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EXHIBIT 10.1
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THE TRANSFER OF THIS AGREEMENT AND THE SECURITIES CREATED HEREUNDER IS
SUBJECT TO CERTAIN PROVISIONS CONTAINED HEREIN AND TO RESALE
RESTRICTIONS UNDER THE SECURITIES ACT OF 1933, AS AMENDED
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT ("Agreement"), dated as of April 16, 2000,
between FIRST UNITED BANCSHARES, INC., an Arkansas corporation ("First United"),
and BANCORPSOUTH, INC., a Mississippi corporation ("BancorpSouth").
W I T N E S S E T H:
WHEREAS, BancorpSouth and First United have entered into an Agreement
and Plan of Merger (the "Merger Agreement") concurrently with the execution and
delivery of this Agreement; and
WHEREAS, as a condition to BancorpSouth's entering into the Merger
Agreement, without which BancorpSouth would not have entered into the Merger
Agreement, and in consideration therefor, First United has agreed to grant
BancorpSouth the Option (as hereinafter defined) on the terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein and in the Merger Agreement, the
parties hereto agree as follows:
A G R E E M E N T:
1. Grant of Option.
(a) First United hereby grants to BancorpSouth an unconditional and
irrevocable option (the "Option") to purchase, subject to the terms hereof, up
to an aggregate of 5,056,959 fully paid and nonassessable shares of First
United's Common Stock, $1.00 par value ("First United Common Stock"), at a price
of $12.625 per share (the "Option Price"); provided, however, that in no event
shall the number of shares of First United Common Stock for which this Option is
exercisable exceed 19.9% of First United's issued and outstanding shares of
First United Common Stock without giving effect to any shares subject to or
issued pursuant to the Option. The number of shares of First United Common Stock
that may be received upon the exercise of the Option and the Option Price are
subject to adjustment as herein set forth.
(b) In the event that any additional shares of First United Common
Stock are either (i) issued or otherwise become outstanding after the date of
this Agreement (other than pursuant to this Agreement) or (ii) redeemed,
repurchased, retired or otherwise cease to be outstanding after the date of the
Agreement, the number of shares of First United Common Stock subject to the
Option shall be increased or decreased, as appropriate, so that, after such
issuance, such number equals 19.9% of the number of shares of First United
Common Stock then issued and outstanding without giving effect to any shares
subject or
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issued pursuant to the Option. Nothing contained in this Section 1(b) or
elsewhere in this Agreement shall be deemed to authorize First United or
BancorpSouth to breach any provision of the Merger Agreement.
2. Exercise of the Option.
(a) The Holder (as hereinafter defined) may exercise the Option, in
whole or part, and from time to time, if, but only if, both an Initial
Triggering Event (as hereinafter defined) and a Subsequent Triggering Event (as
hereinafter defined) shall have occurred prior to the occurrence of an Exercise
Termination Event (as hereinafter defined); provided, that the Holder shall have
sent the written notice of such exercise (as provided in subsection (f) of this
Section 2) within 90 days following such Subsequent Triggering Event (or such
later period pursuant to Section 10). The term "Holder" shall mean the
BancorpSouth or any future holder or holders of the Option.
(b) Each of the following shall be an "Exercise Termination Event": (i)
the Effective Time of the Merger; (ii) termination of the Merger Agreement by
First United in accordance with the provisions of Sections 9.1(h) or 9.1(i)
thereof, (iii) termination of the Merger Agreement in accordance with the
provisions thereof (other than by First United pursuant to Sections 9.1(h) or
9.1(i) thereof), if such termination occurs prior to the occurrence of an
Initial Triggering Event (except termination by BancorpSouth pursuant to Section
9.1(e) or Section 9.1(g) of the Merger Agreement, unless the breach by First
United giving rise to such right of termination is non-volitional) (a "Listed
Termination"); or (iv) the passage of 12 months after termination of the Merger
Agreement (or such later period pursuant to Section 10) if such termination
follows the occurrence of an Initial Triggering Event or a Listed Termination.
(c) The term "Initial Triggering Event" shall mean any of the following
events or transactions occurring after the date hereof:
(i) (A) First United or any of its Subsidiaries (each an
"First United Subsidiary"), without having received BancorpSouth's
prior written consent, shall have entered into an agreement to engage
in an Acquisition Transaction (as hereinafter defined) with any person
(the term "person" for purposes of this Agreement having the meaning
assigned thereto in Sections 3(a)(9) and 13(d)(3) of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the rules and
regulations thereunder) other than BancorpSouth or any of its
Subsidiaries (each a "BancorpSouth Subsidiary"), or (B) the Board of
Directors of First United shall have recommended that the shareholders
of First United approve or accept any Acquisition Transaction.
(ii) First United or any First United Subsidiary, without
having received BancorpSouth's prior written consent, shall have
authorized, recommended, proposed or publicly announced its intention
to authorize, recommend or propose, to engage in an Acquisition
Transaction with any person other than BancorpSouth or a BancorpSouth
Subsidiary, or the Board of Directors of First United shall have
publicly withdrawn, modified or qualified, or publicly announced its
intention to withdraw, modify or qualify, in any manner adverse to
BancorpSouth, its recommendation that the shareholders of First United
approve the transactions contemplated by the Merger Agreement in
anticipation of engaging in an Acquisition Transaction;
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(iii) The stockholders of First United shall have voted and
failed to approve the Merger Agreement and the Merger at a meeting
which has been held for that purpose or any adjournment or postponement
thereof, or such meeting shall not have been held in violation of the
Merger Agreement or shall have been canceled prior to termination of
the Merger Agreement if, prior to such meeting (or if such meeting
shall not have been held or shall have been canceled, prior to such
termination), it shall have been publicly announced that any person
(other than BancorpSouth or any BancorpSouth Subsidiary) shall have
made, or disclosed an intention to make, a proposal to engage in an
Acquisition Transaction;
(iv) Any person other than BancorpSouth or any BancorpSouth
Subsidiary shall have filed with the SEC a registration statement or
tender offer materials with respect to a potential exchange or tender
offer that would constitute an Acquisition Transaction (or filed a
preliminary proxy statement with the SEC with respect to a potential
vote by its stockholders to approve the issuance of shares to be
offered in such an exchange offer);
(v) Any person other than BancorpSouth, any BancorpSouth
Subsidiary or any First United Subsidiary acting in a fiduciary
capacity in the ordinary course of its business shall have acquired
beneficial ownership or the right to acquire beneficial ownership of
10% or more of the outstanding shares of First United Common Stock (the
term "beneficial ownership" for purposes of this Agreement having the
meaning assigned thereto in Section 13(d) of the 1934 Act, and the
rules and regulations thereunder);
(vi) Any person other than BancorpSouth or any BancorpSouth
Subsidiary shall have made a bona fide proposal to First United or its
shareholders by public announcement or written communication that is or
becomes the subject of public disclosure to engage in an Acquisition
Transaction;
(vii) After an overture is made by a third party to First
United or its shareholders to engage in an Acquisition Transaction or
in anticipation of an Acquisition Transaction, First United shall have
willfully breached any covenant or obligation contained in the Merger
Agreement and such breach would entitle BancorpSouth to terminate the
Merger Agreement (whether immediately, upon the giving of notice or
passage of time, or both); or
(viii) Any person other than BancorpSouth or any BancorpSouth
Subsidiary, other than in connection with a transaction to which
BancorpSouth has given its prior written consent, shall have filed an
application or notice with the Federal Reserve Board, or other federal
or state bank regulatory authority, which application or notice has
been accepted for processing, for approval to engage in an Acquisition
Transaction.
For purposes of this Agreement, "Acquisition Transaction" shall mean with
respect to any person except BancorpSouth or any BancorpSouth Subsidiary, (1) a
merger or consolidation, or any similar transaction, involving First United or
any "Significant Subsidiary" (as defined in Rule 1-02 of Regulation S-X
promulgated by the Securities and Exchange Commission (the "SEC")) of First
United, (2) a purchase, lease or other acquisition or assumption of all or a
substantial portion of the assets or deposits of First United or any Significant
Subsidiary of First United, (3) a purchase or other acquisition (including by
way of merger, consolidation, share exchange or otherwise) of securities
representing 10% or more of the voting power of
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First United or any Significant Subsidiary of First United, or (4) any
substantially similar transaction;
For purposes of this Agreement, "Subsidiary" shall have the meaning set forth in
Rule 12b-2 under the 1934 Act.
(d) The term "Subsequent Triggering Event" shall mean either of the
following events or transactions occurring after the date hereof:
(i) The acquisition by any person (other than BancorpSouth or
any BancorpSouth Subsidiary) of beneficial ownership of 25% or more of
the then outstanding shares of First United Common Stock; or
(ii) The occurrence of the Initial Triggering Event described
in paragraph (i) of subsection (c) of this Section 2, except that the
percentage referred to in clause (3) of the definition of "Acquisition
Proposal" above shall be deemed to be 25%.
(e) First United shall notify BancorpSouth promptly in writing of the
occurrence of any Initial Triggering Event or Subsequent Triggering Event
(together, a "Triggering Event"), it being understood that the giving of such
notice by First United shall not be a condition to the right of the Holder to
exercise the Option.
(f) In the event the Holder is entitled to and wishes to exercise the
Option (or any portion thereof), it shall send to First United a written notice
(the date of which being herein referred to as the "Notice Date") specifying (i)
the total number of shares of First United Common Stock it will purchase
pursuant to such exercise and (ii) a place and date not earlier than three
business days nor later than 60 business days after the Notice Date for the
closing of such purchase (the "Closing Date"); provided that if prior
notification to or approval of the Federal Reserve Board or any other regulatory
agency is required in connection with such purchase, the Holder shall promptly
file the required notice or application for approval and shall expeditiously
process the same and the period of time that otherwise would run pursuant to
this sentence shall run instead from the date on which any required notification
periods have expired or been terminated or such approvals have been obtained and
any requisite waiting period or periods shall have passed. Any exercise of the
Option shall be deemed to occur on the Notice Date relating thereto.
(g) At the closing referred to in subsection (f) of this Section 2, the
Holder shall pay to First United the aggregate purchase price for the shares of
First United Common Stock purchased pursuant to the exercise of the Option in
immediately available funds by wire transfer to a bank account designated by
First United; provided that failure or refusal of First United to designate such
a bank account or to accept surrender of this Agreement shall not preclude the
Holder from exercising the Option.
(h) At such closing, simultaneously with the delivery of immediately
available funds as provided in subsection (g) of this Section 2, First United
shall deliver to the Holder a certificate or certificates representing the
number of shares of First United Common Stock purchased by the Holder and, if
the Option should be exercised in part only, a new Option evidencing the rights
of the Holder thereof to purchase the balance of the shares purchasable
hereunder.
(i) Certificates for First United Common Stock delivered at a closing
hereunder may be endorsed with a restrictive legend that shall read
substantially as follows:
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"The transfer of the shares represented by this certificate is subject
to certain provisions of an agreement between the registered holder
hereof and First United Bancshares, Inc. (the "Issuer") and to resale
restrictions arising under the Securities Act of 1933, as amended. A
copy of such agreement is on file at the principal office of the Issuer
and will be provided to the holder hereof without charge upon receipt
by the Issuer of a written request therefor."
The parties acknowledge and agree that: (i) the reference to the resale
restrictions of the Securities Act of 1933, as amended (the "1933 Act"), in the
above legend shall be removed by delivery of substitute certificate(s) without
such reference if the Holder shall have delivered to First United a copy of a
letter from the staff of the SEC, or an opinion of counsel, in form and
substance reasonably satisfactory to First United, to the effect that such
legend is not required for purposes of the 1933 Act; (ii) the reference to the
provisions to this Agreement in the above legend shall be removed by delivery of
substitute certificate(s) without such reference if the shares have been sold or
transferred in compliance with the provisions of this Agreement and under
circumstances that do not require the retention of such reference; and (iii) the
legend shall be removed in its entirety if the conditions in the preceding
clauses (i) and (ii) are both satisfied. In addition, such certificates shall
bear any other legend as may be required by law.
(j) Upon the giving by the Holder to First United of the written notice
of exercise of the Option provided for under subsection (f) of this Section 2
and the tender of the applicable purchase price in immediately available funds,
the Holder shall be deemed to be the holder of record of the shares of First
United Common Stock issuable upon such exercise, notwithstanding that the stock
transfer books of First United shall then be closed or that certificates
representing such shares of First United Common Stock shall not then be actually
delivered to the Holder. First United shall pay all expenses, and any and all
United States federal, state and local taxes and other charges that may be
payable in connection with the preparation, issue and delivery of stock
certificates under this Section 2 in the name of the Holder or its assignee,
transferee or designee.
3. Covenants. First United agrees: (i) that it shall at all times maintain, free
from preemptive rights, sufficient authorized but unissued shares of First
United Common Stock so that the Option may be exercised without additional
authorization of First United Common Stock after giving effect to all other
options, warrants, convertible securities and other rights to purchase First
United Common Stock; (ii) that it will not, by amendment of its articles of
incorporation or through reorganization, consolidation, merger, dissolution or
sale of assets, or by any other voluntary act, avoid or seek to avoid the
observance or performance of any of the covenants, stipulations or conditions to
be observed or performed hereunder by First United; (iii) promptly to take all
action as may from time to time be required (including (A) complying with all
premerger notification, reporting and waiting period requirements specified in
15 U.S.C. Section 18a and regulations promulgated thereundeR and (B) in the
event, under the Bank Holding Company Act of 1956, as amended (the "BHCA"), or
the Change in Bank Control Act of 1978, as amended, or any state banking law,
prior approval of or notice to the Federal Reserve Board or to any state
regulatory authority is necessary before the Option may be exercised,
cooperating fully with the Holder in preparing such applications or notices and
providing such information to the Federal Reserve Board or such state regulatory
authority as they may require) in order to permit the Holder to exercise the
Option and First United duly and effectively to issue shares of First United
Common Stock pursuant hereto; and (iv) promptly to take all action provided
herein to protect the rights of the Holder against dilution.
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4. Exchange and Replacement. This Agreement (and the Option granted hereby) are
exchangeable, without expense, at the option of the Holder, upon presentation
and surrender of this Agreement at the principal office of First United, for
other Agreements providing for Options of different denominations entitling the
holder thereof to purchase, on the same terms and subject to the same conditions
as are set forth herein, in the aggregate the same number of shares of First
United Common Stock purchasable hereunder. The terms "Agreement" and "Option" as
used herein include any Stock Option Agreements and related Options for which
this Agreement (and the Option granted hereby) may be exchanged. Upon receipt by
First United of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Agreement, and (in the case of loss, theft or
destruction) of reasonably satisfactory indemnification, and upon surrender and
cancellation of this Agreement, if mutilated, First United will execute and
deliver a new Agreement of like tenor and date. Any such new Agreement executed
and delivered shall constitute an additional contractual obligation on the part
of First United, whether or not the Agreement so lost, stolen, destroyed or
mutilated shall at any time be enforceable by anyone.
5. Anti-Dilution Adjustments. In addition to the adjustment in the number of
shares of First United Common Stock that are purchasable upon exercise of the
Option pursuant to Section 1 of this Agreement, the number of shares of First
United Common Stock purchasable upon the exercise of the Option and the Option
Price shall be subject to adjustment from time to time as provided in this
Section 5. In the event of any change in, or distributions in respect of, the
First United Common Stock by reason of a stock dividend, stock split, split-up,
merger, recapitalization, combination, subdivision, conversion, exchange of
shares, distribution on or in respect of the First United Common Stock that
would be prohibited under the terms of the Merger Agreement, or the like, the
type and number of shares or securities subject to the Option, and the Option
Price therefor, shall be appropriately adjusted in such manner as shall fully
preserve the economic benefits provided hereunder and proper provision shall be
made in any agreement governing any such transaction to provide for such proper
adjustment and the full satisfaction of the First United's obligations
hereunder, so that the Holder shall receive, upon exercise of the Option, the
number and class of shares or other securities or property that the Holder would
have received in respect of First United Common Stock if the Option had been
exercised immediately prior to such event, or the record date therefor, as
applicable. If any additional shares of First United Common Stock are issued
after the date of this Agreement (other than pursuant to an event described in
the first sentence of this Section 5), the number of shares of First United
Common Stock subject to the Option shall be adjusted so that, after such
issuance, it, together with any shares of First United Common Stock previously
issued pursuant hereto, equals 19.9% of the number of shares of First United
Common Stock then issued and outstanding, without giving effect to any shares
subject to or issued pursuant to the Option.
6. Registration Rights. Upon the occurrence of a Subsequent Triggering Event
that occurs prior to an Exercise Termination Event, First United shall, at the
request of Holder delivered within 180 days following such Subsequent Triggering
Event (whether on its own behalf or on behalf of any subsequent holder of this
Option (or part thereof) or any of the shares of First United Common Stock
issued pursuant hereto), promptly prepare, file and keep current a shelf
registration statement under the 1933 Act covering this Option and any shares
issued and issuable pursuant to this Option and shall use its reasonable best
efforts to cause such registration statement to become effective and remain
current in order to permit the sale or other disposition of this Option and any
shares of First United Common Stock issued upon total or partial exercise of
this Option ("Option Shares") in accordance with any plan of disposition
requested by Holder. First United will use its reasonable best efforts to cause
such registration statement first to become effective and then to remain
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effective for such period not in excess of 180 days from the day such
registration statement first becomes effective or such shorter time as may be
reasonably necessary to effect such sales or other dispositions. Holder shall
have the right to demand two such registrations. The First United shall bear the
costs of such registrations (including, but not limited to, First United's
attorneys' fees, printing costs and filing fees, but excluding underwriting
discounts or commissions, brokers' fees and the fees and disbursements of
Holder's counsel related to the Option or Option Shares). The foregoing
notwithstanding, if, at the time of any request by Holder for registration of
the Option or Option Shares as provided above, First United is in registration
with respect to an underwritten public offering by First United of shares of
First United Common Stock, and if in the good faith judgment of the managing
underwriter or managing underwriters, or, if none, the sole underwriter or
underwriters, of such offering the inclusion of the Option or the Option Shares
would interfere with the successful marketing of the shares of First United
Common Stock offered by First United, the number of Option Shares otherwise to
be covered in the registration statement contemplated hereby may be reduced;
provided, however, that after any such required reduction the number of Option
Shares to be included in such offering for the account of the Holder shall
constitute at least 25% of the total number of shares to be sold by the Holder
and First United in the aggregate; and provided further, however, that if such
reduction occurs, then First United shall file a registration statement for the
balance as promptly as practicable and no reduction pursuant to this Section 6
shall be permitted or occur and the Holder shall thereafter be entitled to one
additional registration, and the 180 day period referenced in the first sentence
of this Section 6 shall be deemed to be 360 days. Each such Holder shall provide
all information reasonably requested by First United for inclusion in any
registration statement to be filed hereunder. If requested by any such Holder in
connection with such registration, First United shall become a party to any
underwriting agreement relating to the sale of such shares, but only to the
extent of obligating itself in respect of representations, warranties,
indemnities and other agreements customarily included in secondary offering
underwriting agreements for First United. Upon receiving any request under this
Section 6 from any Holder, First United agrees to send a copy thereof to any
other person known to First United to be entitled to registration rights under
this Section 6, in each case by promptly mailing the same, postage prepaid, to
the address of record of the persons entitled to receive such copies.
Notwithstanding anything to the contrary contained herein, in no event shall
First United be obligated to effect more than two registrations pursuant to this
Section 6 by reason of the fact that there shall be more than one Holder as a
result of any assignment or division of this Agreement.
7. Repurchase.
(a) At BancorpSouth's Option. At any time after the occurrence of a
Repurchase Event (as defined below), (i) at the request of the Holder, delivered
prior to an Exercise Termination Event (or such later period pursuant to Section
10), First United (or any successor thereto) shall repurchase the Option from
the Holder at a price (the "Option Repurchase Price") equal to the amount by
which (A) the Market/Offer Price (as defined below) exceeds (B) the Option
Price, multiplied by the number of shares of First United Common Stock for which
this Option may then be exercised and (ii) at the request of the owner of Option
Shares from time to time (the "Owner"), delivered prior to a Repurchase Event
(or such later period pursuant to Section 10), First United (or any successor
thereto) shall repurchase such number of the Option Shares from the Owner as the
Owner shall designate at a price (the "Option Share Repurchase Price") equal to
the Market/Offer Price multiplied by the number of Option Shares so designated.
For purposes of this Agreement, the term "Market/Offer Price" shall
mean the highest of (i) the price per share of First United Common Stock at
which a tender offer or
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exchange offer therefor has been made, (ii) the price per share of First United
Common Stock to be paid by any third party pursuant to an agreement with First
United, (iii) the highest closing price for shares of First United Common Stock
within the six-month period immediately preceding the date the Holder gives
notice of the required repurchase of the Option or the Owner gives notice of the
required repurchase of Option Shares, as the case may be, or (iv) in the event
of a sale of all or a substantial portion of First United's assets or deposits,
the sum of the price paid in such sale for such assets or deposits and the
current market value of the remaining net assets of First United as determined
by a nationally recognized investment banking firm selected by the Holder or the
Owner, as the case may be, and reasonably acceptable to First United, divided by
the number of shares of First United Common Stock outstanding at the time of
such sale. In determining the Market/Offer Price, the value of consideration
other than cash shall be determined by a nationally recognized investment
banking firm selected by the Holder or Owner, as the case may be, and reasonably
acceptable to First United.
The Holder and the Owner, as the case may be, may exercise its right to
require First United to repurchase the Option and any Option Shares pursuant to
this Section 7 by surrendering for such purpose to First United, at its
principal office, a copy of this Agreement or certificates for Option Shares, as
applicable, accompanied by a written notice or notices stating that the Holder
or the Owner, as the case may be, elects to require First United to repurchase
this Option and/or the Option Shares in accordance with the provisions of this
Section 7. As promptly as practicable, and in any event within five business
days after the surrender of the Option and/or certificates representing Option
Shares and the receipt of such notice or notices relating thereto, First United
shall deliver or cause to be delivered to the Holder the Option Repurchase Price
and/or to the Owner the Option Share Repurchase Price therefor or the portion
thereof that First United is not then prohibited under applicable law and
regulation from so delivering.
(b) At First United's Option. At any time after the occurrence of a
Repurchase Event, (i) at the request of First United to the Holder, delivered
prior to an Exercise Termination Event (or such later period pursuant to Section
10), First United (or any successor thereto) may repurchase the Option from the
Holder at the Option Repurchase Price, and (ii) at the request of First United
to the Owner, delivered prior to a Repurchase Event (or such later period
pursuant to Section 10), First United (or any successor thereto) may repurchase
the Option Shares (except with respect to Option Shares that have theretofore
been transferred by the Holder to an unaffiliated third party) from the Owner at
the Option Share Repurchase Price.
First United may exercise its right to repurchase the Option and any
Option Shares pursuant to this Section 7 by surrendering for such purpose to
Holder or Owner, as applicable, United, at its principal office, a written
notice or notices stating that First United elects to repurchase this Option
and/or the Option Shares in accordance with the provisions of this Section 7. As
promptly as practicable, and in any event within five business days after the
surrender of the Option and/or certificates representing Option Shares and the
receipt of such notice or notices relating thereto, First United shall deliver
or cause to be delivered to the Holder the Option Repurchase Price and/or to the
Owner the Option Share Repurchase Price therefor.
(c) Regulatory Restrictions. To the extent that First United is
prohibited under applicable law or regulation, or as a consequence of
administrative policy, from repurchasing the Option and/or the Option Shares in
full, First United shall immediately so notify the Holder and/or the Owner and
thereafter deliver or cause to be delivered, from time to time, to the Holder
and/or the Owner, as appropriate, the portion of the Option Repurchase Price and
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the Option Share Repurchase Price, respectively, that it is no longer prohibited
from delivering, within five business days after the date on which First United
is no longer so prohibited; provided, however, that if First United at any time
after delivery of a notice of repurchase pursuant to paragraph (b) of this
Section 7 is prohibited under applicable law or regulation, or as a consequence
of administrative policy, from delivering to the Holder and/or the Owner, as
appropriate, the Option Repurchase Price and the Option Share Repurchase Price,
respectively, in full (and First United hereby undertakes to use its best
efforts to obtain all required regulatory and legal approvals and to file any
required notices as promptly as practicable in order to accomplish such
repurchase), the Holder or Owner may revoke its notice of repurchase of the
Option or the Option Shares either in whole or to the extent of the prohibition,
whereupon, in the latter case, First United shall promptly (i) deliver to the
Holder and/or the Owner, as applicable, that portion of the Option Repurchase
Price or the Option Share Repurchase Price that First United is not prohibited
from delivering; and (ii) deliver, as applicable, either (A) to the Holder, a
new Agreement evidencing the right of the Holder to purchase that number of
shares of First United Common Stock obtained by multiplying the number of shares
of First United Common Stock for which the surrendered Agreement was exercisable
at the time of delivery of the notice of repurchase by a fraction, the numerator
of which is the Option Repurchase Price less the portion thereof theretofore
delivered to the Holder and the denominator of which is the Option Repurchase
Price, and/or (B) to the Owner, a certificate for the Option Shares it is then
so prohibited from repurchasing. If an Exercise Termination Event shall have
occurred prior to the date of the notice by First United described in the first
sentence of this subsection (c), or should be scheduled to occur at any time
before the expiration of a period ending on the 30th day after such date, the
Holder shall nonetheless have the right to exercise the Option until the
expiration of such 30-day period.
(d) For purposes of this Section 7, a "Repurchase Event" shall be
deemed to have occurred upon the occurrence of any of the following events or
transactions after the date hereof:
(i) the acquisition by any person (other than BancorpSouth or
any BancorpSouth Subsidiary) of beneficial ownership of 50% or more of
the then outstanding shares of First United Common Stock; or
(ii) the consummation of any Acquisition Transaction described
in Section 2 hereof, except that the percentage of voting power
referred to in clause (3) thereof shall be deemed to be 25%.
8. Successor Issuer.
(a) In the event that prior to an Exercise Termination Event, First
United shall enter into an agreement (i) to consolidate with or merge into any
person, other than BancorpSouth or a BancorpSouth Subsidiary, or engage in a
plan of exchange with any person other than BancorpSouth or a BancorpSouth
Subsidiary, and First United shall not be the continuing or surviving
corporation of such consolidation or merger or the acquirer in such plan of
exchange, (ii) to permit any person, other than BancorpSouth or a BancorpSouth
Subsidiary, to merge into First United or be acquired by First United in a plan
of exchange and First United shall be the continuing or surviving corporation,
but, in connection with such merger or plan of exchange, the then outstanding
shares of First United Common Stock shall be changed into or exchanged for stock
or other securities of any other person or cash or any other property or the
then outstanding shares of First United Common Stock shall after such merger or
plan of exchange represent less than 50% of the outstanding voting shares and
voting share equivalents of the merged or acquiring company, or (iii) to sell or
otherwise transfer all or substantially all of its or any First United
Subsidiary's assets or deposits to
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any person, other than BancorpSouth or a BancorpSouth Subsidiary, then, and in
each such case, the agreement governing such transaction shall make proper
provision so that the Option shall, upon the consummation of any such
transaction and upon the terms and conditions set forth herein, be converted
into, or exchanged for, an option (the "Substitute Option"), at the election of
the Holder, of either (x) the Acquiring Corporation (as hereinafter defined) or
(y) any person or entity that controls the Acquiring Corporation.
(b) The following terms have the meanings indicated:
(i) "Acquiring Corporation" shall mean (A) the continuing or
surviving person of a consolidation or merger with First United (if
other than First United), (B) the acquiring person in a plan of
exchange in which First United is acquired, (C) the First United in a
merger or plan of exchange in which First United is the continuing or
surviving or acquiring person, and (D) the transferee of all or
substantially all of First United's assets or deposits (or the assets
or deposits of any First United Subsidiary).
(ii) "Substitute Common Stock" shall mean the common stock
issued by the issuer of the Substitute Option upon exercise of the
Substitute Option.
(iii) "Assigned Value" shall mean the Market/Offer Price, as
defined in Section 7.
(iv) "Average Price" shall mean the average closing price of a
share of the Substitute Common Stock for the one year immediately
preceding the consolidation, merger or sale in question, but in no
event higher than the closing price of the shares of Substitute Common
Stock on the day preceding such consolidation, merger or sale;
provided, that if First United is the issuer of the Substitute Option,
the Average Price shall be computed with respect to a share of common
stock issued by the person merging into First United or by any company
which controls or is controlled by such person, as the Holder may
elect.
(c) The Substitute Option shall have the same terms as the Option;
provided, that if the terms of the Substitute Option cannot, for legal reasons,
be the same as the Option, such terms shall be as similar as possible and in no
event less advantageous to the Holder. The issuer of the Substitute Option shall
also enter into an agreement with the then Holder or Holders of the Substitute
Option in substantially the same form as this Agreement (after giving effect for
such purpose to the provisions of Section 9), which agreement shall be
applicable to the Substitute Option.
(d) The Substitute Option shall be exercisable for such number of
shares of Substitute Common Stock as is equal to the Assigned Value multiplied
by the number of shares of First United Common Stock for which the Option was
exercisable immediately prior to the event described in the first sentence of
Section 8(a) above, divided by the Average Price. The exercise price of the
Substitute Option per share of Substitute Common Stock shall then be equal to
the Option Price multiplied by a fraction, the numerator of which shall be the
number of shares of First United Common Stock for which the Option was
exercisable immediately prior to the event described in the first sentence of
Section 8(a) above and the denominator of which shall be the number of shares of
Substitute Common Stock for which the Substitute Option is exercisable.
(e) In no event, pursuant to any of the foregoing paragraphs, shall the
Substitute Option be exercisable for more than 19.9% of the shares of Substitute
Common Stock
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outstanding prior to exercise of the Substitute Option. In the event that the
Substitute Option would be exercisable for more than 19.9% of the shares of
Substitute Common Stock outstanding prior to exercise but for this subsection
(e), the issuer of the Substitute Option (the "Substitute Option Issuer") shall
make a cash payment to the Holder equal to the excess of (i) the value of the
Substitute Option without giving effect to the limitation in this subsection (e)
over (ii) the value of the Substitute Option after giving effect to the
limitation in this subsection (e). This difference in value shall be determined
by a nationally recognized investment banking firm selected by the Holder.
(f) First United shall not enter into any transaction described in
subsection (a) of this Section 8 unless the Acquiring Corporation and any person
that controls the Acquiring Corporation assume in writing all the obligations of
First United hereunder.
9. Successor Repurchase.
(a) At the request of the holder of the Substitute Option (the
"Substitute Option Holder"), the Substitute Option Issuer shall repurchase the
Substitute Option from the Substitute Option Holder at a price (the "Substitute
Option Repurchase Price") equal to the amount by which (i) the Highest Closing
Price (as hereinafter defined) exceeds (ii) the exercise price of the Substitute
Option, multiplied by the number of shares of Substitute Common Stock for which
the Substitute Option may then be exercised, and at the request of the owner
(the "Substitute Share Owner") of shares of Substitute Common Stock (the
"Substitute Shares"), the Substitute Option Issuer shall repurchase the
Substitute Shares at a price (the "Substitute Share Repurchase Price") equal to
the Highest Closing Price multiplied by the number of Substitute Shares so
designated. The term "Highest Closing Price" shall mean the highest closing
price for shares of Substitute Common Stock within the 180 day period
immediately preceding the date the Substitute Option Holder gives notice of the
required repurchase of the Substitute Option or the Substitute Share Owner gives
notice of the required repurchase of the Substitute Shares, as applicable.
(b) The Substitute Option Holder and the Substitute Share Owner, as the
case may be, may exercise its respective right to require the Substitute Option
Issuer to repurchase the Substitute Option and the Substitute Shares pursuant to
this Section 9 by surrendering for such purpose to the Substitute Option Issuer,
at its principal office, the agreement for such Substitute Option (or, in the
absence of such an agreement, a copy of this Agreement) and/or certificates for
Substitute Shares accompanied by a written notice or notices stating that the
Substitute Option Holder or the Substitute Share Owner, as the case may be,
elects to require the Substitute Option Issuer to repurchase the Substitute
Option and/or the Substitute Shares in accordance with the provisions of this
Section 9. As promptly as practicable, and in any event within five business
days after the surrender of the Substitute Option and/or certificates
representing Substitute Shares and the receipt of such notice or notices
relating thereto, the Substitute Option Issuer shall deliver or cause to be
delivered to the Substitute Option Holder the Substitute Option Repurchase Price
and/or to the Substitute Share Owner the Substitute Share Repurchase Price
therefor or, in either case, the portion thereof which the Substitute Option
Issuer is not then prohibited under applicable law and regulation from so
delivering.
(c) To the extent that the Substitute Option Issuer is prohibited under
applicable law or regulation, or as a consequence of administrative policy, from
repurchasing the Substitute Option and/or the Substitute Shares in part or in
full, the Substitute Option Issuer shall immediately so notify the Substitute
Option Holder and/or the Substitute Share Owner and thereafter deliver or cause
to be delivered, from time to time, to the Substitute Option Holder and/or the
Substitute Share Owner, as appropriate, the portion of the
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Substitute Share Repurchase Price, respectively, which it is no longer
prohibited from delivering, within five business days after the date on which
the Substitute Option Issuer is no longer so prohibited; provided, however, that
if the Substitute Option Issuer is at any time after delivery of a notice of
repurchase pursuant to subsection (b) of this Section 9 prohibited under
applicable law or regulation, or as a consequence of administrative policy, from
delivering to the Substitute Option Holder and/or the Substitute Share Owner, as
appropriate, the Substitute Option Repurchase Price and the Substitute Share
Repurchase Price, respectively, in full (and the Substitute Option Issuer shall
use its best efforts to obtain all required regulatory and legal approvals as
promptly as practicable in order to accomplish such repurchase), the Substitute
Option Holder or Substitute Share Owner may revoke its notice of repurchase of
the Substitute Option or the Substitute Shares either in whole or to the extent
of the prohibition, whereupon, in the latter case, the Substitute Option Issuer
shall promptly (i) deliver to the Substitute Option Holder or Substitute Share
Owner, as appropriate, that portion of the Substitute Option Repurchase Price or
the Substitute Share Repurchase Price that the Substitute Option Issuer is not
prohibited from delivering; and (ii) deliver, as applicable, either (A) to the
Substitute Option Holder, a new Substitute Option evidencing the right of the
Substitute Option Holder to purchase that number of shares of the Substitute
Common Stock obtained by multiplying the number of shares of the Substitute
Common Stock for which the surrendered Substitute Option was exercisable at the
time of delivery of the notice of repurchase by a fraction, the numerator of
which is the Substitute Option Repurchase Price less the portion thereof
theretofore delivered to the Substitute Option Holder and the denominator of
which is the Substitute Option Repurchase Price, and/or (B) to the Substitute
Share Owner, a certificate for the Substitute Common Shares it is then so
prohibited from repurchasing. If an Exercise Termination Event shall have
occurred prior to the date of the notice by the Substitute Option Issuer
described in the first sentence of this subsection (c), or shall be scheduled to
occur at any time before the expiration of a period ending on the 30th day after
such date, the Substitute Option Holder shall nevertheless have the right to
exercise the Substitute Option until the expiration of such 30 day period.
10. Certain Extensions of Exercise Period. The periods for exercise of
certain rights under Sections 2, 6, 7, 9 and 11 shall be extended: (i) to the
extent necessary to obtain all regulatory approvals for the exercise of such
rights and for the expiration of all statutory waiting periods; (ii) to the
extent necessary to avoid liability under Section 16(b) of the 1934 Act by
reason of such exercise; and (iii) to the extent that there exists an
injunction, order or judgment that prohibits or delays exercise of such right.
11. Surrender.
(a) Holder may, at any time following a Repurchase Event and prior to
the occurrence of an Exercise Termination Event (or such later period pursuant
to Section 10), relinquish the Option (together with any Option Shares issued to
and then owned by Holder) to First United in exchange for a cash fee equal to
the Surrender Price (as hereinafter defined). The "Surrender Price" shall be
equal to (x) $22,500,000 plus, if applicable, (y) Holder's purchase price with
respect to any Option Shares, and minus, if applicable, (z) the excess of (1)
the net price, if any, received by Holder or a Holder Subsidiary pursuant to the
sale of Option Shares (or any other securities into which such Option Shares
were converted or exchanged) to any unaffiliated party, over (2) Holder's
purchase price of such Option Shares.
(b) Holder may exercise its right to relinquish the Option and any
Option Shares pursuant to this Section 11 by surrendering to First United, at
its principal office, a copy of this Agreement together with certificates for
Option Shares, if any, accompanied by a written
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notice stating (i) that Holder elects to relinquish the Option and Option
Shares, if any, in accordance with the provisions of this Section 11 and (ii)
the Surrender Price. The Surrender Price shall be payable in immediately
available funds on or before the second business day following receipt of such
notice by First United.
(c) To the extent that First United is prohibited under applicable law
or regulation, or as a consequence of administrative policy, from paying the
Surrender Price to Holder in full, First United shall immediately so notify
Holder and thereafter deliver or cause to be delivered, from time to time, to
Holder, the portion of the Surrender Price that it is no longer prohibited from
paying, within five business days after the date on which First United is no
longer so prohibited; provided, however, that if First United at any time after
delivery of a notice of surrender pursuant to subsection (b) of this Section 11
is prohibited under applicable law or regulation, or as a consequence of
administrative policy, from paying to Holder the Surrender Price in full, then
(i) First United shall (A) use its reasonable best efforts to obtain all
required regulatory and legal approvals and to file any required notices as
promptly as practicable in order to make such payments, (B) within five business
days after the submission or receipt of any documents relating to any such
regulatory and legal approvals, provide Holder with copies of the same, and (C)
keep Holder advised of both the status of any such request for regulatory and
legal approvals, as well as any discussions with any relevant regulatory or
other third party reasonably related to the same, and (ii) Holder may revoke
such notice of surrender by delivery of a notice of revocation to First United
and, upon delivery of such notice of revocation, the Exercise Termination Date
shall be extended to a date 90 days following the date on which the Exercise
Termination Date would have occurred if not for the provisions of this Section
11(c) (during which period Holder may exercise any of its rights hereunder,
including any and all rights pursuant to this Section 11).
12. Maximum Total Profit. Notwithstanding any other provision of this Agreement
to the contrary, in no event shall Holder's Total Profit (as defined below)
exceed $22,500,000, and, if such Total Profit would otherwise exceed
$22,500,000, Holder, at its election in its sole discretion, shall either (i)
reduce the number of shares of First United Common Stock subject to the Option,
(ii) deliver to First United for cancellation without consideration Option
Shares previously purchased by Holder, (iii) pay cash to First United, or (iv)
any combination of the foregoing, such that Holder's actually realized Total
Profit shall not exceed $22,500,000 after taking into account the foregoing
actions.
As used in this Agreement, the term "Total Profit" shall mean the
aggregate sum (prior to the payment of taxes) of the following: (a) the amount
of Option Repurchase Price received by Holder pursuant to First United's
repurchase of the Option (or any portion thereof) pursuant to Section 7 hereof;
plus (b) the difference of (i) the amount of Option Share Repurchase Price
received by Holder pursuant to First United's repurchase of Option Shares
pursuant to Section 7 hereof, less (ii) Holder's purchase price for such Option
Shares; plus (c) the difference of (i) the net cash amounts received by Holder
pursuant to the sale of Option Shares (or any other securities into which such
Option Shares shall be converted or exchanged) to any unaffiliated person, less
(ii) Holder's purchase price of such Option Shares; plus (d) any amounts
received by BancorpSouth on the transfer of the Option (or any portion thereof)
to any unaffiliated person; plus (e) the amount of Surrender Price received by
Holder pursuant to relinquishment of the Option and Option Shares to First
United pursuant to Section 11 hereof.
The provisions of this Section 12 shall apply to any Substitute Option.
The parties hereto agree that this Section 12 shall not, and shall not
be deemed to, limit, prejudice or restrict any money damages, injunctive relief
or other legal or equitable
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remedy or relief available to BancorpSouth with respect to any breach of the
Merger Agreement or this Agreement.
13. Representations and Warranties.
(a) By First United. First United hereby represents and warrants
to BancorpSouth as follows:
(i) First United has full corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have been duly
and validly authorized by the Board of Directors of First United and no
other corporate proceedings on the part of First United are necessary
to authorize this Agreement or to consummate the transactions so
contemplated. This Agreement has been duly and validly executed and
delivered by First United and is enforceable against First United in
accordance with its terms.
(ii) First United has taken all necessary corporate action to
authorize and reserve and to permit it to issue, and at all times from
the date hereof through the termination of this Agreement in accordance
with its terms will have reserved for issuance upon the exercise of the
Option, that number of shares of First United Common Stock equal to the
maximum number of shares of First United Common Stock at any time and
from time to time issuable hereunder, and all such shares, upon
issuance pursuant hereto, will be duly authorized, validly issued,
fully paid, nonassessable, and will be delivered free and clear of all
claims, liens, encumbrance and security interests and not subject to
any preemptive rights.
(b) By BancorpSouth. BancorpSouth hereby represents and warrants to
First United as follows:
(i) BancorpSouth has all requisite corporate power and
authority to enter into this Agreement and, subject to any approvals or
consents referred to herein, to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary corporate action on the part of
BancorpSouth. This Agreement has been duly executed and delivered by
BancorpSouth.
(ii) The Option is not being, and any shares of First United
Common Stock or other securities acquired by BancorpSouth upon exercise
of the Option will not be, acquired by BancorpSouth with a view to the
public distribution thereof and will not be transferred or otherwise
disposed of by BancorpSouth except in a transaction registered under or
exempt from registration under the 1933 Act.
14. Assignment. Neither of the parties hereto may assign any of its rights
or obligations under this Agreement or the Option created hereunder to any other
person, without the express written consent of the other party, except that in
the event a Subsequent Triggering Event shall have occurred prior to an Exercise
Termination Event, BancorpSouth, subject to the express provisions hereof, may
assign in whole or in part its rights and obligations hereunder; provided,
however, that until the date 15 days following the date on which the Federal
Reserve Board approves an application by BancorpSouth under the BHCA to acquire
the shares of First United Common Stock subject to the Option, BancorpSouth may
not
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assign its rights under the Option except in (i) a widely dispersed public
distribution, (ii) a private placement in which no one party acquires the right
to purchase in excess of 2% of the voting shares of First United, (iii) an
assignment to a single party (e.g., a broker or investment banker) for the
purpose of conducting a widely dispersed public distribution on BancorpSouth's
behalf, or (iv) any other manner approved by the Federal Reserve Board.
15. Best Efforts. Each of BancorpSouth and First United will use its reasonable
best efforts to make all filings with, and to obtain consents of, all third
parties and governmental authorities necessary to the consummation of the
transactions contemplated by this Agreement, including, without limitation,
making application to authorize for quotation the shares of First United Common
Stock issuable hereunder on any exchange or market on which shares of First
United Common Stock may be listed or quoted upon official notice of issuance and
applying to the Federal Reserve Board under the BHCA for approval to acquire the
shares issuable hereunder, but BancorpSouth shall not be obligated to apply to
state banking authorities for approval to acquire the shares of First United
Common Stock issuable hereunder until such time, if ever, as it deems
appropriate to do so.
16. Miscellaneous.
(a) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (with
confirmation), mailed by registered or certified mail (return receipt requested)
or delivered by an express courier (with confirmation) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(i) if to BancorpSouth, to: BancorpSouth, Inc.
Xxx Xxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not
constitute notice) to: Xxxxxx Xxxxxxx Xxxxxx & Xxxxx,
A Professional Limited
Liability Company
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
and
(ii) if to First United, to: First United Bancshares, Inc.
Main and Xxxxxxxxxx Xxxxxxx
Xx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
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with a copy (which shall not
constitute notice) to: Mitchell, Williams, Xxxxx, Gates &
Xxxxxxxx, PLLC
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
(b) Interpretation. In this Agreement, unless a contrary intention
appears, the words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular Section or
other subdivision. Whenever the words "include", "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation." The phrases "the date of this Agreement", "the date
hereof" and terms of similar import, unless the context otherwise requires,
shall be deemed to refer to April 16, 2000. Unless the context otherwise
requires, when used in this Agreement, (i) the singular shall include the
plural, the plural shall include the singular, and all nouns, pronouns and any
variations thereof shall be deemed to refer to the masculine, feminine or
neuter, as the identity of the person or persons may require, and (ii) the term
"or" shall mean "and/or." The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. The parties hereto have each negotiated the
terms hereof, reviewed this Agreement carefully, and discussed it with their
respective legal counsel. It is the intent of the parties that each word, phrase
and sentence and other part hereof shall be given its plain meaning. No
provision of this Agreement shall be interpreted or construed against any party
hereto solely because such party or its legal representative drafted such
provision.
(c) Defined Terms. Capitalized terms used in this Agreement and not
defined herein shall have the meanings assigned thereto in the Merger Agreement,
and shall be applicable to the singular and the plural forms of such terms,
except as otherwise provided herein.
(d) Counterparts. This Agreement may be executed in counterparts, all
of which shall be considered one and the same instrument and shall become
effective when counterparts have been signed by each of the parties and
delivered to the other party hereto, it being understood that all parties need
not sign the same counterpart.
(e) Entire Agreement. This Agreement constitutes the entire agreement
and supersedes all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof, other than the
Merger Agreement.
(f) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Mississippi, without regard to the
conflicts of laws principles of any jurisdiction. The parties agree that the
venue for resolution of any dispute arising out of this Agreement shall be a
court of competent jurisdiction in Mississippi or Arkansas.
(g) Enforcement of Agreement. The parties hereto agree that irreparable
damage would occur in the event that the provisions contained in this Agreement
were not performed in accordance with its specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions thereof in any court of the United States
or any state having jurisdiction, without having to post bond therefor or prove
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actual damages, this being in addition to any other remedy to which they are
entitled at law or in equity.
(h) Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable. If for any reason a court or regulatory
agency determines that the Holder is not permitted to acquire, or First United
is not permitted to repurchase pursuant to Section 7, the full number of shares
of First United Common Stock provided in Section 1(a) hereof (as adjusted
pursuant to Section 1(b) or 5 hereof), it is the express intention of the
parties to allow the Holder to acquire, or to require or permit First United to
repurchase pursuant to Section 7, such lesser number of shares of First United
Common Stock as may be permissible, without any amendment or modification
hereof.
(i) Waiver. No delay or omission on the part of any party hereto in
exercising any right hereunder shall operate as a waiver of such right or any
other right under this Agreement. No single or partial exercise of any right,
power or privilege hereunder shall preclude any other or further exercise
thereof.
(j) Expenses. All costs and expenses, including legal, accounting and
financial advisory fees and expenses, incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the party incurring
such costs and expenses.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized, all as of the
date first above written.
FIRST UNITED BANCSHARES, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
Chairman and Chief Executive Officer
BANCORPSOUTH, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxxx
Chairman and Chief Executive Officer
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