliates and who has not thereafter ceased to be employed by the Target, the
Company or their affiliates for a period of at least one (1) year. Executive
agrees to exercise his best efforts to prevent any of the activities listed in
this Section from occurring.
(b) Nonsolicitation of Customers. In consideration of the
compensation and benefits being paid and to be paid by the Company to Executive
hereunder and under the Merger Agreement, Executive hereby agrees that, for two
(2) years following the Closing Date, Executive shall not, directly or
indirectly, on behalf of himself or of anyone other than the Company or
affiliates of the Company, solicit or attempt to solicit any client or customer
of the Company or Target whom Executive actively solicited or with whom
Executive worked, otherwise had material contact, or with respect to whom he
gained Trade Secrets or Confidential Information, in the course of Executive's
employment with Target or the Company for the purpose of either (1) providing
any financial or related service or product to such client or customer or (2)
inducing
-4-
such client or customer to cease or restrict its business with the Company or
any of its affiliates. Executive agrees to exercise his best efforts to prevent
any of the activities listed in this Section from occurring.
(c) Noncompetition. In consideration of the compensation and
benefits being paid and to be paid by the Company to Executive hereunder and
under the Merger Agreement, Executive hereby agrees that, for two (2) years
following the Closing Date, Executive shall not, without the prior written
consent of the Chief Executive Officer of Whitney, which consent may be withheld
at the sole discretion of the Chief Executive Officer of Whitney, engage or
participate in, as an officer, director, owner, partner, joint venturer, or in a
managerial capacity as an executive employee, independent contractor, or advisor
in any business or enterprise that competes in the Restricted Area with the
Company, the Target or any of their affiliates, in any Business Activities. For
purposes of this Section 5(c), the "Business Activities" shall be the business
activities conducted by Target, and those conducted by the Company, which
include commercial, small business, and retail lending, banking services,
private client services, asset management advisory services, trust, cash
management, brokerage, insurance and mortgage services, and credit, debit and
stored value card services. For purposes of this Section 5(c), the "Restricted
Area" shall be Manatee, Sarasota and Pinellas counties in Florida, all of which
are within the area over which Executive has authority for Target at the time of
executing this Agreement and within which Executive will provide services to the
Company and its affiliates as of the Closing Date. Nothing in this Section 5(c)
shall prohibit Executive from acquiring or holding, for investment purposes
only, less than one percent (1%) of the outstanding securities of any
corporation which may compete directly or indirectly with the Company or its
affiliated companies within the Restricted Area.
(d) Extension of Nonrecruitment, Nonsolicitation and
Noncompetition Covenants. If the Executive is employed by the Company for more
than fifteen (15) months following the Closing Date, then except as set forth
below, the restrictions set forth in Sections 5(a), 5(b) and 5(c) of this
Agreement shall be in effect for nine months following the termination of the
Executive's employment, regardless of the reasons for such termination and
regardless whether such termination is by the Company or by the Executive.
However, in no event shall the restrictions set forth in Sections 5(a), 5(b) and
5(c) extend beyond five (5) years from the Closing Date. Therefore, if the
Executive's employment terminates more than fifty-one months but less than five
years from the Closing Date, the restrictions set forth in Sections 5(a), 5(b)
and 5(c) shall be in effect only from the date of termination to the date five
years after the Closing Date and thereafter the Executive shall not be bound by
such restrictions. If Executive's employment terminates five (5) years or more
after the Closing Date, then he shall not be bound by the restrictions set forth
in Sections 5(a), 5(b) and 5(c) of this Agreement following such termination.
(e) Enforceability of Covenants. Executive acknowledges that
the Company has purchased through the Merger Agreement the Trade Secrets,
Confidential Information, customer relationships and other goodwill of Target
and that the Company has a legitimate business interest in protecting those
items and the benefits of its purchase. Executive further acknowledges that the
Company has a current and future expectation of business within the geographic
areas served by Target and from the current and proposed customers of Target
and/or the Company and that this Agreement is a reasonable means of protecting
the benefits of the Company's purchase and its other legitimate business
interests, including its Trade Secrets and Confidential Information, customer
relationships and other goodwill. Executive acknowledges that the term,
geographic area and scope of the covenants set forth in this Agreement are
reasonable, and agrees that he will not, in any action, suit or other
proceeding, deny the reasonableness of, or assert the unreasonableness of, the
premises, consideration or scope of the
-5-
covenants set forth herein. Executive agrees that his position as an executive
with Target involved duties and authority relating to all aspects of the
Business Activities and all of the Restricted Area. Executive further
acknowledges that complying with the provisions contained in this Agreement will
not preclude him from engaging in a lawful profession, trade or business, or
from becoming gainfully employed. Executive and the Company agree that
Executive's obligations under the above covenants are separate and distinct
under this Agreement, and the failure or alleged failure of the Company to
perform its obligations under any other provisions of this Agreement shall not
constitute a defense to the enforceability of these covenants. Executive and the
Company agree that if any portion of the foregoing covenants is deemed to be
unenforceable because the geography, time or scope of activities restricted is
deemed to be too broad, the court shall be authorized to substitute for the
overbroad term an enforceable term that will enable the enforcement of the
covenants to the maximum extent possible under applicable law. Executive agrees
that any breach of this covenant will result in irreparable damage and injury to
the Company and its affiliates and that the Company will be entitled to
injunctive relief in any court of competent jurisdiction without the necessity
of posting any bond. Executive also agrees that he shall be responsible for all
damages incurred by the Company or its affiliates due to any breach of the
restrictive covenants contained in this Agreement. The parties hereto agree and
acknowledge that the prevailing party, in any litigation or dispute resolution
process to enforce the rights and obligations of the parties in this Agreement,
shall be entitled to recover its costs and attorneys' fees (from the
non-prevailing party) incurred to enforce the restrictive covenants in this
Agreement.
6. Successors.
(a) This Agreement is personal to Executive and without the
prior written consent of Chief Executive Officer of Whitney shall not be
assignable by Executive.
(b) This Agreement may be assigned by, and shall inure to the
benefit of and be binding upon the Company and its respective successors and
assigns.
7. Miscellaneous.
(a) Waiver. Failure of either party to insist, in one or more
instances, on performance by the other in strict accordance with the terms and
conditions of this Agreement shall not be deemed a waiver or relinquishment of
any right granted in this Agreement or of the future performance of any such
term or condition or of any other term or condition of this Agreement, unless
such waiver is contained in a writing signed by the party making the waiver.
(b) Severability. If any provision or covenant, or any part
thereof, of this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
the remaining provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
(c) Governing Law. Except to the extent preempted by federal
law, and without regard to conflict of laws principles, the laws of the State of
Florida shall govern this Agreement in all respects, whether as to its validity,
construction, capacity, performance or otherwise.
-6-
(d) Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given if delivered or three days after mailing if
mailed, first class, certified mail, postage prepaid:
To the Company: Whitney Holding Corporation
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Chief Executive Officer
To Executive:
----------------------
----------------------
----------------------
----------------------
Any party may change the address to which notices, requests, demands and other
communications shall be delivered or mailed by giving notice thereof to the
other party in the same manner provided herein.
(e) Employment Relationship. Nothing in this Agreement shall
affect Executive's status as an employee at will of the Company following the
Closing Date. The Company may terminate the employment of Executive at any time,
with or without cause.
(f) Amendments and Modifications. This Agreement may be
amended or modified only by a writing signed by both parties hereto, which makes
specific reference to this Agreement.
(g) Entire Agreement. Except as provided herein, this
Agreement contains the entire agreement between the Company and the Executive
with respect to the subject matter hereof and, from and after the date hereof,
this Agreement shall supersede any other agreement between the parties with
respect to the subject matter hereof (except the Merger Agreement or any other
written agreements entered into in connection with the Merger Agreement).
(h) Compliance with Code Section 409A. The parties confirm
their intention that none of the payments to Executive under this Agreement are
intended to trigger payment of any penalty tax or interest under Section 409A of
the Code. Consistent with that understanding, the parties agree to amend the
Agreement as necessary so that either the payments hereunder are not subject to
Section 409A of the Code or that the payments hereunder otherwise comply with
the requirements of Section 409A of the Code, provided that such amendments do
not materially change the economic position of either party.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date first above written.
COMPANY:
WHITNEY HOLDING CORPORATION
By:
-----------------------------------------
Name:
Title:
WHITNEY NATIONAL BANK
By:
-----------------------------------------
Name:
Title:
EXECUTIVE:
----------------------------------
JOINDER OF FIRST NATIONAL BANCSHARES, INC. AND 1ST NATIONAL BANK & TRUST
First National Bancshares, Inc. and 1st National Bank & Trust hereby
join in the execution of this Agreement for the purposes set forth herein.
FIRST NATIONAL BANCSHARES, INC. 1ST NATIONAL BANK & TRUST
By: By:
----------------------------------- ---------------------------------
Name: Name:
Title: Title:
Date: Date:
--------------------------------- -------------------------------
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