EXHIBIT 10.6
AGREEMENT AND PLAN OF MERGER
OF
BANKFIRST
AND
FIRST NATIONAL BANK OF GATLINBURG
This Agreement and Plan of Merger is made this 16th day of January, 1997,
by and among Smoky Mountain Bancorp, Inc., a Tennessee corporation registered as
a bank holding company, with its principal offices at 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxx (hereinafter "Parent"), BankFirst, a Tennessee corporation
with its principal offices at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000
(hereinafter "BankFirst"), and First National Bank of Gatlinburg, a national
banking association with its principal offices at 000 Xxxxxxx, Xxxxxxxxxx,
Xxxxxxxxx (hereinafter "First National").
W I T N E S S E T H:
WHEREAS, the authorized capital stock of BankFirst consists of (i) Ten
Million (10,000,000) shares of Common Stock, par value $5.00 per share (the
"BankFirst Common Stock"), of which One Million One Hundred Fifty-Four Thousand
One Hundred Fifty-Two (1,154,152) shares are authorized, issued and outstanding
as of this date, and (ii) Five Hundred Thousand (500,000) shares of Preferred
Stock, par value $5.00 per share (the "BankFirst Preferred Stock"), of which Two
Hundred Twenty-Five Thousand Five Hundred Fifty-Nine (225,559) shares are
authorized, issued and outstanding as of this date; and
WHEREAS, Parent is the owner of all of the issued and outstanding shares
of BankFirst Common Stock and BankFirst Preferred Stock; and
WHEREAS, the authorized capital stock of First National consists of (i)
Two Hundred Thousand (200,000) shares of Common Stock, par value Ten ($10.00)
Dollars per share (the "First National Common Stock"), of which Ninety-Four
Thousand Six Hundred Forty-Five (94,645) shares are issued and outstanding as of
this date; and
WHEREAS, Parent is the owner of all of the issued and outstanding shares
of First National Common Stock; and
WHEREAS, Parent proposes to merge First National into BankFirst, with
BankFirst becoming the surviving corporation and "Resulting Bank", as that term
is used in Tennessee Code Annotated, Section 45-2-1301(7); and
WHEREAS, pursuant to Tennessee Code Annotated, Sections 45-2-1304 and
45-2-1305, the Board of Directors of Parent, BankFirst, and First National, and
Parent as the sole Shareholder of both BankFirst and First National, are
entitled to vote on the Merger; and
WHEREAS, the purpose of this Agreement and Plan of Merger is to set forth
the terms and conditions of the Merger for consideration and approval by the
Board of Directors of Parent, BankFirst and First National, and by Parent as the
sole Shareholder of BankFirst and First National.
NOW, THEREFORE, in consideration of the mutual covenants, agreements and
provisions herein contained, the parties agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms have the definitions
indicated:
"Agreement" means this Agreement and Plan of Merger, and all exhibits
annexed to and incorporated by specific reference as a part of this Agreement.
"Audited Financial Statements of BankFirst" shall have the meaning
assigned to such term in Section 7.5 of this Agreement.
"BankFirst" shall mean BankFirst, a Tennessee banking corporation
headquartered at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx Xxxxxx, Xxxxxxxxx 00000.
"BankFirst Common Stock" shall mean the Five Dollar ($5.00) par value
common stock of which Ten Million (10,000,000) shares are authorized and One
Million One Hundred Fifty-Four Thousand One Hundred Fifty-Two (1,154,152) shares
are issued and outstanding.
"BankFirst Financial Statements" shall mean the Audited Financial
Statements and the Unaudited Financial Statements described in Section 7.5.
"BankFirst Preferred Stock" shall mean the Five Dollar ($5.00) par value
Non-Cumulative Convertible Preferred Stock of which Five Hundred Thousand
(500,000) shares are authorized and Two Hundred Twenty-Five Thousand Five
Hundred Fifty-Nine (225,559) shares are issued and outstanding.
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"BankFirst Subsidiary" shall mean Eastern Life Insurance Company, a duly
chartered and validly existing corporation chartered under the laws of the State
of Tennessee, headquartered at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx Xxxxxx,
Xxxxxxxxx 00000.
"Constituent Corporations" shall mean the two corporations being merged,
which are BankFirst and First National.
"Effective Date" shall have the meaning assigned to it in Section 3.2 of
this Agreement; provided, however, the Effective Date may be extended if
governmental approvals have not been obtained.
"FDIC" shall mean the Federal Deposit Insurance Corporation.
"First National" shall mean First National Bank of Gatlinburg, a national
banking association headquartered at 000 Xxxxxxx, Xxxxxxxxxx, Xxxxxx Xxxxxx,
Xxxxxxxxx 00000.
"First National Common Stock" shall mean the Ten ($10.00 Dollar par value
common stock of which Two Hundred Thousand (200,000) shares are authorized and
Ninety-Four Thousand Six Hundred Forty-Five (94,645) shares are issued and
outstanding.
"First National's Financial Statements" shall have the meaning specified
in Section 8.5 of this Agreement.
"GAAP" shall mean Generally Accepted Accounting Principles, consistently
applied.
"Government Approvals" shall have the meaning assigned to such term in
Section 6.4 of this agreement.
"Merger" shall mean the merger of First National Bank into BankFirst, with
BankFirst being the Surviving Corporation and Resulting Bank, as described in
Section 3.1 of this Agreement.
"Merging Banks" shall mean BankFirst and First National Bank of
Gatlinburg.
"Parent" shall mean Smoky Mountain Bancorp, Inc., a corporation chartered
and existing under the laws of the State of Tennessee which is registered as a
bank holding company and has its principal office at 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxx Xxxxxx, Xxxxxxxxx 00000.
"Parent Preferred Stock" shall mean the One Million (1,000,000) shares of
authorized $5.00 par value Preferred Stock of Parent, of which Two Hundred
Twenty-Five Thousand Five Hundred Fifty-Nine (225,559) shares are now issued and
outstanding.
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"Parent Voting Common Stock" shall mean the Ten Million (10,000,000)
shares of authorized voting Common Stock of Parent, $2.50 par value, of which
Nine Hundred Ninety-Three Thousand Four Hundred Thirty-Six (993,436) shares are
now issued and outstanding, and of which Ninety-One Thousand One Hundred
Seventeen (91,117) shares are being held by Parent as treasury stock.
"Parent's Financial Statements" shall have the meaning specified in
Section 6.6 of this Agreement.
"Resulting Bank" shall have the definition assigned to it in Section
45-2-1301(7) of the Tennessee Code, and for the purposes of this Agreement shall
mean BankFirst, which is also referred to herein as the Surviving Corporation.
"Surviving Corporation" shall mean the surviving corporation of the
Merger, which for the purposes of this Agreement shall mean BankFirst, which is
also referred to herein as the Resulting Bank.
"TDFI" shall mean the Tennessee Department of Financial Institutions.
ARTICLE II
MERGING BANKS
Section 2.1 Names and Addresses of Merging Banks. The names and addresses
of the principal offices of the Merging Banks are as follows:
(1) BankFirst
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
(2) First National Bank of Gatlinburg
000 Xxxxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Section 2.2 Location of Each Office or Branch of BankFirst. The addresses
of each office or branch of BankFirst is listed on Exhibit A attached hereto and
made a part hereof.
Section 2.3 Location of Each Office or Branch of First National. The
addresses of each offices or branch of First National is listed on Exhibit B
attached hereto and made a part hereof.
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ARTICLE III
THE MERGER
Section 3.1 Merger. Subject to the terms and conditions of this Merger
Agreement, First National shall be merged with and into BankFirst in accordance
with the General Corporation Law of the State of Tennessee, the Title 45, Banks
and Financial Institutions, Tennessee Code Annotated ss.45-1-101, et seq., and
the Rules and Regulations of the Federal Deposit Insurance Corporation. The
separate existence of First National shall cease, and BankFirst shall be the
surviving corporation and the Resulting State Bank, and shall continue its
corporate existence under the laws of the State of Tennessee as a wholly owned
subsidiary of Parent.
Section 3.2 Effective Date of the Merger. The Merger shall become
effective when a properly approved and executed Certificate of Merger is duly
issued by the Commissioner of Financial Institutions for the State of Tennessee
and submitted to the Secretary of State for the State of Tennessee pursuant to
T.C.A. Section 45-2-1306. When used in this Agreement, the term "Effective Date"
shall mean the date and time at which such Certificate is so filed, and the
effective date shall be March 21, 1997, provided the regulatory approvals are
obtained and the Certificate of Merger is filed..
ARTICLE IV
THE SURVIVING CORPORATION AND RESULTING BANK
Section 4.1 Name of Surviving Corporation and Resulting Bank. At the
effective date, BankFirst shall become the Surviving Corporation and Resulting
Bank from the Merger.
Section 4.2 Charter of Incorporation. At the Effective Date, the Amended
and Restated Charter of BankFirst shall be the Charter of Incorporation of
Surviving Corporation and Resulting Bank, and thereafter may be amended in
accordance with its terms and as provide by law.
Section 4.3 Bylaws. The Bylaws of BankFirst as in effect on the Effective
Date shall be the Bylaws of the Resulting Bank.
Section 4.4 Board of Directors. From and after the Effective Date, the
Board of Directors of BankFirst shall be the Board of Directors of the Resulting
Bank. Members of the Board of Directors will be selected, and vacancies will be
filled, in accordance with the Charter of Incorporation and the Bylaws of
BankFirst. As of the Effective Date, the members of the Board of Directors of
the Resulting Bank shall be those listed on Exhibit C attached hereto and made a
part hereof.
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Section 4.5 Officers. From and after the Effective Date, the officers of
the Resulting Bank shall be those officers listed on Exhibit D attached hereto
and made a part hereof. After the Effective Date, the Board of Directors of the
Resulting Bank may make changes in the officers in accordance with the law and
as provided by the Charter of Incorporation and the Bylaws of BankFirst.
Section 4.6 Location of Principal Office. The location of the principal
office of the Resulting Bank shall be BankFirst, 000 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000.
Section 4.7 Location of Each Additional Office and/or Branch. The address
of each office and/or branch of the Resulting Bank shall be those listed on
Exhibit E attached hereto and made a part hereof. Each of these locations were
originally locations of one of the Merging Banks, and it is contemplated that
all of the officers of BankFirst and First National will continue to be
operated.
ARTICLE V
STOCK OWNERSHIP AFTER MERGER
Section 5.1 Cancellation of Shares. As of the Effective Date, Parent shall
cancel all of the authorized, issued and outstanding shares of First National
Common Stock and First National Preferred Stock.
Section 5.2 Ownership of BankFirst Shares. As of the date of this
agreement and as of the Effective Date, Parent shall own all of the authorized,
issued and outstanding shares of BankFirst Common Stock and BankFirst Preferred
Stock.
Section 5.3 Closing of First National Transfer Books. The stock transfer
books of First National were closed when the Parent acquired First National in
1989, and there have not been, nor will there be any transfer of First National
Common Stock or First National Preferred Stock..
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to BankFirst and First National as follows:
Section 6.1 Organization. Parent is a bank holding corporation duly
organized, validly existing and in good standing under the laws of the State of
Tennessee, and (i) has, in all material respects, all requisite corporate power
and authority to own, operate and lease its material properties and carry on its
business as it is currently being conducted; (ii) is in good standing and is
duly
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qualified to do business in each jurisdiction where the character of its
properties owned or held under lease or by nature of its business make such
qualification necessary; and (iii) has in effect all federal, state and local
governmental authorizations, permits and licenses necessary for it to own or
lease its properties and assets and to carry on its business as it is currently
being conducted. The corporate charter and bylaws of Parent, as amended to date,
are in full force and effect.
Section 6.2 Capitalization. The authorized capital stock of Parent
consists of Three Million (3,000,000) shares of voting Common Stock of par value
of Two Dollars and Fifty Cents ($2.50) per share ("Parent Voting Common Stock");
and One Million shares of Preferred Stock of par value of Five Dollars ($5.00)
per share ("Parent Preferred Stock"). As of the date of this Agreement, Nine
Hundred Ninety-Three Thousand Four Hundred Thirty-Six (993,436) shares of Parent
Common Stock are issued and outstanding; and Two Hundred Twenty-Five Thousand
Five Hundred Fifty-Nine (225,559) shares of Parent Preferred Stock are issued
and outstanding. In addition, Parent is holding Ninety-One Thousand One Hundred
Seventeen (91,117) shares of Parent Common Stock and Parent Preferred Stock as
treasury stock. All of the outstanding Parent Common Stock is validly issued,
fully paid, and non-assessable, and has not been issued in violation of any
preemptive rights of any shareholder of Parent. All of the outstanding Parent
Preferred Stock is validly issued, fully paid and non-assessable and has not
been issued in violation of any preemptive rights of any shareholder of Parent.
Section 6.3 Authority Relative to this Agreement. Parent has the corporate
power to enter into this Agreement and to carry out its obligations under this
Agreement. The execution and delivery of this Agreement and the consummation of
the transactions contemplated by this Agreement have been duly authorized by
Parent's Board of Directors, and, no other corporate proceedings on the part of
the Parent are necessary to authorize this Agreement and the transactions
contemplated by this Agreement. Parent is not subject to or obligated under (i)
any charter, bylaw, indenture, or other loan document provision or (ii) any
other contract, license, franchise, permit, order or decree, which would be
breached or violated by Parent executing and carrying out this Agreement. The
Parent is the sole shareholder of BankFirst and First National, and has given
its approval to the merger as required by Tennessee Code Annotated ss.45-2-1305.
Section 6.4 Government Approvals. No consent, approval, order or
authorization of, or registration, declaration or filing with, any federal,
state or local governmental authority is required to be made or obtained by
Parent in connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated herein by Parent. BankFirst shall
file the appropriate application with the FDIC to obtain its prior approval of
this Agreement; and the appropriate documentation to obtain the prior approval
of the Tennessee Department of Financial Institutions ("TDFI") under Section
45-2-1304 of the Tennessee Code and the regulations promulgated by the TDFI
thereunder (collectively, the "Government Approvals").
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Section 6.5 No Legal Bar. Parent is not a party to, subject to or bound
by, any agreement, judgment, order, writ, prohibition, injunction or decree of
any court or other governmental body of competent jurisdiction which would
prevent the execution of this Agreement by Parent, its delivery to BankFirst and
First National or the consummation of the transactions contemplated hereby, and
no action or proceeding is pending against Parent in which the validity of this
Agreement, any of the transactions contemplated hereby or any action which has
been taken by any of the parties in connection herewith or in connection with
any of the transactions contemplated here is at issue.
Section 6.6 Reports and Financial Statements. Parent has delivered and, to
the extent reference is made to financial statements not yet available or
capable of development, will deliver to BankFirst and First National true and
complete copies of: (i) Parent's audited Consolidated Financial Statements for
the calendar years ended December 31, 1995 and 1994; and (ii) Parent's unaudited
and consolidated financial statements for each of the calendar quarters in
calendar year 1996 and thereafter, ending prior to the Effective Date. Such
financial statements and the notes thereto present fairly, or will present
fairly when issued, in all material respects, the consolidated financial
position of Parent as of the respective dates thereof and the consolidated
results of operations and consolidated cash flow of Parent for the periods
indicated, and in each case in conformity with GAAP consistently applied and
maintained.
Section 6.7 Absence of Certain Changes of Events. Since December 31, 1996,
there has not been any material adverse change in the financial condition or in
the result of operations or the businesses, properties, assets, or liabilities
of Parent and its subsidiary, taken as a whole.
Section 6.8 Litigation. Except as disclosed in Parent's Financial
Statements, there is no suit, action or proceeding pending or, to the knowledge
of Parent, threatened against or affecting Parent or any of its subsidiaries,
which, if adversely determined, would materially and adversely affect the
financial condition, business or results of operations of Parent and its
subsidiaries, taken as a whole; nor is there any judgment, decree, injunction,
rule or order of any court, governmental department, commission, agency,
instrumentality, or arbitration outstanding against Parent or any of its
subsidiaries having, or which, insofar as can reasonably be foreseen, in the
future may have, any such effect.
Section 6.9 Disclosure. The information concerning, and the
representations or warranties made by Parent as set forth in this Agreement, or
in any document, statement, certificate or other writing furnished or to be
furnished by Parent to BankFirst or First National pursuant hereto, do not and
will not contain any untrue statement of material fact or omit and will not omit
to state a material fact required to be stated herein or therein which is
necessary to make the statements and facts contained herein or therein, in light
of the circumstances under which they were or are made, not false or misleading.
Copies of all documents heretofore or hereafter delivered or made available to
BankFirst or First National by Parent pursuant hereto were or will be complete
and accurate copies of such document.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF BANKFIRST
Both as of the date hereof and as of the Effective Date, BankFirst
represents and warrants to Parent and First National as follows:
Section 7.1 Organization and Qualification of BankFirst. BankFirst is a
state-chartered banking corporation duly organized, validly existing and in good
standing under the laws of the State of Tennessee and (i) has all requisite
corporate power and authority to own, operate and lease its material properties
and to carry on its material business as it is currently being conducted; (ii)
is in good standing and is duly qualified to do business in each jurisdiction
where the character of its material properties owned or held under lease or the
nature of its material business makes such qualification necessary; (iii) has in
effect all federal state and local government authorizations, permits and
licenses necessary for it to own or leases its properties and assets and to
carry on its business as it is currently being conducted; and (iv) its deposit
accounts are insured by the FDIC to the fullest extent permitted under
applicable law. BankFirst is not a member of the Federal Reserve System. The
BankFirst subsidiary, Eastern Life Insurance Company, is duly chartered, validly
existing and in good standing under the laws of the state of its incorporation
and (i) has all requisite corporate power and authority to own, operate and
lease its material properties and to carry on its material business as it is
currently being conducted and (ii) is in good standing and is duly qualified to
do business in each jurisdiction where the character of its material properties
owned or held under lease or the nature of its material business makes such
qualification necessary; and (iii) has in effect all federal, state and local
government authorizations, permits and licenses necessary for it to own or
leases its properties and assets and to carry on its business as it is currently
being conducted. BankFirst engages only in activities (and holds properties only
of the types) permitted by the Tennessee Code for Tennessee state-chartered
banks. The corporate charter and bylaws of BankFirst and its subsidiary, as
amended to date, are in full force and effect.
Section 7.2 Authorization, Execution and Delivery; Agreement Not in
Breach.
(a) BankFirst has all requisite power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby
and thereby. The execution and delivery of this Agreement and the consummation
of the proposed transactions have been duly authorized by a unanimous vote of
the entire Board of Directors of BankFirst and, except for the approval of the
sole Shareholder of BankFirst, no other corporate proceedings on the part of
BankFirst are necessary to authorize the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby and
thereby. This Agreement and all other agreements and instruments herein
contemplated to be executed by BankFirst have been (or upon execution will have
been) duly executed and delivered by BankFirst and constitute (or upon execution
will constitute) legal, valid and enforceable obligations of BankFirst, subject,
as to enforceability, to applicable bankruptcy, insolvency, receivership,
conservatorship, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and to the application of equitable
principles and judicial discretion.
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(b) The execution and delivery of this Agreement, the consummation
of the transactions contemplated hereby and thereby, and the fulfillment of the
terms hereof and thereof will not result in a violation or breach of any of the
material terms or provisions of, or constitute a default under (or an event
which, with the passage of time or the giving of notice, or both, would
constitute a default under), or conflict with, or permit the acceleration of,
any obligation under any mortgage, lease, covenant, agreement, indenture or
other instrument to which BankFirst or the BankFirst Subsidiary is a party or by
which BankFirst or the BankFirst Subsidiary is bound; the Charter or Bylaws of
BankFirst; or any judgment, decree, order, regulatory letter of understanding or
award of any court, governmental body, authority or arbitrator by which
BankFirst or the BankFirst Subsidiary is bound; or any material permit,
concession, grant, franchise, license, law, statute, ordinance, rule or
regulation applicable to BankFirst or the BankFirst Subsidiary or the properties
of any of them; or result in the creation of any material lien, claim, security
interest, encumbrance, charge, restriction or right of any third party of any
kind whatsoever upon the properties or assets of BankFirst or the BankFirst
Subsidiary.
Section 7.3 No Legal Bar. BankFirst is not a party to, or subject to, or
bound by, any agreement or judgment, order, letter of understanding, writ,
prohibition, injunction or decree of any court or other governmental authority
or body which would prevent the execution of this Agreement by BankFirst, the
delivery thereof to Parent or the consummation of the transaction contemplated
hereby and thereby, and no action or proceeding is pending against BankFirst in
which the validity of this Agreement, the transaction contemplated hereby or any
action which has been taken by any of the parties in connection herewith or in
connection with the transaction contemplated hereby is at issue.
Section 7.4 Government and Other Approvals. BankFirst shall file the
appropriate application with the FDIC and the Tennessee Department of Financial
Institutions seeking their prior approval of the merger as set forth under this
Agreement.
Section 7.5 BankFirst Financial Statements. BankFirst has delivered true
copies of its audited consolidated balance sheets as of December 31, 1995, 1994
and 1993, and the related consolidated statements of income and stockholders'
equity and cash flows of BankFirst for the years ended December 31, 1995, 1994
and 1993 (the "Audited Financial Statements of BankFirst") and the comparative
interim (or annual) financial statements for any subsequent quarter (or year)
ending after December 31, 1995 and prior to the Effective Date. Such financial
statements (i) were (or will be) prepared from the books and records of
BankFirst; (ii) were (or will be) prepared in accordance with generally accepted
accounting principles consistently applied; (iii) accurately present (or will
present) BankFirst's consolidated financial condition and the consolidated
results of its operations as at the relevant dates thereof and for the periods
covered thereby; (iv) do contain or reflect (or will contain and reflect) all
necessary adjustments and accruals for an accurate presentation of BankFirst's
consolidated financial condition and the consolidated results of BankFirst's
operations for the periods covered by such Financial Statements; and (v) do
contain and reflect (or will contain and reflect) adequate provisions for loan
losses, for ORE reserves and for all reasonably anticipated liabilities for all
taxes, federal, state, or local, with respect to the periods then
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ended.
Section 7.6 Records and Documents. The records of BankFirst are and will
be sufficient to enable BankFirst to continue conducting its business as a
Tennessee-chartered state bank under similar standards as BankFirst has
heretofore conducted such business.
Section 7.7 Capitalization of BankFirst. The authorized capital stock of
BankFirst consists of Ten Million (10,000,000) shares of common stock having a
par value of $5.00 per share (the "BankFirst Common Stock") and Five Hundred
Thousand (500,000) shares of noncumulative convertible preferred stock
("BankFirst Preferred Stock"). As of the date of this Agreement, 1,154,152
shares of BankFirst Common Stock are issued and outstanding and no BankFirst
Common Stock is held by BankFirst as treasury stock. All of the outstanding
BankFirst Common Stock is validly issued, fully paid and nonassessable and has
not been issued in violation of any preemptive rights of any BankFirst
shareholder. As of the date of this Agreement, 225,559 shares of BankFirst
Preferred Stock shares are issued and outstanding and no BankFirst Preferred
Stock is held by BankFirst as treasury stock. All of the outstanding BankFirst
Preferred Stock is validly issued, fully paid and nonassessable and has not been
issued in violation of any preemptive rights of any BankFirst shareholder. All
of the issued and outstanding shares of BankFirst are presently held by Parent
pursuant to a Plan of Share Exchange which was approved by the Federal Reserve
Board on November 9, 1996 and consummated on December 31, 1996.
Section 7.8 Disclosure. The information concerning, and representations
and warranties made by, BankFirst set forth in this Agreement, or in any
document, statement, certificate or other writing furnished or to be furnished
by BankFirst to Parent pursuant hereto, does not and will not contain any untrue
statement of a material fact or omit and will not omit to state a material fact
required to be stated herein or therein necessary to make the statements and
facts contained herein or therein, in light of the circumstances in which they
were or are made, not false or misleading. Copies of all documents heretofore or
hereafter delivered or made available to Parent or First National by BankFirst
pursuant hereto were or will be complete and accurate copies of such documents.
Section 7.9 Absence of Certain Changes of Events. Since December 31, 1996,
there has not been any material adverse change in the financial condition or in
the result of operations or the businesses, properties, assets, or liabilities
of BankFirst and its subsidiary, taken as a whole.
Section 7.10 Litigation. Except as disclosed in BankFirst's Financial
Statements, there is no suit, action or proceeding pending or, to the knowledge
of BankFirst, threatened against or affecting BankFirst or any of its
subsidiaries, which, if adversely determined, would materially and adversely
affect the financial condition, business or results of operations of BankFirst
and its subsidiaries, taken as a whole; nor is there any judgment, decree,
injunction, rule or order of any court, governmental department, commission,
agency, instrumentality, or arbitration outstanding against BankFirst or any of
its subsidiaries having, or which, insofar as can reasonably be foreseen, in the
future may have, any such effect.
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ARTICLE VIII
REPRESENTATIONS AND WARRANTIES OF FIRST NATIONAL
Both as of the date hereof and as of the Effective Time, First National
represents and warrants to Parent and BankFirst as follows:
Section 8.1 Organization and Qualification of First National. First
National is a federally-chartered national banking corporation duly organized,
validly existing and in good standing under the laws of the United States of
America and (i) has all requisite corporate power and authority to own, operate
and lease its material properties and to carry on its material business as it is
currently being conducted; (ii) is in good standing and is duly qualified to do
business in each jurisdiction where the character of its material properties
owned or held under lease or the nature of its material business makes such
qualification necessary (iii) has in effect all federal state and local
government authorizations, permits and licenses necessary for it to own or
leases its properties and assets and to carry on its business as it is currently
being conducted; and (iv) its deposit accounts are insured by the FDIC to the
fullest extent permitted under applicable law. First National is a member of the
Federal Reserve System. The corporate charter and bylaws of First National, as
amended to date, are in full force and effect.
Section 8.2 Authorization, Execution and Delivery; Agreement Not in
Breach.
(a) First National has all requisite power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby and thereby. The execution and delivery of this Agreement and the
consummation of the proposed transaction have been duly authorized by a majority
of the entire Board of Directors of First National and, except for the approval
of the sole Shareholder of First National, no other corporate proceedings on the
part of First National are necessary to authorize the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby and
thereby. This Agreement and all other agreements and instruments herein
contemplated to be executed by First National have been (or upon execution will
have been) duly executed and delivered by First National and constitute (or upon
execution will constitute) legal, valid and enforceable obligations of First
National, subject, as to enforceability, to applicable bankruptcy, insolvency,
receivership, conservatorship, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and to the application
of equitable principles and judicial discretion.
(b) The execution and delivery of this Agreement, the consummation
of the transaction contemplated hereby and thereby, and the fulfillment of the
terms hereof and thereof will not result in a violation or breach of any of the
material terms or provisions of, or constitute a default under (or an event
which, with the passage of time or the giving of notice, or both, would
constitute a default under), or conflict with, or permit the acceleration of,
any obligation under any mortgage,
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lease, covenant, agreement, indenture or other instrument to which First
National is a party or by which First National is bound; the Charter or Bylaws
of First National; or any judgment, decree, order, regulatory letter of
understanding or award of any court, governmental body, authority or arbitrator
by which First National is bound; or any material permit, concession, grant,
franchise, license, law, statute, ordinance, rule or regulation applicable to
First National or the properties of any of them; or result in the creation of
any material lien, claim, security interest, encumbrance, charge, restriction or
right of any third party of any kind whatsoever upon the properties or assets of
First National.
Section 8.3 No Legal Bar. First National is not a party to, or subject to,
or bound by, any agreement or judgment, order, letter of understanding, writ,
prohibition, injunction or decree of any court or other governmental authority
or body which would prevent the execution of this Agreement by First National,
the delivery thereof to Parent or the consummation of the transaction
contemplated hereby and thereby, and no action or proceeding is pending against
First National in which the validity of this Agreement, the transaction
contemplated hereby or any action which has been taken by any of the parties in
connection herewith or in connection with the transaction contemplated hereby is
at issue.
Section 8.4 Government and Other Approvals. Except for the Government
Approvals described in Section 6.4 and Section 7.4, no consent, approval, order
or authorization of, or registration, declaration or filing with, any federal,
state or local governmental authority is required to be made or obtained by
First National in connection with the execution and delivery of this Agreement
or the consummation of the transactions contemplated by this Agreement nor is
any consent or approval required from any landlord, licensor or other
non-governmental party which has granted rights to First National in order to
avoid forfeiture or impairment of such rights.
Section 8.5 First National Financial Statements. First National has
delivered true copies of its audited consolidated balance sheets as of December
31, 1995, 1994 and 1993, and the related consolidated statements of income and
stockholders' equity and cash flows of BankFirst for the years ended December
31, 1995, 1994 and 1993 (the "Audited Financial Statements of First National")
and the comparative interim (or annual) financial statements for any subsequent
quarter (or year) ending after December 31, 1995 and prior to the Effective
Date. Such financial statements (i) were (or will be) prepared from the books
and records of First National; (ii) were (or will be) prepared in accordance
with generally accepted accounting principles consistently applied; (iii)
accurately present (or will present) First National's consolidated financial
condition and the consolidated results of its operations as at the relevant
dates thereof and for the periods covered thereby; (iv) do contain or reflect
(or will contain and reflect) all necessary adjustments and accruals for an
accurate presentation of First National's consolidated financial condition and
the consolidated results of First National's operations for the periods covered
by such Financial Statements; and (v) do contain and reflect (or will contain
and reflect) adequate provisions for loan losses, for ORE reserves and for all
reasonably anticipated liabilities for all taxes, federal, state, or local, with
respect to the periods then ended.
13
Section 8.6 Records and Documents. The records of First National are and
will be sufficient to enable First National to continue conducting its business
as a nationally-chartered bank under similar standards as First National has
heretofore conducted such business.
Section 8.7 Capitalization of First National. The authorized capital of
First National consists of Two Hundred Thousand (200,000) shares of Common
Stock, par value Ten ($10.00) Dollars per share ("First National Common Stock").
As of the date of this Agreement, Ninety-Four Thousand Six Hundred Forty-Five
(94,645) shares of First National Common Stock are issued and outstanding and no
First National Common Stock is held by First National as Treasury Stock. All of
the First National Common Stock is validly issued, fully paid and
non-assessable, and has not been issued in violation of any preemptive rights of
any First National shareholder. All of the issued and outstanding shares of
First National are presently held by Parent, pursuant to an Agreement and Plan
of Reorganization which was approved by the Federal Reserve Board in November,
1989.
Section 8.8 Disclosure. The information concerning, and representations
and warranties made by, First National set forth in this Agreement, or in any
document, statement, certificate or other writing furnished or to be furnished
by First National pursuant hereto, does not and will not contain any untrue
statement of a material fact or omit and will not omit to state a material fact
required to be stated herein or therein necessary to make the statements and
facts contained herein or therein, in light of the circumstances in which they
were or are made, not false or misleading. Copies of all documents heretofore or
hereafter delivered or made available to Parent or First National by First
National pursuant hereto were or will be complete and accurate copies of such
documents.
Section 8.9 Absence of Certain Changes of Events. Since December 31, 1996,
there has not been any material adverse change in the financial condition or in
the result of operations or the businesses, properties, assets, or liabilities
of First National and its subsidiary, taken as a whole.
Section 8.10 Litigation. Except as disclosed in First National's Financial
Statements, there is no suit, action or proceeding pending or, to the knowledge
of First National, threatened against or affecting First National or any of its
subsidiaries, which, if adversely determined, would materially and adversely
affect the financial condition, business or results of operations of First
National and its subsidiaries, taken as a whole; nor is there any judgment,
decree, injunction, rule or order of any court, governmental department,
commission, agency, instrumentality, or arbitration outstanding against First
National or any of its subsidiaries having, or which, insofar as can reasonably
be foreseen, in the future may have, any such effect.
14
ARTICLE IX
CONDUCT OF BUSINESS PENDING THE MERGER
Section 9.1 Conduct of Business by BankFirst Pending the Merger. Prior to
the Effective Date, unless Parent shall otherwise agree or is otherwise
contemplated by this Agreement:
(i) The respective businesses of BankFirst and its subsidiaries shall be
conducted only in the ordinary course, and there shall be no
material changes in the conduct of BankFirst's operations;
(ii) BankFirst shall not (A) sell or pledge or agree to sell or pledge
any stock owned by it in any of its subsidiaries; (B) amend its
Amended and Restated Charter of Incorporation or Bylaws; or (C)
split, combine or reclassify its outstanding capital stock or
declare, set aside or pay any dividend payable in cash, stock or
property;
(iii) Neither BankFirst nor any of its subsidiaries shall (A) issue or
agree to issue any additional shares of, or rights of any kind to
acquire any shares of, its capital stock of any class; (B) acquire
or dispose of any fixed assets or acquire or dispose of any other
substantial assets other than in the ordinary course of business;
(C) incur a material amount of additional indebtedness, any other
material liabilities or enter into any other material transaction
other than in the ordinary course of business; (D) enter into any
contract, agreement, commitment or arrangement with respect to any
of the foregoing;
(iv) BankFirst shall use its best efforts to preserve intact the business
organization of BankFirst and its subsidiaries, to keep available
the services of it with its present officers and key employees, and
to preserve the good will of those having business relationships
with it and its subsidiaries;
(v) Neither BankFirst nor its subsidiaries will enter into any new
employment agreements with any of their respective officers or
employees or grant any increases in the compensation of their
respective officers and employees other than increases in the
ordinary course of business and consistent with past practice.
Section 9.2 Conduct of Business by First National Pending the Merger.
Prior to the Effective Date, unless Parent shall otherwise agree or is otherwise
contemplated by this Agreement:
(i) The respective businesses of First National and its subsidiaries
shall be conducted only in the ordinary course, and there shall be
no material changes in the conduct of First National's operations;
15
(ii) First National shall not (A) sell or pledge or agree to sell or
pledge any stock owned by it in any of its subsidiaries; (B) amend
its Amended and Restated Charter of Incorporation or Bylaws; or (C)
split, combine or reclassify its outstanding capital stock or
declare, set aside or pay any dividend payable in cash, stock or
property;
(iii) Neither First National nor any of its subsidiaries shall (A) issue
or agree to issue any additional shares of, or rights of any kind to
acquire any shares of, its capital stock of any class (B) acquire or
dispose of any fixed assets or acquire or dispose of any other
substantial assets other than in the ordinary course of business;
(C) incur a material amount of additional indebtedness, any other
material liabilities or enter into any other material transaction
other than in the ordinary course of business; (D) enter into any
contract, agreement, commitment or arrangement with respect to any
of the foregoing;
(iv) First National shall use its best efforts to preserve intact the
business organization of First National and its subsidiaries, to
keep available the services of it with its present officers and key
employees, and to preserve the good will of those having business
relationships with it and its subsidiaries;
(v) Neither First National nor its subsidiaries will enter into any new
employment agreements with any of their respective officers or
employees or grant any increases in the compensation of their
respective officers and employees other than increases in the
ordinary course of business and consistent with past practice.
ARTICLE X
CONDITIONS PRECEDENT
Section 10.1 Conditions to Each Parties' Obligation to Effect the Merger.
The respective obligations of each party to effect the Merger shall be subject
to the fulfillment at or prior to the Effective Date of the following
conditions:
(i) This Agreement and the transactions contemplated by this Agreement
shall have been approved and adopted by the requisite votes of the
Board of Directors of BankFirst, First National and Parent;
(ii) This Agreement and the transactions contemplated by this Agreement
shall have been approved and adopted by the requisite votes of the
holder of the outstanding voting securities of BankFirst and First
National; and
16
(iii) This Agreement and Plan of Merger shall have been approved by the
FDIC and the Commissioner of Financial Institutions for the State of
Tennessee.
Section 10.2 Conditions to Obligations of Parent to Effect the Merger. The
obligations of Parent to effect the Merger shall be subject to the fulfillment
at or prior to the Effective Date of the additional following conditions:
(i) BankFirst and First National shall have performed their agreements
contained in this Agreement required to be performed on or prior to
the Effective Date and the representations and warranties of
BankFirst and First National contained in this Agreement shall be
true in all material respects on and as of the Effective Date as if
made on and as of such date, except and contemplated by this
Agreement, and Parent shall have received a certificate of each
President or Chief Executive Officer of BankFirst and First National
to that effect.
(ii) Parent shall have received an opinion from the President of
BankFirst, dated the Effective Date, to the effect that:
(a) BankFirst is a corporation duly organized and validly existing
under the laws of the State of Tennessee;
(b) BankFirst is the corporate power to enter into this Agreement
and to consummate the actions contemplated hereby; and the
execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly
authorized by requisite corporate action taken on the part of
BankFirst;
(c) This Agreement has been executed and delivered by BankFirst
and (assuming the valid authorization, execution and delivery
of this Agreement by Parent and First National) is a valid and
binding obligation of BankFirst, except (A) as may be limited
by or subject to any bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights, and (B) that the remedy's
specific performance, injunction and other forms of equitable
relief are subject to certain tests of equity jurisdiction,
equitable defenses and the discretion of the court before
which any proceeding may be brought;
17
(d) Neither the execution, delivery, nor performance of this
Agreement by BankFirst, nor the consummation of the
transactions contemplated by the Agreement, will violate the
Amended and Restated Charter of Incorporation or Bylaws of
BankFirst and, to the actual knowledge of such officer, will
not constitute a violation of or a default under (except for
any such violation or default as to which requisite waivers or
consent either shall have been obtained by BankFirst by the
Effective Date or shall have been waived by the Parent in
writing) any material contract, agreement or instruments to
which BankFirst is subject and which has been specifically
identified to such officer by BankFirst in connection with
rendering such opinion.
(iii) Parent shall have received an opinion from the President and Chief
Executive Officer of First National
(a) First National is a corporation duly organized and validly
existing under the laws of the United States of America;
(b) First National has the corporate power to enter into this
Agreement and to consummate the actions contemplated hereby;
and the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been
duly authorized by requisite corporate action taken on the
part of First National;
(c) This Agreement has been executed and delivered by First
National and (assuming the valid authorization, execution and
delivery of this Agreement by Parent and BankFirst) is a valid
and binding obligation of First National, except (A) as may be
limited by or subject to any bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights, and (B)
that the remedy's specific performance, injunction and other
forms of equitable relief are subject to certain tests of
equity jurisdiction, equitable defenses and the discretion of
the court before which any proceeding may be brought.
(d) Neither the execution, delivery, nor performance of this
Agreement by First National, or the consummation of the
transactions contemplated by the Agreement, will violate the
Amended and Restated Charter of Incorporation or Bylaws of
First National, to the actual knowledge of such officer, will
not constitute a violation as to
18
which requisite waivers or consent either shall have been
obtained by BankFirst by the Effective Date or shall have been
waived by the Parent in writing) any material contract,
agreement or instruments to which First National is subject
and which has been specifically identified to such officer by
First National in connection with rendering such opinion.
Section 10.3 Conditions to Obligation of BankFirst to Effect the Merger.
The obligation of BankFirst to effect the merger shall be subject to the
fulfillment at or prior to the Effective Date of the following additional
conditions:
(i) Parent and First National shall have performed their agreements
contained in this Agreement required to be performed on or prior to
the Effective Date and the representations and warranties of Parent
and First National contained in this Agreement shall be true in all
material respects on and as of the Effective Date as if made on and
as of such date, except as contemplated or permitted by this
Agreement, and BankFirst shall have received a certificate of each
of the Presidents and/or Chief Executive Officer of Parent and First
National to that effect.
(ii) BankFirst shall have received a certificate from each of the
Presidents and/or Chief Executive Officers of Parent and First
National, dated the Effective Date, to the effect that:
(a) Each of Parent and First National is a corporation duly
organized and validly existing under the laws of the State of
Tennessee;
(b) Parent and First National each has the requisite power to
enter into this Agreement and to consummate the transactions
contemplated by this Agreement; and the execution and delivery
of this Agreement and the consummation of the transactions
contemplated by this Agreement have been duly authorized by
requisite corporate action taken on the part of Parent and
First National, respectively;
(c) This Agreement has been executed and delivered by Parent and
First National and (assuming the valid authorization,
execution and delivery of this Agreement by BankFirst) is a
valid and binding obligation of Parent and First National,
except (A) as may be limited or subject to any bankruptcy,
insolvency, reorganization, moratorium or other similar laws,
now or hereafter in effect relating to creditors' rights, and
(B)
19
that the remedies of specific performance, injunction and
other forms of equitable relief are subject to certain tests
of equity jurisdiction, equitable defenses and the discretion
of the court before which any proceeding may be brought;
(d) Neither the execution, delivery nor performance of this
Agreement by Parent and First National will violate the
Charter of Incorporation or Bylaws of Parent or First
National. And, to the actual knowledge of such officer, will
not constitute a violation of or a default under (except for
any such violation or default as to which requisite waivers or
consent shall either have been obtained by Parent and First
National by the Effective Date or shall have been waived by
BankFirst in writing). Any material contract, agreement or
instrument to which Parent or First National is subject and
which has been specifically identified to counsel by Parent or
First National in connection with the rendering of the
opinion;
Section 10.4 Conditions to Obligations of First National to Effect the
Merger. The obligations of First National to effect the Merger shall be subject
to the fulfillment at or prior to the Effective Date of the additional following
conditions:
(i) BankFirst and Parent shall have performed its agreements contained
in this Agreement required to be performed on or prior to the
Effective Date and the representations and warranties of BankFirst
and Parent contained in this Agreement shall be true in all
materials respects on and as of the Effective Date as if made on and
as of such date, except as contemplated by this Agreement, and First
National shall have received a Certificate of the President or Chief
Executive Officer of BankFirst and Parent to that effect.
(ii) First National shall have received an opinion from the President and
Chief Executive Officer of BankFirst and Parent, dated the Effective
Date, to the effect that:
(a) BankFirst and Parent are corporations duly organized and
validly existing under the laws of the State of Tennessee;
(b) BankFirst and Parent have the corporate power to enter into
this Agreement and to consummate the transactions contemplated
hereby; and the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have
been duly authorized by requisite corporate action taken on
the part of BankFirst and the Parent;
20
(c) This Agreement has been executed and delivered by BankFirst
and Parent and (assuming the valid authorization, execution
and delivery of this Agreement by First National) is a valid
and binding obligation of BankFirst and Parent, except (a) as
may be limited by or subject to any bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights; and (b) the
remedies of specific performance, injunction and other forms
of equitable relief are subject to certain tests of equity
jurisdiction, equitable defenses and the discretion of the
court before which any proceeding may be brought.
(d) Neither the execution, delivery, nor performance of this
Agreement by BankFirst or Parent, nor the consummation of the
transactions contemplated by the Agreement, will violate the
Amended and Restated Charter of Incorporation or Bylaws of
BankFirst and/or Parent and, to the actual knowledge of the
respective officer, will not constitute a violation of or a
default under (except for any such violation or default as to
which requisite waivers or consent shall have been obtained by
BankFirst or parent by the Effective Date or shall have been
waived by First National in writing). Any material contract,
agreement or instrument to which BankFirst or Parent is
subject and which has been specifically identified to such
representative by the Company in connection with the rendering
of such opinion.
Section 10.5 Materiality of Conditions. Notwithstanding anything contained
herein, no condition involving performance of agreements or the accuracy of
representations and warranties as of the Effective Date, or the furnishing of
officers' certificates or opinions shall be deemed not fulfilled, and the party
to whom such condition runs shall not be entitled to terminate this Agreement on
such basis, if the respects in which the agreements have not been performed, or
the representations and warranties are untrue, or the certificates, opinions or
certificates do not conform to what is prescribed by this Agreement, in the
aggregate, are not materially adverse to the financial condition, results of
operation, business or assets of the other parties, provided, however, that the
foregoing shall not constitute a waiver of any other rights a party may have in
such circumstances.
21
ARTICLE XI
TERMINATION, AMENDMENT AND WAIVER
Section 11.1 Termination. This Agreement may be terminated at any time
prior to the Effective Date whether before or after approval of the sole
Shareholder of BankFirst and First National:
(a) By mutual consent of the Board of Directors of Parent, BankFirst and
First National;
(b) By Parent, should BankFirst or First National fail to conduct its
business pursuant to the covenants made in Article IX;
(c) By either Parent or BankFirst, upon written notice to the other
party, upon denial of any Governmental Approval necessary for the
consummation of the Merger (or should such approval be conditioned
upon a substantial deviation from the transaction contemplated);
provided, however, that either party may, upon written notice to the
other, extend the term of this Agreement for one 60-day period to
prosecute diligently and overturn such denial, provided that such
denial has been appealed within ten (10) business days of the
receipt thereof;
(d) By Parent if the conditions set forth in Sections 10.1 or 10.2 are
not satisfied in all material respects as of the Effective Date, or
by BankFirst if the conditions set for in Section 10.1 or Section
10.3 are not satisfied in all material respects as of the Effective
Date, or by First National Bank if the conditions set forth in
Sections 10.1 and 10.4 are not satisfied in all material respects as
of the Effective Date, and any such failure has not been waived
prior to the Effective Date;
(e) By any party in the event that there shall have been a material
breach of any obligation of any other party hereunder, and such
breach shall have not been remedied within thirty (30) days after
receipt by the breaching party of written notice from the other
party(ies) specifying the nature of such breach and requesting that
it be remedied.
Section 11.2 Effect of Termination. In the event that this Agreement
should be terminated pursuant to Section 11.1 hereof, all further obligations of
the parties under this Agreement shall be terminated without further liability
of any party to another; provided, however, that a termination under Section
11.1 hereof shall not relieve any party of any liability for a breach of this
Agreement or for any misstatement or misrepresentation made hereunder prior to
such termination, or be deemed to constitute a waiver of any available remedy
for any such breach, misstatement or misrepresentation.
22
ARTICLE XII
GENERAL PROVISIONS
Section 12.1 Notices. Any notice, request, demand and other communication
which either party hereto may desire or may be required hereunder to give shall
be in writing and shall be deemed to be duly given if delivered personally or
mailed by certified or registered mail (postage prepaid, return receipt
requested), air courier or facsimile transmission, addressed or transmitted to
such other party as follows:
If to BankFirst:
Xxxx X. Xxxxxx, President and Chief Executive Officer
BankFirst
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
If to Parent:
Xxxx X. Xxxxxx, President and Chief Executive Officer
Smoky Mountain Bancorp, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
If to First National Bank of Gatlinburg:
Xxxxxxx Xxxx Xxxx, Xx., Chairman
First National Bank of Gatlinburg
000 Xxxxxxx
Xxxxxxxxxx, XX 00000
or to such other address as any party hereto may hereafter designate to the
other parties in writing. Notice shall be deemed to have been given on the date
reflected in the proof or evidence of delivery, or if none, on the date actually
received.
Section 12.2 Assignability and Parties in Interest. This Agreement shall
not be assignable by any of the Parties hereto.
Section 12.3 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Tennessee.
23
Section 12.4 Counterparts. This Agreement may be executed simultaneously
in one or more counterparts, each of which shall be deemed an original, but all
of which shall constitute but one and the same instrument.
Section 12.5 Best Efforts. First National, BankFirst and Parent each agree
to use its best efforts to complete the transactions contemplated by this
Agreement.
Section 12.6 Publicity. The parties agree that press releases and other
public announcements to be made by any of them with respect to the transactions
contemplated hereby shall be subject to mutual agreement.
Section 12.7 Entire Agreement. This Agreement, the Exhibits and
certificates required to be delivered hereunder and any amendments or addenda
hereafter executed and delivered in accordance with Article 10 hereof constitute
the entire agreement of the parties hereto pertaining to the transaction
contemplated hereby and supersede all prior written and oral (and all
contemporaneous oral) agreements and understandings of the parties hereto
concerning the subject matter hereof. The Exhibits and certificates attached
hereto or furnished pursuant to this Agreement are hereby incorporated as
integral parts of this Agreement. Except as provided herein, by specific
language and not by mere implication, this Agreement is not intended to confer
upon any other person not a party to this Agreement any rights or remedies
hereunder.
Section 12.8 Severability. If any portion or provision of this Agreement
should be determined by a court of competent jurisdiction to be invalid, illegal
or unenforceable in any jurisdiction, such portion or provision shall be
ineffective as to that jurisdiction to the extent of such invalidity, illegality
or unenforceability, without affecting in any way the validity or enforceability
of the remaining portions or provisions hereof in such jurisdiction or rendering
that or any other portions or provisions of this Agreement invalid, illegal or
unenforceable in any other jurisdiction.
Section 12.9 Modifications, Amendments and Waivers. At any time prior to
the Effective Date or termination of this Agreement, the parties may, solely by
written agreement executed by their duly authorized officers:
(a) Extend the time for the performance of any of the obligations or
other acts of the other party hereto;
(b) Waive any inaccuracies in the representations and warranties made by
the other party contained in this Agreement or in the schedules or
exhibits hereto or any other document delivered pursuant to this
Agreement;
(c) Waive compliance with any of the covenants or agreements of the
other party contained in this Agreement; and
24
(d) Amend or add to any provision of this Agreement; provided, however,
that no provision of this Agreement may be amended or added to
except by an agreement in writing signed by the parties hereto or
their respective successors in interest and expressly stating that
it is an amendment to this Agreement.
Section 12.10 Interpretation. 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.
Section 12.11 Payment of Expenses. Each party shall pay its own expenses
incurred by the parties in connection with the transactions contemplated
hereunder.
Section 12.12 Survival of Representations and Warranties. All
representations and warranties made by the parties hereto or in any instrument
or document furnished in connection herewith, shall survive the Effective Date
and any investigation at any time made by or on behalf of the parties hereto and
shall expire at the Effective Date of the exchange except as to any matter which
is based upon willful fraud with respect to which the representations and
warranties set forth in this Agreement shall expire only upon expiration of the
applicable statutes of limitation. Nothing in this Section 12.12 shall limit any
party's rights or remedies for misrepresentations, breaches of this Agreement or
any other improper action or inaction by the other party hereto prior to the its
termination.
Section 12.13 No Waiver. No failure, delay or omission of or by any party
in exercising any right, power or remedy upon any breach or default of any other
party shall impair any such rights, powers or remedies of the party not in
breach or default, nor shall it be construed to be a waiver of any such right,
power or remedy, or an acquiescence in any similar breach or default; nor shall
any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any party of any
provisions of this Agreement must be in writing and must be executed by the
parties to this Agreement and shall be effective only to the extent specifically
set forth in such writing.
25
IN WITNESS WHEREOF, each of the parties hereto has duly executed and
delivered this Agreement or has caused this Agreement to be executed and
delivered in its name and on its behalf by its representative thereunto duly
authorized, all as of the date first written above.
BANKFIRST
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Xxxx X. Xxxxxx
Its: President and Chief Executive Officer
ATTEST:
/s/ Xxxxxx X. Xxxxxx
-----------------------------
Secretary
SMOKY MOUNTAIN BANCORP, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Xxxx X. Xxxxxx
Its: President and Chief Executive Officer
ATTEST:
/s/ Xxxxxx Xxxx
-----------------------------
Secretary
FIRST NATIONAL BANK OF GATLINBURG
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------
Xxxxxx Xxxxxxxx
Its: President
ATTEST:
/s/ Xxxxxx Xxxx
-----------------------------
Secretary
26
EXHIBIT A
BankFirst BankFirst
000 Xxxxxx Xxxxxx 0000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000 Xxxxxxxxx, Xxxxxxxxx 00000
BankFirst BankFirst
000 Xxxxx Xxxxx Xxxxx Xxxx 0000-X Xxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000 Xxxxxxxxx, Xxxxxxxxx 00000
BankFirst BankFirst
00000 Xxxxxxxx Xxxx 0000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000 Xxxxxxxxx, Xxxxxxxxx 00000
BankFirst BankFirst
000 Xxxxx Xxxxxxxxx Xxxxx Xxxxx 000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000 Xxxxx, Xxxxxxxxx 00000
BankFirst BankFirst
000 Xxxxx Xxxxxx 00000 Xxxx Xxx Xxxxxxx
Xxxxxx, Xxxxxxxxx 00000 Xxxxxxxxxxxx, Xxxxxxxxx 00000
BankFirst BankFirst
000 Xxxxxxx Xxxxxx 000 Xxxxxxx 000/00Xxxxx
Xxxxxx, Xxxxxxxxx 00000 Xxxxxx Xxxx, Xxxxxxxxx 00000
EXHIBIT B
First National Bank of Gatlinburg First National Bank of Gatlinburg
811 Parkway 0000 Xxxxxxx 000
X.X. Xxx 000 Xxxxxxxxxx, Xxxxxxxxx 00000
Xxxxxxxxxx, Xxxxxxxxx 00000-0000
First National Bank of Gatlinburg First National Bank of Gatlinburg
0000 Xxxxx Xxxxx Xxxx 430 Forks of the Xxxxx Xxxxxxx
Xxxxxx Xxxxx, Xxxxxxxxx 00000 Xxxxxxxxxxx, Xxxxxxxxx 00000
First National Bank of Gatlinburg First National Bank of Gatlinburg
710 Xxxxx Xxxxxx Parkway 00000 Xxxxxxx Xxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000 Xxxxxxx, Xxxxxxxxx 00000
First National Bank of Gatlinburg First National Bank of Gatlinburg
000 Xxxxxxx 00 Xxxxx 000 Xxxx Xxxxxxxx Xxxxxxxxx
X.X. Xxx 000 Xxxxxxxxx Xxxx, Xxxxxxxxx 00000
Xxxxxxxxx, Xxxxxxxxx 00000-0000
EXHIBIT E
BankFirst BankFirst
000 Xxxxxx Xxxxxx 0000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000 Xxxxxxxxx, Xxxxxxxxx 00000
BankFirst BankFirst
000 Xxxxx Xxxxx Xxxxx Xxxx 0000-X Xxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000 Xxxxxxxxx, Xxxxxxxxx 00000
BankFirst BankFirst
00000 Xxxxxxxx Xxxx 0000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000 Xxxxxxxxx, Xxxxxxxxx 00000
BankFirst BankFirst
000 Xxxxx Xxxxxxxxx Xxxxx Xxxxx 000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000 Xxxxx, Xxxxxxxxx 00000
BankFirst BankFirst
000 Xxxxx Xxxxxx 00000 Xxxx Xxx Xxxxxxx
Xxxxxx, Xxxxxxxxx 00000 Xxxxxxxxxxxx, Xxxxxxxxx 00000
BankFirst BankFirst
000 Xxxxxxx Xxxxxx 000 Xxxxxxx 000/00Xxxxx
Xxxxxx, Xxxxxxxxx 00000 Xxxxxx Xxxx, Xxxxxxxxx 00000
BankFirst BankFirst
811 Parkway 0000 Xxxxxxx 000
X.X. Xxx 000 Xxxxxxxxxx, Xxxxxxxxx 00000
Xxxxxxxxxx, Xxxxxxxxx 00000-0000
BankFirst BankFirst
0000 Xxxxx Xxxxx Xxxx 430 Forks of the Xxxxx Xxxxxxx
Xxxxxx Xxxxx, Xxxxxxxxx 00000 Xxxxxxxxxxx, Xxxxxxxxx 00000
BankFirst BankFirst
710 Xxxxx Xxxxxx Parkway 00000 Xxxxxxx Xxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000 Xxxxxxx, Xxxxxxxxx 00000
BankFirst BankFirst
000 Xxxxxxx 00 Xxxxx 000 Xxxx Xxxxxxxx Boulevard
P.O. Box 723 Xxxxxxxxx Xxxx, Xxxxxxxxx 00000
Xxxxxxxxx, Xxxxxxxxx 00000-0000
EXHIBIT C
Xxxxxxx Xxxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxx Xxxxxxxx
Xxxxx Xxxx
Xxxx X. Xxxxx, M. D.
Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Xxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
X. Xxxxxx Xxxx
Xxxxxxx Xxxx Xxxx, Xx.
Xxxxxxx X. Xxx
Xxxxxx Xxxxxx
Xxx Xxxxxx
Xxx Xxxxxxx, Xx.
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxxxx, Xx.
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxx Xxxxxxx
Xxxxxx X. Xxxxx, Xx.
Some board members will want to retire after the boards are combined. That
decision has not been reached at this point.
EXHIBIT D
Xxxxx X. Xxxxxxx, Chairman
Xxxx X. Xxxxxx, President and Chief Executive Officer
C. Xxxxx Xxxxx, Chief Financial Officer
Xxxxxx X. Xxxxx, Regional President for Loudon County
Xxxxxx Xxxxxxxx, Regional President for Xxxxxx County
Xx Xxxxxx, Regional President for Jefferson County
W. Xxxxxx Xxxxxxxx, Regional President for Xxxxxx County
R. Xxxxxxx Xxxxxx, Executive Vice President
Xxx Xxxxxxx, Executive Vice President
Xxxxxxx X. Xxxxxxx, Senior Vice President
Xxxxx X. Xxxxx, Vice President
Xxx Xxxxxx, Vice President
Xxxx Xxxxx, Senior Vice President
Xxxxxxx X. Xxxxxx, Senior Vice President
Xxxxx Xxxxxx, Vice President
Xxxxxxx X. Xxxxxxxx, Vice President
Xxxxx X. Xxxxxxxxx, Vice President
Xxxxx Xxxx, Vice President
Xxxxx X. Xxxxxx, Senior Vice President
W. Xxxxx Xxxxxx, Vice President
Xxxxx X. Xxxxx, Vice President
Xxxx Xxxx, Vice President
E. Xxxxx Xxxx, Senior Vice President
Xxxxxx Xxxxxxx, Vice President
Xxxx X. Xxxxxx, Vice President
Xxxxxx XxXxxxx, Vice President
Xxxxx XxXxxxxx, Vice President
Xxxxx XxXxxx-Xxxx, Vice President
Xxxxxx X. XxXxxx, Vice President
G. Xxxxxx Xxxxxx, Controller
Xxxxxx X. Xxxx, Vice President
XxXxx Xxxxx, Vice President
C. Xxxx Xxx, Senior Vice President
Xxxxx Xxxx, Vice President
Xxxxxxx Xxxx, Vice President
Xxxxx Small, Vice President
Xxxxxx X. Xxxxxxxx, Senior Vice President
Xxxxxxx X. Xxxxxx, Vice President
Xxx X. Xxxxxxxx, Vice President
Xxxx Xxxxxx, Vice President
Xxxxxx X. Xxxxxx, Senior Vice President
Xxxxxx X. Xxxx, Vice President
Xxxxxx X. Xxxxx, Senior Vice President
