AGREEMENT AND PLAN OF REORGANIZATION by and among TRUSTMARK CORPORATION and REPUBLIC BANCSHARES OF TEXAS, INC. Dated as of April 13, 2006
Execution
Copy
AGREEMENT
AND PLAN OF REORGANIZATION
by
and among
TRUSTMARK
CORPORATION
and
REPUBLIC
BANCSHARES OF TEXAS, INC.
Dated
as of April 13, 2006
(STOCK/CASH
TRANSACTION)
TABLE
OF CONTENTS
|
Page
|
|||
| _______ | ______________ | ||
|
I.
|
THE
MERGERS
|
1
|
|
|
Section
1.1.
|
Mergers
|
1
|
|
|
Section
1.2.
|
Articles
of Incorporation, Bylaws and Facilities of Continuing
Corporation
|
2
|
|
|
Section
1.3.
|
Effect
of Merger
|
2
|
|
|
Section
1.4.
|
Liabilities
of Continuing Corporation
|
3
|
|
|
Section
1.5.
|
Merger
Consideration
|
3
|
|
|
Section
1.6.
|
Republic
Stock Options
|
3
|
|
|
Section
1.7.
|
Dissenting
Shares
|
3
|
|
|
Section
1.8.
|
Election
Procedures and Exchange of Shares
|
4
|
|
|
Section
1.9.
|
Limitation
on Elections
|
4
|
|
|
Section
1.10.
|
Form
of Election
|
5
|
|
|
Section
1.11.
|
Change
in Election; Revocation
|
5
|
|
|
Section
1.12.
|
Distribution
of Trustmark Common Stock and Cash
|
5
|
|
|
Section
1.13.
|
Fractional
Shares
|
6
|
|
|
Section
1.14.
|
Calculations
and Adjustments
|
6
|
|
|
Section
1.15.
|
Lost
or Destroyed Certificates
|
6
|
|
|
Section
1.16.
|
Ratification
by Shareholders
|
7
|
|
|
Section
1.17.
|
Tax
Consequences
|
7
|
|
|
II.
|
REPRESENTATIONS
AND WARRANTIES OF REPUBLIC
|
7
|
|
|
Section
2.1.
|
Organization
|
7
|
|
|
Section
2.2.
|
Capitalization
|
8
|
|
|
Section
2.3.
|
Approvals;
Authority
|
9
|
|
|
Section
2.4.
|
Investments
|
9
|
|
|
Section
2.5.
|
Financial
Statements
|
9
|
|
|
Section
2.6.
|
Loan
Portfolio
|
10
|
|
|
Section
2.7.
|
Certain
Loans and Related Matters
|
10
|
|
|
Section
2.8.
|
Real
Property Owned or Leased
|
10
|
|
|
Section
2.9.
|
Personal
Property
|
11
|
|
|
Section
2.10.
|
Environmental
Laws
|
12
|
|
-i-
TABLE
OF CONTENTS
(continued)
|
Page
|
|||
| _______ | ______________ | ||
|
Section
2.11.
|
Litigation
and Other Proceedings
|
12
|
|
|
Section
2.12.
|
Taxes
|
13
|
|
|
Section
2.13.
|
Contracts
and Commitments
|
13
|
|
|
Section
2.14.
|
Insurance
|
15
|
|
|
Section
2.15.
|
No
Conflict With Other Instruments
|
15
|
|
|
Section
2.16.
|
Compliance
with Laws and Regulatory Filings
|
15
|
|
|
Section
2.17.
|
Absence
of Certain Changes
|
15
|
|
|
Section
2.18.
|
Employment
Relations
|
16
|
|
|
Section
2.19.
|
Employee
Benefit Plans
|
17
|
|
|
Section
2.20.
|
Deferred
Compensation Arrangements
|
18
|
|
|
Section
2.21.
|
Brokers,
Finders and Financial Advisors
|
18
|
|
|
Section
2.22.
|
Trust
Preferred Securities
|
18
|
|
|
Section
2.23.
|
Derivative
Contracts
|
18
|
|
|
Section
2.24.
|
Deposits
|
18
|
|
|
Section
2.25.
|
Accounting
Controls
|
18
|
|
|
Section
2.26.
|
Community
Reinvestment Act
|
19
|
|
|
Section
2.27.
|
Intellectual
Property Rights
|
19
|
|
|
Section
2.28.
|
Bank
Secrecy Act; USA PATRIOT Act
|
19
|
|
|
Section
2.29.
|
Fairness
Opinion
|
19
|
|
|
Section
2.30.
|
Shareholders’
List
|
19
|
|
|
Section
2.31.
|
Vote
Required
|
20
|
|
|
Section
2.32.
|
Full
Disclosure
|
20
|
|
|
Section
2.33.
|
Disclosure
Documents
|
20
|
|
|
Section
2.34.
|
SEC
Deregistration
|
20
|
|
|
III.
|
REPRESENTATIONS
AND WARRANTIES OF TRUSTMARK
|
20
|
|
|
Section
3.1.
|
Organization
|
20
|
|
|
Section
3.2.
|
Capitalization
|
21
|
|
|
Section
3.3.
|
Approvals;
Authority
|
21
|
|
|
Section
3.4.
|
No
Conflict With Other Instruments
|
21
|
|
|
Section
3.5.
|
Financial
Statements
|
22
|
|
-ii-
TABLE
OF CONTENTS
(continued)
|
Page
|
|||
| _______ | ______________ | ||
|
Section
3.6.
|
Securities
and Exchange Commission Reporting Obligations
|
22
|
|
|
Section
3.7.
|
Trustmark
Employee Benefit Plans
|
22
|
|
|
Section
3.8.
|
Regulatory
Approvals
|
23
|
|
|
Section
3.9.
|
Taxes
|
23
|
|
|
Section
3.10.
|
Insurance
|
23
|
|
|
Section
3.11.
|
Laws
and Regulatory Filings
|
23
|
|
|
Section
3.12.
|
Community
Reinvestment Act
|
24
|
|
|
Section
3.13.
|
Litigation
and Other Proceedings
|
24
|
|
|
Section
3.14.
|
Brokers
and Finders
|
24
|
|
|
Section
3.15.
|
Xxxxxxxx-Xxxxx
Act Compliance
|
24
|
|
|
Section
3.16.
|
Absence
of Certain Changes
|
00
|
|
|
XX.
|
XXXXXXXXX
XX XXXXXXXX
|
25
|
|
|
Section
4.1.
|
Shareholder
Approval and Best Efforts
|
25
|
|
|
Section
4.2.
|
Activities
of Republic Pending Closing
|
25
|
|
|
Section
4.3.
|
Access
to Properties and Records
|
27
|
|
|
Section
4.4.
|
Information
for Regulatory Applications and SEC Filings
|
27
|
|
|
Section
4.5.
|
Standstill
Provision
|
28
|
|
|
Section
4.6.
|
Affiliate
Agreement
|
28
|
|
|
Section
4.7.
|
Trust
Preferred Issue
|
28
|
|
|
Section
4.8.
|
Merger
of Republic-Delaware into Republic
|
28
|
|
|
Section
4.9.
|
Bank
Merger
|
28
|
|
|
Section
4.10.
|
Amendments
to Employment Agreements
|
29
|
|
|
Section
4.11.
|
Employee
Benefit Plans
|
29
|
|
|
Section
4.12.
|
Change
in Control Payments
|
29
|
|
|
V.
|
COVENANTS
OF TRUSTMARK
|
29
|
|
|
Section
5.1.
|
Regulatory
Filings and Best Efforts
|
29
|
|
|
Section
5.2.
|
Registration
Statement
|
29
|
|
|
Section
5.3.
|
Employee
Benefit Plans
|
30
|
|
|
Section
5.4.
|
Regulatory
Approvals
|
30
|
|
|
Section
5.5.
|
NASDAQ
Listing
|
30
|
|
-iii-
TABLE
OF CONTENTS
(continued)
|
Page
|
|||
| _______ | ______________ | ||
|
Section
5.6.
|
Rule
144 Compliance
|
31
|
|
|
Section
5.7.
|
Indemnification;
Insurance
|
31
|
|
|
Section
5.8.
|
Supplemental
Indenture
|
32
|
|
|
Section
5.9
|
Trustmark
National Bank Director
|
32
|
|
|
VI.
|
MUTUAL
COVENANTS OF TRUSTMARK AND REPUBLIC
|
32
|
|
|
Section
6.1.
|
Notification;
Updated Disclosure Schedules
|
32
|
|
|
Section
6.2.
|
Confidentiality
|
32
|
|
|
Section
6.3.
|
Publicity
|
32
|
|
|
VII.
|
CLOSING
|
33
|
|
|
Section
7.1.
|
Closing
|
33
|
|
|
Section
7.2.
|
Effective
Time
|
33
|
|
|
VIII.
|
TERMINATION
|
33
|
|
|
Section
8.1.
|
Termination
|
33
|
|
|
Section
8.2.
|
Effect
of Termination
|
36
|
|
|
Section
8.3.
|
Termination
Fee
|
36
|
|
|
IX.
|
CONDITIONS
TO OBLIGATIONS OF TRUSTMARK
|
37
|
|
|
Section
9.1.
|
Compliance
with Representations and Covenants
|
37
|
|
|
Section
9.2.
|
Absence
of Material Adverse Effect
|
38
|
|
|
Section
9.3.
|
Legal
Opinion
|
38
|
|
|
Section
9.4.
|
X.
X. Xxxxx Employment Agreement
|
38
|
|
|
Section
9.5.
|
Tax
Opinion
|
38
|
|
|
X.
|
CONDITIONS
TO OBLIGATIONS OF REPUBLIC
|
38
|
|
|
Section
10.1.
|
Compliance
with Representations and Covenants
|
38
|
|
|
Section
10.2.
|
Absence
of Material Adverse Effect
|
38
|
|
|
Section
10.3.
|
Legal
Opinion
|
39
|
|
|
Section
10.4.
|
Opinion
of Financial Advisor
|
39
|
|
|
Section
10.5.
|
Tax
Opinion
|
39
|
|
|
XI.
|
CONDITIONS
TO RESPECTIVE OBLIGATIONS OF TRUSTMARK, AND REPUBLIC
|
39
|
|
|
Section
11.1.
|
Government
Approvals
|
39
|
|
-iv-
TABLE
OF CONTENTS
(continued)
|
Page
|
||||
| _______ | ______________ | |||
|
Section
11.2.
|
Shareholder
Approval
|
39
|
||
|
Section
11.3.
|
Registration
of Trustmark Common Stock
|
40
|
||
|
Section
11.4.
|
Listing
of Trustmark Common Stock
|
40
|
||
|
XII.
|
MISCELLANEOUS
|
40
|
||
|
Section
12.1.
|
Definitions
|
40
|
||
|
Section
12.2.
|
Non-Survival
of Representations and Warranties
|
40
|
||
|
Section
12.3.
|
Amendments
|
40
|
||
|
Section
12.4.
|
Expenses
|
41
|
||
|
Section
12.5.
|
Notices
|
41
|
||
|
Section
12.6.
|
Controlling
Law
|
42
|
||
|
Section
12.7.
|
Headings
|
42
|
||
|
Section
12.8.
|
Modifications
or Waiver
|
42
|
||
|
Section
12.9.
|
Severability
|
42
|
||
|
Section
12.10.
|
Assignment
|
42
|
||
|
Section
12.11.
|
Consolidation
of Agreements
|
42
|
||
|
Section
12.12.
|
Counterparts
|
42
|
||
|
Section
12.13.
|
Binding
on Successors
|
43
|
||
|
Section
12.14.
|
Gender
|
43
|
||
|
Section
12.15.
|
Disclosures
|
43
|
||
| Exhibit A | Company Merger Agreement | |||
| Exhibit B | Bank Merger Agreement | |||
| Exhibit C | Affiliate Agreement | |||
| Exhibit D | Bryan Amendment to Employment Agreement | |||
| Exhibit E | XxXxxxxxx Amendment to Employment Agreement | |||
| Exhibit F | Xxxxx Employment Agreement | |||
| Exhibit G | Trustmark Peer Group | |||
-v-
This
Agreement and Plan of Reorganization (“Agreement”) dated as of April 13, 2006 is
by and among Trustmark Corporation, a Mississippi corporation (“Trustmark”) and
Republic Bancshares of Texas, Inc., Houston, Texas, a Texas corporation
(“Republic”).
WHEREAS,
Republic desires to affiliate with Trustmark and Trustmark desires to affiliate
with Republic in the manner provided in this Agreement; and
WHEREAS,
the Boards of Directors of Trustmark and Republic believe that the acquisition
of Republic by Trustmark in the manner provided by, and subject to the terms
and
conditions set forth in, this Agreement and all exhibits, schedules and
supplements hereto is desirable and in the best interests of their respective
shareholders; and
WHEREAS,
the respective Boards of Directors of Trustmark and Republic have approved
this
Agreement and the transactions proposed herein substantially on the terms and
conditions set forth in this Agreement;
NOW,
THEREFORE, in consideration of such premises and the mutual representations,
warranties, covenants and agreements contained herein, the parties agree as
set
forth below.
INTRODUCTION
A. This
Agreement provides for the merger of Republic with and into Trustmark with
Trustmark as the survivor (the “Merger”), all pursuant to the terms and
conditions set forth in this Agreement. In connection with the Merger, Trustmark
will acquire all of the issued and outstanding shares of (i) common stock,
$1.00
par value, of Republic (“Republic Common Stock”) and (ii) Series A Preferred
Stock, $1.00 par value, of Republic (“Republic Series A Stock”) (collectively,
the Republic Common Stock and the Republic Series A Stock are sometimes referred
to herein as the “Republic Stock”) for an aggregate consideration as set forth
in this Agreement.
B.
This
Agreement also provides for the merger of Republic’s wholly-owned Delaware
Subsidiary, XXX Holdings, Inc. (“Republic-Delaware”), with and into Republic
prior to consummation of the Merger.
C.
It
is
contemplated that immediately following consummation of the Merger, Republic
National Bank (“Republic Bank”), a national banking association and wholly owned
Subsidiary of Republic, will be merged (the “Bank Merger”) with and into
Trustmark National Bank, a wholly-owned Subsidiary of Trustmark, with Trustmark
National Bank as the surviving entity.
I. THE
MERGERS
Section
1.1. Mergers. Upon
the terms and subject to the conditions set forth in this Agreement and the
Company Merger Agreement in the form attached hereto as Exhibit A, at the
Effective Time (as defined in Section 7.2 of this Agreement), Republic shall
be
merged with and into Trustmark (which, as the surviving corporation, is
hereinafter referred to as “Continuing Corporation” whenever reference is made
to it at or after the Effective Time) under the Articles of Incorporation of
Trustmark and pursuant to the provisions of, and with the effect provided in
Sections 79-4-11.01 et seq. of the Mississippi Code of 1972, as
amended.
Immediately
following the Merger and pursuant to this Agreement and the Bank Merger
Agreement in the form attached hereto as Exhibit B, Republic Bank shall be
merged with and into Trustmark National Bank under the Articles of Association
of Trustmark National Bank. As a result of and as part of the Bank Merger,
on
the Effective Date (as defined in Exhibit B) of the Bank Merger each of the
issued and outstanding shares of Republic Bank common stock shall be cancelled
and retired and shall cease to exist. As a consequence of the Bank Merger,
all
assets of Republic Bank, as they exist on the Effective Date, shall pass to
and
vest in Trustmark National Bank without any conveyance or transfer, and
Trustmark National Bank shall be responsible for all liabilities of every kind
and description of Republic Bank as of the Effective Date.
Section
1.2. Articles
of Incorporation, Bylaws and Facilities of Continuing
Corporation. At
the Effective Time and until thereafter amended in accordance with applicable
law, the Articles of Incorporation of Continuing Corporation shall be the
Articles of Incorporation of Trustmark as in effect at the Effective Time.
Until
altered, amended or repealed as therein provided and in the Articles of
Incorporation of Continuing Corporation, the Bylaws of Continuing Corporation
shall be the Bylaws of Trustmark as in effect at the Effective Time. Unless
and
until changed by the Board of Directors of Continuing Corporation, the main
office of Continuing Corporation shall be the main office of Trustmark as of
the
Effective Time. The established offices and facilities of Republic immediately
prior to the Merger shall become established offices and facilities of
Continuing Corporation. The Board of Directors of the Continuing Corporation
shall be the Board of Directors of Trustmark at the Effective Time, each of
whom
shall serve until duly elected and qualified. The executive officers of the
Continuing Corporation shall be the executive officers of Trustmark at the
Effective Time. Until thereafter changed in accordance with law or the Articles
of Incorporation or Bylaws of Continuing Corporation, all corporate acts, plans,
policies, contracts, approvals and authorizations of Republic and Trustmark
and
their respective shareholders, Boards of Directors, committees elected or
appointed thereby, officers and agents, which were valid and effective
immediately prior to the Effective Time, shall be taken for all purposes as
the
acts, plans, policies, contracts, approvals and authorizations of Continuing
Corporation and shall be as effective and binding thereon as the same were
with
respect to Republic and Trustmark, respectively, as of the Effective
Time.
Section
1.3. Effect
of Merger. At
the Effective Time, the corporate existence of Republic and Trustmark shall,
as
provided in the provisions of law heretofore mentioned, be consolidated and
continued in Continuing Corporation, and Continuing Corporation shall be deemed
to be a continuation in entity and identity of Republic and Trustmark. All
rights, franchises and interests of Republic and Trustmark, respectively, in
and
to any type of property and choses in action shall be transferred to and vested
in Continuing Corporation by virtue of the Merger without any deed or other
transfer. Continuing Corporation, without any order or other action on the
part
of any court or otherwise, shall hold and enjoy all rights of property,
franchises and interest, including appointments, designations and nominations,
and all other rights and interests as trustee, executor, administrator, transfer
agent or registrar of stocks and bonds, guardian of estates, assignee, receiver
and committee of estates and lunatics, and in every other fiduciary capacity,
in
the same manner and to the same extent as such rights, franchises, and interests
were held or enjoyed by Republic and Trustmark, respectively, as of the
Effective Time. At the Effective Time, the directors and officers of Trustmark
shall become the directors and officers of Continuing Corporation.
-2-
Section
1.4. Liabilities
of Continuing Corporation. At
the Effective Time of the Merger, Continuing Corporation shall be liable for
all
liabilities of Republic and Trustmark. All deposits, debts, liabilities,
obligations and contracts of Republic and of Trustmark, respectively, matured
or
unmatured, whether accrued, absolute, contingent or otherwise, and whether
or
not reflected or reserved against on balance sheets, books of account, or
records of Republic or Trustmark, as the case may be, shall be those of
Continuing Corporation and shall not be released or impaired by the Merger.
All
rights of creditors and other obligees and all liens on property of either
Republic or Trustmark shall be preserved unimpaired subsequent to the
Merger.
Section
1.5. Merger
Consideration. As
a result of and as part of the Merger and subject to the adjustments and
limitations provided for in Sections 1.8 through 1.15 of this Agreement, shares
of Republic Stock issued and outstanding immediately prior to the Effective
Time, other than Dissenting Shares (as defined in Section 1.7 of this
Agreement), shall, by virtue of the Merger and without any action on the part
of
the holder thereof, be converted into and represent the right to receive cash
or
shares of common stock, no par value, of Trustmark (“Trustmark Common Stock”) or
combination of both (the “Merger Consideration”), on the basis described
herein.
Section
1.6. Republic
Stock Options. Republic
shall take all actions necessary to accelerate vesting of all the outstanding
Republic Stock options outstanding on the date of this Agreement (which options
are listed in Schedule
2.2);
provided, however, no Republic Stock options that were not vested as of February
28, 2006, may become vested until ten (10) days prior to the Effective Time.
Holders of vested stock options who exercise them at least three (3) days prior
to the Effective Time shall be entitled to payment of the Merger Consideration
in accordance with this Article I. Trustmark shall not assume, or provide any
Merger Consideration for, a stock option that remains unexercised within three
(3) days of the Effective Time, or for any Republic Stock acquired by exercising
a stock option after three (3) days prior to the Effective Time.
Section
1.7. Dissenting
Shares. Each
share of Republic Stock issued and outstanding immediately prior to the
Effective Time, the holder of which has not voted in favor of the Merger and
who
has delivered a written demand for payment of the fair value of such shares
within the time and in the manner provided in Article 5.12 of the Texas Business
Corporation Act (“TBCA”), is referred to herein as a “Dissenting Share.”
Dissenting Shares shall not be converted into or represent the right to receive
the Merger Consideration pursuant to Section 1.5 of this Agreement and shall
be
entitled only to such rights as are available to such holder pursuant to the
applicable provisions of the TBCA unless and until such holder shall have failed
to perfect or shall have effectively withdrawn or lost his right to appraisal
and payment under Article 5.12 of the TBCA. If any such holder shall have so
failed to perfect or shall have effectively withdrawn or lost such right, such
holder’s Dissenting Shares shall thereupon be deemed to have been converted into
and to have become exchangeable for, at the Effective Time, the right to receive
the Merger Consideration without any interest thereon.
-3-
Section
1.8. Election
Procedures and Exchange of Shares. At
least thirty (30) days prior to the date of the Republic shareholders meeting
to
approve the Merger (the “Meeting Date”), Republic shall deliver to Trustmark a
list of Republic’s shareholders which shall include each shareholder’s name,
address and the number of shares of Republic Stock owned. Subject to the
provisions of Sections 1.5, 1.6, and 1.9 through 1.15 hereof, each holder of
shares of Republic Stock as of the date thirty (30) days prior to the Meeting
Date (the “Record Date”) and the option holders listed in Schedule
2.2
shall be
given the opportunity to elect, in accordance with the procedures set forth
in
Section 1.10 hereof (the “Election”), to convert their shares of Republic Stock
into either:
(a)
cash
in
an amount equal to $44.00 per share for all of the shares of Republic Stock
owned by such holder of record as of the Record Date (the “Available Cash
Election”); or
(b) shares
of
Trustmark Common Stock in an amount equal to the Exchange Ratio times the number
of shares of Republic Stock owned by such holder of record as of the Record
Date
(the “Share Election”). The Exchange Ratio shall be equal to 1.3968; or
(c) a
combination of cash and Trustmark Common Stock for all of the shares of Republic
Stock owned by such holder of record as of the Record Date (the “Combination
Election”) in the proportions and with respect to the shares of Republic Stock
specified by such holder. In the event a Republic shareholder makes a
Combination Election, the amount of cash to be received for each share of
Republic Stock converted into cash shall be computed in accordance with Section
1.8(a) and the amount of Trustmark Common Stock to be received for shares of
Republic Stock converted in Trustmark Common Stock shall be computed in
accordance with Section 1.8(b).
The
elections made by the option holders shall only be binding on those option
holders (i) if the Merger is approved by the Republic shareholders and (ii)
the
option holder exercises the option for the shares of Republic Stock at least
three (3) days prior to the Effective Time as provided in Section
1.6.
Section
1.9. Limitation
on Elections. If,
based on the Elections, the total cash payable to holders of Republic Stock
(including cash payable in lieu of fractional shares and cash payable to
dissenters to the Merger) would be greater than forty-nine percent (49%) of
the
total value of the Merger Consideration, or the total Trustmark Common Stock
issued to holders of Republic Stock would be greater than fifty-one percent
(51%) of the total value of the Merger Consideration, Trustmark shall have
the
right to proportionally adjust the cash and Trustmark Common Stock to be issued
to holders of Republic Stock so that the total cash payable to holders of
Republic Stock (including cash payable in lieu of fractional shares and cash
payable to dissenters to the Merger) shall be equal to forty-nine percent (49%)
of the Merger Consideration and the total Trustmark Common Stock to be issued
shall be equal to fifty-one percent (51%) of the Merger Consideration or
3,400,000 shares. For purposes of the calculation contained herein, all
dissenting shareholders shall be deemed to have received cash in an amount
equal
to the amount of the Available Cash Election for such shares.
-4-
Section
1.10. Form
of Election. Forms
for making the Election (the “Forms
of
Election”),
shall
be mailed to the option holders and holders of Republic Stock as of the Record
Date as part of the proxy statement (the “Proxy
Statement”)
for the
special shareholders'
meeting
of Republic called to consider the Merger. The Forms of Election must be
properly completed and returned to Republic on or before the Meeting Date in
accordance with the instructions applicable thereto. Any option holder or holder
of shares of Republic Stock who does not return a properly executed Form of
Election on or before the Meeting Date shall be deemed to have made a Share
Election. If the Merger is approved, Republic shall furnish Trustmark with
the
original Forms of Election as soon as is practicable following the
shareholders'
meeting
of Republic.
Section
1.11. Change
in Election; Revocation. Any
option holder or holder of Republic Stock may, at any time, change an Election
by submitting a revised, subsequently dated Form of Election on or before the
Meeting Date.
Section
1.12. Distribution
of Trustmark Common Stock and Cash.
(a) Promptly
following the Effective Time of the Merger, Trustmark shall send to holders
of
Republic Stock of record as of the Closing Date transmittal materials for use
in
exchanging their shares of Republic Stock for the Merger Consideration.
Trustmark shall thereafter promptly pay the Merger Consideration to holders
of
Republic Stock who have properly submitted transmittal materials and surrendered
their share certificates to Trustmark. Unless and until the share certificates
are properly surrendered, a former holder of Republic Stock shall not be
entitled to receive the cash and/or share certificates to which such holder
is
entitled or any dividends payable with respect to such shares. Upon the proper
surrender of such Republic Stock, the former Republic shareholder shall be
issued the Trustmark shares and/or shall be paid the cash and dividends (without
interest) to which such shareholder is entitled.
(b) Former
shareholders of Republic who have made a Share Election or Combination Election
shall be entitled to vote after the Effective Time at any meeting of Trustmark’s
shareholders the number of shares of Trustmark Common Stock into which their
shares are converted, after such shareholders of Republic have surrendered
their
certificates in exchange therefor.
(c) After
the
Effective Time, the stock transfer ledger of Republic shall be closed and there
shall be no transfers on the stock transfer books of Republic of the shares
of
Republic Stock which were outstanding immediately prior to such time. If, after
the Effective Time, certificates are presented to Trustmark, they shall be
promptly exchanged as provided in this Section 1.12.
(d) If
any
certificate representing shares of Trustmark Common Stock is to be issued in
a
name other than that in which the certificate surrendered in exchange therefor
is registered, it shall be a condition of the issuance thereof that the
certificate so surrendered shall be appropriately endorsed (or accompanied
by an
appropriate instrument of transfer) and otherwise in proper form (reasonably
satisfactory to Trustmark) for transfer, and that the person requesting such
exchange shall pay to Trustmark in advance any transfer or other Taxes required
by reason of the issuance of a certificate representing shares of Trustmark
Common Stock in any name other than that of the registered holder of the
certificate surrendered, or required for any other reason, or shall establish
to
the satisfaction of Trustmark that such tax has been paid or not
payable.
-5-
(e) Neither
Trustmark, Republic, or any other person shall be liable to any former holder
of
shares of Republic Stock for any Trustmark Common Stock (or dividends or
distributions with respect thereto) or cash properly delivered to a public
official pursuant to applicable abandoned property, escheat or similar
laws.
Section
1.13. Fractional
Shares. No
fractional shares of Trustmark Common Stock shall be issued upon the surrender
for exchange of certificates representing shares of Republic Stock. In lieu
of
any such fractional share, each holder of shares of Republic Stock who would
otherwise be entitled to a fractional share of Trustmark Common Stock will
be
paid cash upon the proper surrender of all the stock certificates representing
shares of Republic Stock held by such holder in the amount equal to the product
of such fraction multiplied by $31.50.
Section
1.14. Calculations
and Adjustments.
(a) If,
between the date of this Agreement and the Effective Time, shares of Trustmark
Common Stock shall be changed into a different number of shares or shares of
a
different class by reason of any reclassification, recapitalization, stock
split, or stock dividend with a record date within said period, the number
of
shares of Trustmark Common Stock to be issued and delivered upon the
consummation of the Merger as provided in this Agreement shall be appropriately
and proportionately adjusted so that the number of such shares that will be
issued and delivered as a result of the Merger will equal the number of shares
of Trustmark Common Stock that holders of shares of Republic Stock would have
received had the record date for such reclassification, recapitalization, stock
split, or stock dividend been immediately following the Effective
Time.
(b) If,
between the date of this Agreement and the Effective Time, the number of shares
of Republic Stock issued shall be increased due to the purchase of shares by
Republic’s employee stock purchase plan, the Exchange Ratio, the Available Cash
Election share price, the Merger Consideration to be delivered pursuant to
this
Agreement, and any other relevant provision of this Agreement shall be adjusted
to reflect all of the issued and outstanding shares of Republic Stock at the
Effective Time.
Section
1.15. Lost
or Destroyed Certificates. Any
person whose certificates representing shares of Republic Stock shall have
been
lost or destroyed may nevertheless obtain the shares of Trustmark Common Stock
and/or cash to which such holder of Republic Stock is entitled as a result
of
the Merger if such holder provides Trustmark with a statement certifying such
loss or destruction and an indemnity satisfactory to Trustmark sufficient to
indemnify Trustmark against any loss or expense that may occur as a result
of
such lost or destroyed certificate being thereafter presented to Trustmark
for
exchange.
-6-
Section
1.16. Ratification
by Shareholders. This
Agreement shall be submitted to the shareholders of Republic in accordance
with
applicable provisions of law and the respective Articles of Incorporation and
Bylaws of Republic. Republic and Trustmark shall proceed expeditiously and
cooperate fully in the procurement of any other consents and approvals and
the
taking of any other actions in satisfaction of all other requirements prescribed
by law or otherwise necessary for consummation of the Merger on the terms herein
provided, including, without limitation, the preparation and submission of
all
necessary filings, requests for waivers and certificates with the Board of
Governors of the Federal Reserve System (“Federal Reserve Board”) and the Office
of the Comptroller of the Currency (“OCC”).
Section
1.17. Tax
Consequences. It
is intended by the parties hereto that the Merger shall constitute a
reorganization within the meaning of Section 368(a) of the Code, and the parties
hereby adopt this Agreement as a “plan of reorganization” within the meaning of
Sections 1.368-2(g) and 1.368-3(a) of the Treasury Regulations promulgated
thereunder.
II. REPRESENTATIONS
AND WARRANTIES OF REPUBLIC
Republic,
for itself and on behalf of its Subsidiaries, Republic-Delaware and Republic
Bank, makes the following representations and warranties, each of which is
being
relied on by Trustmark, which representations and warranties shall, individually
and in the aggregate, be true and correct in all respects on the date of this
Agreement and on the Closing Date (except that all representations and
warranties made as of a specific date shall be true and correct as of such
date). For the purposes of this Agreement, except in Section 2.1 and where
the
context otherwise requires, any reference to Republic in this Article II shall
be deemed to include Republic and its Subsidiaries, and any reference to
material, materiality, or Material Adverse Effect, or a similar standard shall
refer to the financial condition, operations, or other aspects of Republic
taken
as a whole and its Subsidiaries individually.
Prior
to
the date of this Agreement, Republic has delivered to Trustmark a number of
Schedules setting forth, among other things, items the disclosure of which
is
necessary or appropriate either in response to an express disclosure requirement
contained in a provision hereof, or as an exception to one or more
representations or warranties or covenants contained herein; provided, that
the
mere inclusion of an item in a Schedule as an exception to a representation
or
warranty or covenant shall not be deemed an admission by either party that
such
item was required to be disclosed therein. Republic agrees that, two (2) days
prior to Closing, it shall provide Trustmark with supplemental Schedules
reflecting any changes in the information which has occurred in the period
from
the date of delivery of such Schedules to the date two (2) days prior to
Closing.
2.1 Organization.
(a) Republic
is a Texas corporation duly organized, validly existing and in good standing
under the laws of the State of Texas. Republic-Delaware is a Delaware
corporation duly organized, validly existing and in good standing under the
laws
of Delaware. Republic Bank is a national banking association duly organized,
validly existing and in good standing under the laws of the United States of
America. Each of Republic, Republic-Delaware and Republic Bank has full power
and authority (including all licenses, franchises, permits and other
governmental authorizations which are legally required) to own, lease and
operate its properties, to engage in the business and activities now conducted
by it, except where the failure to be so licensed or qualified would not have
a
Material Adverse Effect (as defined in Section 12.1(b) of this Agreement) on
the
business, assets, operations, financial condition or results of operations
(such
business, assets, operations, financial condition or results of operations
hereinafter collectively referred to as the “Condition”) of Republic.
-7-
(b) Republic
and Republic-Delaware are registered bank holding companies under the Bank
Holding Company Act of 1956, as amended (“BHC Act”). Republic Bank is duly
authorized to conduct a general banking business, embracing all usual deposit
functions of commercial banks as well as commercial, industrial and real estate
loans, installment credits, collections and safe deposit facilities subject
to
the supervision of the OCC and the Federal Deposit Insurance Corporation
(“FDIC”). True and complete copies of the Articles of Incorporation and Bylaws
of Republic and Republic-Delaware and the Articles of Association and Bylaws
of
Republic Bank, each as amended to date, have been delivered or made available
to
Trustmark.
(c) Other
than as set forth in Schedule
2.1(c),
Republic (i) does not have any Subsidiaries or Affiliates, (ii) is not a general
partner or material owner in any joint venture, general partnership, limited
partnership, trust or other non-corporate entity, and (iii) does not know of
any
arrangement pursuant to which the stock of any corporation is or has been held
in trust (whether express, constructive, resulting or otherwise) for the benefit
of all shareholders of Republic.
(d) The
deposit accounts of Republic Bank are insured by the FDIC through the Bank
Insurance Fund to the fullest extent permitted by law, and all premiums and
assessments due and owning as of the date hereof required in connection
therewith have been paid by Republic Bank.
Section
2.2. Capitalization. The
authorized capital stock of Republic consists of 20,000,000 shares of Republic
Common Stock, of which 3,657,381 are issued and outstanding, and 500,000 shares
of Republic Series A Stock, $1.00 par value, of which 346,133 are issued and
outstanding. The authorized capital stock of Republic-Delaware consists of
3,000
shares of Republic-Delaware common stock, $.01 par value, 1,000 shares of which
are issued and outstanding and owned by Republic. The authorized capital stock
of Republic Bank consists of 5,000,000 shares of Republic Bank common stock,
$1.00 par value, 1,922,000 of which are issued and outstanding and owned by
Republic-Delaware. All of the issued and outstanding shares of Republic Stock
are validly issued, fully paid and nonassessable, and have not been issued
in
violation of the preemptive rights of any person or in violation of any
applicable federal or state laws. Schedule
2.2
sets
forth for each Republic Stock option, the name of the grantee, the date of
the
grant, the type of grant, the status of the option grant as qualified or
non-qualified under Section 422 of the Code, the number of shares of Republic
Common Stock subject to each option, and the number of shares of Republic Common
Stock that are currently exercisable and the exercise price per share. Upon
exercise the outstanding Republic Stock options as of the date of this Agreement
shall represent 769,100 shares of Republic Common Stock. Other than as set
forth
in Schedule
2.2,
there
are no existing options, warrants, calls, convertible securities or commitments
of any kind obligating Republic to issue any authorized and unissued Republic
Stock nor does Republic have any outstanding commitment or obligation to
repurchase, reacquire or redeem any of its outstanding capital stock. There
are
no voting trusts, voting agreements, buy-sell agreements or other similar
arrangements affecting the Republic Stock.
-8-
Section
2.3. Approvals;
Authority.
(a) Republic
has full corporate power and authority to execute and deliver this Agreement
(and any related documents), and Republic has full legal capacity, power and
authority to perform its obligations hereunder and thereunder and to consummate
the contemplated transactions.
(b) The
Board
of Directors of Republic has approved this Agreement and the transactions
contemplated herein subject to the approval thereof by the shareholders of
Republic as required by law, and, other than shareholder approval, no further
corporate proceedings of Republic are needed to execute and deliver this
Agreement and consummate the Merger. This Agreement has been duly executed
and
delivered by Republic and is a duly authorized, valid, legally binding agreement
of Republic enforceable against Republic in accordance with its terms, subject
to the effect of bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to creditors’ rights generally and general equitable
principles.
Section
2.4. Investments. Republic
has furnished to Trustmark a complete list, as of December 31, 2005, of all
securities, including municipal bonds, owned by Republic (the “Securities
Portfolio”). Except as set forth in Schedule
2.4,
all
such securities are owned by Republic (a) of record, except those held in bearer
form, and (b) beneficially, free and clear of all mortgages, liens, pledges
and
encumbrances. Schedule
2.4
also
discloses any entities in which the ownership interest of Republic equals 5%
or
more of the issued and outstanding voting securities of the issuer thereof.
There are no voting trusts or other agreements or understandings with respect
to
the voting of any of the securities in the Securities Portfolio.
Section
2.5. Financial
Statements.
(a) Republic
has furnished or made available to Trustmark true and complete copies of its
audited financial statements as of December 31, 2005, 2004 and 2003, its call
reports as of and for the year ended December 31, 2005, and its unaudited
financial statements for the quarter ended March 31, 2006. The audited financial
statements, call reports, and unaudited financial statements referred to in
this
Section 2.5 are collectively referred to in this Agreement as the “Republic
Financial Statements.”
(b) Each
of
the Republic Financial Statements fairly present the financial position of
Republic and the results of its operations at the dates and for the periods
indicated in conformity with generally accepted accounting principles (“GAAP”)
applied on a consistent basis.
(c) As
of the
dates of the Republic Financial Statements referred to above, Republic did
not
have any liabilities, fixed or contingent, which are material and are not fully
shown or provided for in such Republic Financial Statements or otherwise
disclosed in this Agreement, or in any of the documents delivered to Trustmark.
Since December 31, 2005, there have been no material changes in the financial
condition, assets, liabilities or business of Republic, other than changes
made
in the ordinary course of business, which individually or in the aggregate
have
not had a Material Adverse Effect on the Condition of Republic.
-9-
Section
2.6. Loan
Portfolio. (a)
All evidences of indebtedness reflected as assets in the Republic Financial
Statements as of and for the period ended December 31, 2005, were as of such
dates in all material respects the binding obligations of the respective
obligors named therein in accordance with their respective terms, (b) the
allowance for loan losses shown on the Republic Financial Statements as of
and
for the period ended December 31, 2005, was, and the allowance for loan losses
to be shown on the Republic Financial Statements as of any date subsequent
to
the execution of this Agreement will be, as of such dates, in the reasonable
judgment of management of Republic, adequate to provide for possible losses,
net
of recoveries relating to loans previously charged off, in respect of loans
outstanding (including accrued interest receivable) of Republic and other
extensions of credit (including letters of credit or commitments to make loans
or extend credit), and (c) the allowance for loan losses described in clause
(b)
above has been established in accordance with GAAP as applied to banking
institutions and all applicable rules and regulations; provided, however, that
Republic makes no representation or warranty as to the sufficiency of collateral
securing or the collectibility of such loans.
Section
2.7. Certain
Loans and Related Matters.
(a) Except
as
set forth in Schedule
2.7(a),
Republic is not a party to any written or oral: (i) loan agreement,
note or borrowing arrangement under the terms of which the obligor is sixty
(60)
days delinquent in payment of principal or interest or in default of any other
material provisions as of the date hereof; (ii) loan agreement, note or
borrowing arrangement which has been classified or, in the exercise of
reasonable diligence by Republic, should have been classified as “substandard,”
“doubtful,” “loss,” “other loans especially mentioned,” “other assets especially
mentioned” or any comparable classifications by such persons; (iii) loan
agreement, note or borrowing arrangement, including any loan guaranty, with
any
director or executive officer of Republic, or any 10% or more shareholder of
Republic, or any person, corporation or enterprise controlling, controlled
by or
under common control with any of the foregoing; or (iv) loan agreement, note
or
borrowing arrangement in violation of any law, regulation or rule applicable
to
Republic including, but not limited to, those promulgated, interpreted or
enforced by any regulatory agency with supervisory jurisdiction over Republic
and which violation could have a Material Adverse Effect on the Condition of
Republic.
(b) Schedule
2.7(b)
contains
the “watch list of loans” of Republic (the “Watch List”) as of December 31,
2005. Except as set forth in Schedule
2.7(b),
to the
knowledge of Republic, there is no loan agreement, note or borrowing arrangement
which should be included on the Watch List in accordance with Republic’s current
practices and prudent banking principles.
Section
2.8. Real
Property Owned or Leased.
(a) Other
than real property acquired through foreclosure or deed in lieu of foreclosure,
Schedule
2.8(a)
contains
a true, correct and complete list of all real property owned or leased by
Republic (the “Republic Real Property”). True and complete copies of all deeds,
leases and title insurance policies for, or other documentation evidencing
ownership of, the properties referred to in Schedule
2.8(a)
and all
mortgages, deeds of trust and security agreements to which such property is
subject have been furnished or made available to Trustmark.
-10-
(b) No
lease
with respect to any Republic Real Property and no deed with respect to any
Republic Real Property contains any restrictive covenant that materially
restricts the use, transferability or value of such Republic Real Property.
Each
of such leases is a legal, valid and binding obligation enforceable in
accordance with its terms (except as may be limited by bankruptcy, insolvency,
moratorium, reorganization or similar laws affecting the rights of creditors
generally and the availability of equitable remedies), and is in full force
and
effect; there are no existing defaults by Republic or the other party thereunder
and there are no allegations or assertions of such by any party under such
agreement or any events that with notice, lapse of time, or the happening or
occurrence of any other event would constitute a default
thereunder.
(c) To
the
knowledge of Republic, none of the buildings and structures located on any
Republic Real Property, nor any appurtenances thereto or equipment therein,
nor
the operation or maintenance thereof, violates in any material manner any
restrictive covenants or encroaches on any property owned by others, nor does
any building or structure of third parties encroach upon any Republic Real
Property, except for those violations and encroachments which in the aggregate
could not reasonably be expected to cause a Material Adverse Effect on the
Condition of Republic. No condemnation proceeding is pending or, to Republic’s
knowledge, threatened, which would preclude or materially impair the use of
any
Republic Real Property in the manner in which it is currently being
used.
(d) Republic
has good and indefeasible title to, or a valid and enforceable leasehold
interest in, or a contract vendee’s interest in, all Republic Real Property, and
such interest is free and clear of all liens, charges or other encumbrances,
except (i) statutory liens for amounts not yet delinquent or which are being
contested in good faith through proper proceedings, and (ii) those liens related
to real property Taxes, local improvement district assessments, easements,
covenants, restrictions and other matters of record which do not individually
or
in the aggregate materially adversely affect the use and enjoyment of the
relevant real property.
(e) Except
as
set forth in Schedule
2.8(e),
all
buildings and other facilities used in the business of Republic are adequately
maintained and, to Republic’s knowledge, are free from defects which could
materially interfere with the current or future use of such
facilities.
Section
2.9. Personal
Property. Republic
has good title to, or a valid leasehold interest in, all personal property,
whether tangible or intangible, used in the conduct of its business (the
“Republic Personalty”), free and clear of all liens, charges or other
encumbrances, except (a) statutory liens for amounts not yet delinquent or
which
are being contested in good faith through proper proceedings, and (b) such
other
liens, charges, encumbrances and imperfections of title as do not individually
or in the aggregate materially adversely affect the use and enjoyment of the
relevant Republic Personalty. Subject to ordinary wear and tear, the Republic
Personalty is in good operating condition and repair and is adequate for the
uses to which it is being put.
-11-
Section
2.10. Environmental
Laws. To
the knowledge of Republic, Republic and any properties or business owned or
operated by Republic, whether or not held in a fiduciary or representative
capacity, are in material compliance with all terms and conditions of all
applicable federal and state Environmental Laws (as defined below) and permits
thereunder. Republic has not received notice of any violation of any
Environmental Laws or generated, stored, or disposed of any materials designated
as Hazardous Materials (as defined below) under the Environmental Laws, and
they
are not subject to any claim or lien under any Environmental Laws. During the
term of ownership by Republic no real estate currently owned, operated, or
leased (including any property acquired by foreclosure or deeded in lieu
thereof) by Republic, or owned, operated or leased by Republic within the ten
years preceding the date of this Agreement, has been designated by applicable
governmental authorities as requiring any environmental cleanup or response
action to comply with Environmental Laws, or has been the site of release of
any
Hazardous Materials. To the knowledge of Republic, (a) no asbestos was used
in
the construction of any portion of Republic’s facilities, and (b) no real
property currently owned by it is, or has been, an industrial site or landfill.
Trustmark and its consultants, agents and representatives shall have the right
to inspect Republic’s assets for the purpose of conducting asbestos and other
environmental surveys, provided that such inspection shall be at the expense
of
Trustmark and at such time as may be mutually agreed upon between Republic
and
Trustmark.
“Environmental
Laws,” as used in this Agreement, means any applicable federal, state or local
statute, law, rule, regulation, ordinance, code, policy or rule of common law
now in effect and in each case as amended to date, and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree, or judgment, relating to the environment, human health
or
safety, or Hazardous Materials, including without limitation the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
42
U.S.C. § 9601, et
seq.;
The
Hazardous Materials Transportation Authorization Act, as amended, 49 U.S.C.
§
5101, et
seq.;
the
Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. §
6901, et
seq.;
the
Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1201,
et
seq.;
the
Toxic Substances Control Act, 15 U.S.C. § 2601, et
seq.;
the
Clean Air Act, 42 U.S.C. § 7401, et
seq.;
and the
Safe Drinking Water Act, 42 U.S.C. § 300f, et
seq.
“Hazardous
Materials,” as used in this Agreement, includes, but is not limited to,
(a) any petroleum or petroleum products, natural gas, or natural gas
products, radioactive materials, asbestos, urea formaldehyde foam insulation,
transformers or other equipment that contains dielectric fluid containing levels
of polychlorinated biphenyls (PCBs), mold, and radon gas; (b) any
chemicals, materials, waste or substances defined as or included in the
definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,”
“extremely hazardous wastes,” “restricted hazardous wastes,” “toxic substances,”
“toxic pollutants,” “contaminants,” or “pollutants,” or words of similar import,
under any Environmental Laws; and (c) any other chemical, material, waste
or substance which is in any way regulated as hazardous or toxic by any federal,
state or local government authority, agency or instrumentality, including
mixtures thereof with other materials, and including any regulated building
materials such as asbestos and lead.
-12-
Section
2.11. Litigation
and Other Proceedings. Except
as set forth in Schedule
2.11,
there
are no legal, quasi-judicial, regulatory or administrative proceedings of any
kind or nature now pending or, to the knowledge of Republic, threatened before
any court or administrative body in any manner against Republic, or any of
its
properties or capital stock, which might have a Material Adverse Effect on
the
Condition of Republic or the transactions proposed by this Agreement. Republic
does not know of any basis on which any litigation or proceeding could be
brought which could have a Material Adverse Effect on the Condition of Republic
or which could question the validity of any action taken or to be taken in
connection with this Agreement and the transactions contemplated hereby.
Republic is not in default with respect to any judgment, order, writ,
injunction, decree, award, rule or regulation of any court, arbitrator or
governmental agency or instrumentality.
Section
2.12. Taxes. Republic
has filed with the appropriate federal, state and local governmental agencies
all Tax Returns and reports required to be filed, and has paid all Taxes and
assessments shown or claimed to be due. The Tax Returns as filed were correct
in
all respects. Republic has not executed or filed with the Internal Revenue
Service any agreement extending the period for assessment and collection of
any
federal income Tax. Republic is not a party to any action or proceeding by
any
governmental authority for assessment or collection of Taxes, nor has any claim
for assessment or collection of Taxes been asserted against Republic. Republic
has not waived any statute of limitations with respect to any Tax or other
assessment or levy, and all such Taxes and other assessments and levies which
Republic is required by law to withhold or to collect have been duly withheld
and collected and have been paid over to the proper governmental authorities
to
the extent due and payable, or segregated and set aside for such payment and,
if
so segregated and set aside will be so paid by Republic, as required by
law.
True
and
complete copies of the federal income tax returns of Republic as filed with
the
Internal Revenue Service (“IRS”) for the years ended December 31, 2004,
2003 and 2002 have been delivered or made available to Trustmark.
For
purposes of this Agreement, “Tax” or “Taxes” shall mean any and all taxes,
charges, fees, levies or other assessments, including, without limitation,
all
net income, gross income, gross receipts, excise, stamp, real or personal
property, ad valorem, withholding, social security (or similar), unemployment,
occupation, use, production, service, service use, license, net worth, payroll,
franchise, severance, transfer, recording, employment, premium, windfall
profits, environmental (including taxes under Section 59A of the Internal
Revenue Code (the “Code”)), customs duties, capital stock, profits, disability,
sales, registration, value added, alternative or add-on minimum, estimated
or
other taxes, assessments or charges imposed by any federal, state, local or
foreign governmental entity and any interest, penalties, or additions to tax
attributable thereto. For purposes of this Agreement, “Tax Return” shall mean
any return, declaration, report, form or similar statement required to be filed
with respect to any Tax (including any attached schedules), including, without
limitation, any information return, claim for refund, amended return or
declaration of estimated Tax.
Section
2.13. Contracts
and Commitments.
(a) Except
as
set forth in Schedule 2.13,
Republic is not a party to or bound by any of the following (whether written
or
oral, express or implied):
-13-
(i) employment
contract or severance arrangement (including without limitation any collective
bargaining contract or union agreement or agreement with an independent
consultant) which is not terminable by Republic on less than sixty (60)
days’ notice without payment of any amount on account of such termination;
(ii) bonus,
stock option or other employee benefit arrangement, other than any deferred
compensation arrangement disclosed in Schedule
2.20
or any
profit-sharing, pension or retirement plan or welfare plan disclosed in
Schedule
2.19(a);
(iii) material
lease or license with respect to any property, real or personal, whether as
landlord, tenant, licensor or licensee;
(iv)
contract
or commitment for capital expenditures;
(v) material
contract or commitment made in the ordinary course of business for the purchase
of materials or supplies or for the performance of services over a period of
more than one hundred twenty (120) days’ from the date of this Agreement;
(vi) contract
or option to purchase or sell any real or personal property made in the ordinary
course of business;
(vii)
contract,
agreement or letter with respect to the management or operations of Republic
imposed by any bank regulatory authority having supervisory jurisdiction over
Republic;
(viii)
agreement,
contract or indenture related to the borrowing by Republic of money other than
those entered into in the ordinary course of business;
(ix) guaranty
of any obligation for the borrowing of money, excluding endorsements made for
collection, repurchase or resale agreements, letters of credit and guaranties
made in the ordinary course of business;
(x) agreement
with or extension of credit to any executive officer or director of Republic
or
holder of more than ten percent (10%) of the issued and outstanding
Republic Common Stock or Republic Series A Stock, or any affiliate of such
person, which is not on substantially the same terms (including, without
limitation, in the case of lending transactions, interest rates and collateral)
as, and following credit underwriting practices that are not less stringent
than, those prevailing at the time for comparable transactions with unrelated
parties or which involve more than the normal risk of collectibility or other
unfavorable features;
(xi) contract
or commitment to sell all or substantially all of the assets of Republic or
its
Subsidiaries; or
(xii)
contracts,
other than the foregoing, with annual payments aggregating $25,000 or more
not
made in the ordinary course of business and not otherwise disclosed in this
Agreement, in any schedule attached hereto or in any document delivered or
referred to or described in writing by Republic to Trustmark.
-14-
(b) Republic
has in all material respects performed all material obligations required to
be
performed by it to date and is not in default under, and no event has occurred
which, with the lapse of time or action by a third party could result in default
under, any material indenture, mortgage, contract, lease or other agreement
to
which Republic is a party or by which Republic is bound or under any provision
of its Articles of Incorporation or Bylaws.
Section
2.14. Insurance. A
true and complete list of all insurance policies owned or held by or on behalf
of Republic (other than credit-life policies), including policy numbers,
retention levels, insurance carriers, and effective and termination dates,
is
set forth in Schedule 2.14.
Such
policies are in full force and effect and contain only standard cancellation
or
termination clauses. In the judgment of the Board of Directors of Republic,
such
insurance policies in respect of amounts, types and risks insured are adequate
to insure against risks to which Republic and its assets are normally exposed
in
the operation of its business, subject to customary deductibles and policy
limits.
Section
2.15. No
Conflict With Other Instruments. The
execution, delivery and performance of this Agreement and the consummation
of
the transactions contemplated hereby will not (a) conflict with or violate
any provision of Republic’s Articles of Incorporation or Bylaws, or
(b) assuming all required shareholder and regulatory approvals and consents
are duly obtained, will not (i) violate any statute, code, ordinance, rule,
regulation, judgment, order, writ, decree or injunction applicable to Republic
or any of its properties or assets, or (ii) violate, conflict with, result
in a
breach of any provision of or constitute a default (or an event which, with
or
without notice or lapse of time, would constitute a default) under, result
in
the termination of or a right of termination or cancellation under, accelerate
the performance required by, cause Trustmark or Republic to become subject
to or
liable for the payment of any Tax, or result in the creation of any lien, charge
or encumbrance upon any of the properties or assets of Republic under, any
of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
deed
of trust, license, lease agreement, instrument or obligation to which Republic
is a party, or by which any of its properties or assets may be bound or
affected, except for such violations, conflicts, breaches or defaults which
either individually or in the aggregate will not have a Material Adverse Effect
on the Condition of Republic.
Section
2.16. Compliance
with Laws and Regulatory Filings. Republic
is in material compliance with all applicable federal, state and local laws,
rules, regulations and orders applicable to it. Except for approvals by
regulatory authorities having jurisdiction over Republic, no prior consent,
approval or authorization of, or declaration, filing or registration with,
any
person or regulatory authority is required of Republic in connection with the
execution, delivery and performance by Republic of this Agreement and the
transactions contemplated hereby, or the resulting change of control of Republic
except for certain instruments necessary to consummate the Merger contemplated
hereby. Republic has filed all reports, registrations and statements, together
with any amendments required to be made thereto, that are required to be filed
with the Federal Reserve Board or any other regulatory authority having
jurisdiction over Republic and its Subsidiaries, and such reports, registrations
and statements are, to the knowledge of Republic, true and correct in all
material respects.
-15-
Section
2.17. Absence
of Certain Changes. Except
as set forth in Schedule 2.17,
since
December 31, 2005, Republic has not (a) issued or sold any of its
capital stock or corporate debt obligations; (b) declared or set aside or
paid any dividend or made any other distribution (whether in cash, stock or
property) in respect of or, directly or indirectly, purchased, redeemed or
otherwise acquired any shares of Republic Stock; (c) incurred any
obligations or liabilities (fixed or contingent), except obligations or
liabilities incurred in the ordinary course of business, or mortgaged, pledged
or subjected any of its assets to a lien or encumbrance (other than in the
ordinary course of business and other than statutory liens not yet delinquent);
(d) discharged or satisfied any lien or encumbrance or paid any obligation
or liability (fixed or contingent), other than accruals, accounts and notes
payable included in the Republic Financial Statements, accruals, accounts and
notes payable incurred since December 31, 2005 in the ordinary course of
business, and accruals, accounts and notes payable incurred in connection with
the transactions contemplated by this Agreement; (e) sold, exchanged or
otherwise disposed of any of its capital assets other than in the ordinary
course of business; (f) other than in accordance with past practices, made
any general or individual wage or salary increase (including increases in
directors’ or consultants’ fees), paid any bonus, granted or paid any
perquisites such as automobile allowances, club memberships or dues or other
similar benefits, made any accrual or arrangement for or payment of bonuses
or
special compensation of any kind or severance or termination pay to any present
or former officer or salaried employee, or instituted any employee welfare,
retirement or similar plan or arrangement; (g) suffered any physical
damage, destruction or casualty loss, whether or not covered by insurance;
(h) made any or acquiesced with any change in accounting methods,
principles and practices except as may be required by GAAP; (i) excluding
loan commitments made and certificates of deposit issued, entered into any
contract, agreement or commitment which obligates Republic for an amount in
excess of $25,000 over the term of any such contract, agreement or commitment;
(j) except in the ordinary course of business, entered or agreed to enter
into any agreement or arrangement granting any preferential rights to purchase
any of its assets, properties or rights or requiring the consent of any party
to
the transfer and assignment of any such assets, properties or rights; or
(k) incurred any change or any event involving a prospective change in the
Condition of Republic which has had, or is reasonably likely to have, a Material
Adverse Effect on the Condition of Republic, including, without limitation
any
change in the administrative or supervisory standing or rating of Republic
with
any regulatory agency having jurisdiction over Republic, and no fact or
condition exists as of the date hereof which might reasonably be expected to
cause any such event or change in the future.
Section
2.18. Employment
Relations. The
relations of Republic with its employees are satisfactory, and Republic has
not
received any notice of any controversies with, or organizational efforts or
other pending actions by, representatives of its employees. Republic has
materially complied with all laws relating to the employment of labor with
respect to its employees, including any provisions thereof relating to wages,
hours, collective bargaining and the payment of workers’ compensation insurance
and social security and similar taxes, and no person has asserted that Republic
is liable for any arrearages of wages, workers’ compensation insurance premiums
or any taxes or penalties for failure to comply with any of the
foregoing.
-16-
Section
2.19. Employee
Benefit Plans.
(a) Schedule 2.19(a)
lists
all employee benefit plans or agreements providing benefits to any employees
or
former employees of Republic that are sponsored or maintained by Republic to
which Republic contributes or is obligated to contribute on behalf of employees
or former employees of Republic, including without limitation any employee
benefit plan within the meaning of Section 3(3) of the Employment
Retirement Income Security Act of 1974, as amended (“ERISA”), any employee
pension benefit plan within the meaning of Section 3(2) of ERISA, or any
collective bargaining, bonus, incentive, deferred compensation, stock purchase,
stock option, severance, change of control or fringe benefit plan. Except as
set
forth in Schedule
2.19(a),
all
employee benefit plans maintained by Republic and its Subsidiaries are in
material compliance with the provisions of ERISA and the applicable provisions
of the Code.
(b) No
employee benefit plans of Republic or its ERISA Affiliates (as defined below)
(the “Republic Plans”) are subject to Title IV of ERISA or are “multiemployer
plans” within the meaning of Section 4001(a)(3) of ERISA (“Multiemployer
Plans”). None of Republic or any of its respective ERISA Affiliates has, at any
time during the last six years, contributed to or been obligated to contribute
to any Multiemployer Plan, and none of Republic, or any of its respective ERISA
Affiliates has incurred any withdrawal liability under Part I of
Subtitle E of Title IV of ERISA that has not been satisfied in
full.
(c) To
the
knowledge of Republic and its Subsidiaries, no “prohibited transaction,” as
defined in Section 406 of ERISA or Section 4975 of the Code, has occurred that
could result in liability to Republic and its Subsidiaries. Republic’s 401(k)
Plan has been determined to be “qualified” within the meaning of Section 401(a)
of the Code and neither Republic or its Subsidiaries knows of any fact which
would adversely affect the qualified status of such plan. Republic has provided
Trustmark with copies of the most recent determination letters issued by the
IRS
with respect to such plans.
(d) There
does not now exist, nor, to the best knowledge Republic, do any circumstances
exist that could result in, any Controlled Group Liability that would be a
material liability of Republic now or following the Closing. “Controlled Group
Liability” means (i) any and all liabilities (A) under Title IV
of ERISA, (B) under Section 302 of ERISA, (C) under
Sections 412 and 4971 of the Code, or (D) as a result of a failure to
comply with the continuation coverage requirements of Section 601
et
seq.
of ERISA
and Section 4980B of the Code, and (E) under corresponding or similar
provisions of foreign laws or regulations; (ii) with respect to any
Republic Plan any other material liability under Title I of ERISA or
Chapter 43 or 68 of the Code, and (iii) material unfunded liabilities
under any non-qualified deferred compensation plan for the benefit of any
employee or former employee of Republic.
(e) “ERISA
Affiliates” means, with respect to any entity, trade or business, any other
entity, trade or business that is a member of a group described in
Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of
ERISA that includes the first entity, trade or business, or that is a member
of
the same “controlled group” as the first entity, trade or business pursuant to
Section 4001(a)(14) of ERISA.
-17-
Section
2.20. Deferred
Compensation Arrangements. Schedule
2.20
contains
a list of all deferred compensation arrangements of Republic, if any, including
the terms under which the cash value of any life insurance purchased in
connection with any such arrangement can be realized.
Section
2.21. Brokers,
Finders and Financial Advisors. Except
for the persons and fees set forth in Schedule
2.21,
neither
Republic nor any of its officers, directors or employees have employed any
broker, finder or financial advisor or incurred any liability for any brokerage
fees, commissions or finders’ fees in connection with this Agreement and the
transactions contemplated herein.
Section
2.22. Trust
Preferred Securities.
(a) Republic
has issued and presently outstanding $8,248,000 of Floating Junior Subordinated
Debentures due 2033 issued by Republic Bancshares Capital Trust I (“Trust I”)
pursuant to an Indenture dated as of December 19, 2002 between Republic and
Wilmington Trust Company, as Trustee (the “Trustee”). Trust I has issued and
outstanding $8,000,000 in aggregate principal amount of trust preferred
securities pursuant to the terms of the Amended and Restated Declaration of
Trust dated as of December 19, 2002 among Republic, the Trustee, and the
administrators named therein.
(b) All
representations and warranties made by Republic in the documents related to
the
issuance of the trust preferred securities were true in all material respects
when made.
Section
2.23. Derivative
Contracts. Republic
is not a party to nor has it agreed to enter into an exchange-traded or
over-the-counter swap, forward, future, option, cap, floor or collar financial
contract or agreement, or any other contract or agreement not included in the
Republic Financial Statements which is a financial derivative contract
(including various combinations thereof) (“Derivative Contracts”).
Section
2.24. Deposits. To
the knowledge of Republic, none of the deposits of Republic is a “brokered”
deposit (as such term is defined in 12 CFR 337.6(a)(2)) or is subject to
any encumbrance, legal restraint or other legal process (other than
garnishments, pledges, set off rights, escrow limitations and similar actions
taken in the ordinary course of business).
Section
2.25. Accounting
Controls. Republic
has devised and maintained a system of internal accounting controls sufficient
to provide reasonable assurances that: (a) all material transactions are
executed in accordance with general or specific authorization of the Board
of
Directors and the duly authorized executive officers of Republic; (b) all
material transactions are recorded as necessary to permit the preparation of
financial statements in conformity with GAAP consistently applied with respect
to institutions such as Republic or other criteria applicable to such financial
statements, and to maintain proper accountability for items therein;
(c) access to the material properties and assets of Republic is permitted
only in accordance with general or specific authorization of the Board of
Directors and the duly authorized executive officers of Republic; and
(d) the recorded accountability for items is compared with the actual
levels at reasonable intervals and appropriate actions taken with respect to
any
differences.
-18-
Section
2.26. Community
Reinvestment Act. Republic
is in material compliance with the Community Reinvestment Act (12 U.S.C.
§ 2901 et
seq.)
(“CRA”)
and all regulations promulgated thereunder, and Republic has supplied Trustmark
with copies of Republic’s current CRA Statement, all support papers therefor,
all letters and written comments received by Republic since January 1, 2002
pertaining thereto and any responses by Republic to such comments. Republic
has
a rating of “satisfactory” as of its most recent CRA compliance examination and
knows of no reason why it would not receive a rating of “satisfactory” or better
pursuant to its next CRA compliance examination or why the OCC or any other
governmental entity may seek to restrain, delay or prohibit the transactions
contemplated hereby as a result of any act or omission of Republic under the
CRA.
Section
2.27. Intellectual
Property Rights. Schedule
2.27
contains
a correct and complete list of all registered trademarks, registered service
marks, trademark and service xxxx applications, trade names and registered
copyrights presently owned or held by Republic or any Subsidiary or used under
license by them in the conduct of their business (the “Intellectual Property”).
Republic and its Subsidiaries own or have the right to use and continue to
use
the Intellectual Property in the operation of their business. Other than as
set
forth in Schedule
2.27,
neither
Republic nor any Subsidiary is, to their knowledge, infringing or violating
any
patent, copyright, trademark, service xxxx, label filing or trade name owned
or
otherwise held by any other party, nor has Republic or any Subsidiary, to their
knowledge, used any confidential information or any trade secrets owned or
otherwise held by any other party, without holding a valid license for such
use.
No
Intellectual Property will be adversely affected as a result of the
Merger.
Section
2.28.
Bank
Secrecy Act; USA PATRIOT Act. Other
than as set forth in Schedule 2.28,
Republic has neither had nor suspected any incidents of fraud or defalcation
during the last two years. Republic is in material compliance with the Bank
Secrecy Act and all regulations promulgated thereunder and has timely and
properly filed and maintained all requisite Currency Transaction Reports and
Suspicious Activity Reports and has properly monitored transaction activity
(including, but not limited to, wire transfers). In addition, Republic is in
material compliance with the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT)
Act, GLB Act Privacy Provisions, Office of Foreign Assets Control Regulation
(OFAC), Bank Protection Act, and all applicable Financial Crimes Enforcement
Network (FinCEN) requirements and all other related laws.
Section
2.29. Fairness
Opinion. Prior
to the execution of this Agreement, Republic has received an opinion from Xxxxx,
Xxxxxxxx & Xxxxx, Inc., to the effect that, subject to the terms, conditions
and qualifications set forth therein, as of the date hereof, the Merger
Consideration to be received by the shareholders of Republic pursuant to this
Agreement is fair to such shareholders from a financial point of view, and
such
opinion will be updated as of the date of the Proxy Statement (as defined in
Section 5.2 hereof). Such opinion has not been amended or
rescinded.
Section
2.30. Shareholders’
List. Republic
has provided or made available to Trustmark as of a date within ten (10)
days of the date of this Agreement a list of the holders of shares of Republic
Stock containing the names, addresses and number of shares held of record,
which
shareholders’ list is in all respects accurate as of such date and will be
updated prior to Closing.
-19-
Section
2.31. Vote
Required. The
affirmative vote of the holders of two thirds of the outstanding Republic Common
Stock and the Republic Series A Stock is the only vote required of the
shareholders of Republic necessary to approve the Merger and the related
transactions contemplated thereby. The affirmative vote of Republic, as the
sole
shareholder of Republic-Delaware, is the only vote of the shareholders of
Republic-Delaware necessary to approve the merger of Republic-Delaware into
Republic and the related transactions contemplated thereby.
Section
2.32. Full
Disclosure. This
Agreement, the Schedules, and all information provided to Trustmark in writing
pursuant to this Agreement does not contain any untrue statements of material
fact and Republic has not omitted to disclose to Trustmark any material fact
known to Republic concerning the financial condition, properties, or prospects
of Republic or its Subsidiaries.
Section
2.33. Disclosure
Documents. With
respect to information supplied or to be supplied by Republic for inclusion
in
the Proxy Statement and the registration statement to be filed with the
Securities and Exchange Commission (“SEC”)
by
Trustmark for the registration of the shares of Trustmark Common Stock to be
issued in connection with the Merger (the “Registration
Statement”):
(a)
the Proxy Statement, at the time of the mailing thereof to shareholders of
Republic and at the time of the special meeting of Republic’s shareholders, will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they are made,
not
misleading; and (b) the Registration Statement, at the time it becomes effective
under the Securities Act, will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
Section
2.34. SEC
Deregistration. On
February 2, 0000 Xxxxxxxx filed a Form 15 deregistration statement with the
SEC
for the deregistration of the Republic Common Stock under Section 12 of the
Exchange Act. Pursuant to Rule 12g-4(a), however, Republic’s Exchange Act
registration remains effective until May 2, 2006. Republic represents and
warrants to Trustmark that it has not received any notice of, nor does it have
any knowledge of, the SEC’s rejection of Republic’s Form 15. Furthermore,
Republic agrees to immediately notify Trustmark of the receipt of any such
notice from the SEC.
III. REPRESENTATIONS
AND WARRANTIES OF TRUSTMARK
Trustmark,
for itself and its Subsidiary, Trustmark National Bank, makes the following
representations and warranties to Republic, which representations and warranties
shall, individually and in the aggregate, be true and correct in all respects
upon the date of this Agreement and on the Closing Date (except that all
representations and warranties made as of a specific date shall be true and
correct as of such date).
-20-
Section
3.1. Organization. Trustmark
is a corporation duly organized, validly existing and in good standing under
the
laws of the State of Mississippi and a bank holding company duly registered
under the BHC Act, subject to all laws, rules and regulations applicable to
bank
holding companies. Trustmark owns 100% of the issued and outstanding capital
stock of Trustmark National Bank. Trustmark National Bank is a national banking
association duly organized, validly existing and in good standing under the
laws
of the United States. Trustmark National Bank is an insured bank as defined
in
the Federal Deposit Insurance Act. Trustmark and Trustmark National Bank have
full power and authority (including all licenses, franchises, permits and other
governmental authorizations which are legally required) to own their properties,
to engage in the business and activities now conducted by them and to enter
into
this Agreement, except where the failure to be so licensed or qualified would
not have a Material Adverse Effect on the Condition of Trustmark, considered
as
a consolidated whole.
Section
3.2. Capitalization.
The
authorized capital stock of Trustmark consists of 250,000,000 shares of
Trustmark Common Stock, no par value, of which 55,772,059 are issued and
outstanding as of March 13, 2006, and of which 5,677,526 are reserved for
issuance upon the exercise of stock options, and 20,000,000 shares of Trustmark
preferred stock, no par value, of which none are issued and outstanding as
of
March 13, 2006. The authorized capital stock of Trustmark National Bank consists
of 2,677,955 shares of Trustmark National Bank common stock, $5.00 par value,
2,677,955 of which are issued and outstanding. All of the issued and outstanding
shares of Trustmark Common Stock are validly issued, fully paid and
nonassessable, and have not been issued in violation of the preemptive rights
of
any person or in violation of any applicable federal or state laws. The shares
of Trustmark Common Stock to be issued to Republic shareholders pursuant to
the
provisions of this Agreement have been duly authorized, will be validly issued,
fully paid and nonassessable and will not be issued in violation of the
preemptive rights of any person. There are no voting trusts, voting agreements
or other similar arrangements affecting the Trustmark Common Stock.
Section
3.3. Approvals;
Authority.
(a) Trustmark
has full corporate power and authority to execute and deliver this Agreement,
to
perform their respective obligations hereunder and to consummate the
transactions contemplated hereby.
(b) The
Board
of Directors of Trustmark has approved this Agreement and the transactions
contemplated herein subject to any approval thereof by the shareholders of
Trustmark as required by law, and no further corporate proceedings of Trustmark
is needed to execute and deliver this Agreement and consummate the Merger.
This
Agreement has been duly executed and delivered by Trustmark and is a duly
authorized, valid, legally binding agreement of Trustmark enforceable against
Trustmark in accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to
creditors’ rights generally and general equitable principles.
-21-
Section
3.4. No
Conflict With Other Instruments. The
execution, delivery and performance of this Agreement or the consummation of
the
transactions contemplated hereby will not (a) violate any provision of the
respective Articles of Incorporation or Bylaws of Trustmark, or
(b) assuming all required shareholder and regulatory consents and approvals
are duly obtained, (i) violate any statute, code, ordinance, rule,
regulation, judgment, order, writ, decree or injunction applicable to Trustmark
or any of its properties or assets, or (ii) violate, conflict with, result
in a breach of any provision of or constitute a default (or an event which,
with
or without notice or lapse of time, would constitute a default) under, result
in
the termination of or a right of termination or cancellation under, accelerate
the performance required by, cause Trustmark to become subject to or liable
for
the payment of any Tax, or result in the creation of any lien, charge or
encumbrance upon any of the properties or assets of Trustmark under, any of
the
terms, conditions or provisions of any note, bond, mortgage, indenture, deed
of
trust, license, lease agreement, instrument or obligation to which Trustmark
is
a party, or by which any of its properties or assets may be bound or affected,
except for such violations, conflicts, breaches or defaults which either
individually or in the aggregate will not have a Material Adverse Effect on
the
Condition of Trustmark.
Section
3.5. Financial
Statements.
(a) Trustmark
has furnished or made available to Republic true and complete copies of its
Annual Report on Form 10-K for the year ended December 31, 2005 (“Annual
Report”), as filed with the SEC, which contains Trustmark’s audited balance
sheets as of December 31, 2005 and 2004, and the related statements of income
and statements of changes in shareholders equity and cash flow for the years
ended December 31, 2005, 2004 and 2003. The financial statements referred to
above included in the Annual Report are referred to herein as the “Trustmark
Financial Statements.”
(b) The
Trustmark Financial Statements fairly present the financial position and results
of operation of Trustmark at the dates and for the periods indicated in
conformity with GAAP applied on a consistent basis.
(c) Since
December 31, 2005, Trustmark has not had any obligations or liabilities, fixed
or contingent, which are material and are not fully shown or provided for in
the
Trustmark Financial Statements or otherwise disclosed in this Agreement, or
in
any of the documents delivered to Republic. Since December 31, 2005, there
have
been no material changes in the financial condition, assets, liabilities or
business of Trustmark, other than changes in the ordinary course of business,
which individually or in the aggregate have not had a Material Adverse Effect
on
the Condition of Trustmark.
Section
3.6. Securities
and Exchange Commission Reporting Obligations. Trustmark
has filed all material reports and statements, together with any amendments
required to be made with respect thereto, that it was required to file with
the
SEC pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange
Act”). As of their respective dates, each of such reports and statements (or if
amended, as of the date so amended), were true and correct and complied in
all
material respects with the relevant statutes, rules and regulations enforced
or
promulgated by the SEC, and such reports did not contain any untrue statement
of
a material fact or omit to state a material fact necessary in order to make
the
statements therein, in light of the circumstances under which they were made,
not misleading.
-22-
Section
3.7. Trustmark
Employee Benefit Plans. The
employee benefits plans and welfare benefit plans (referred to collectively
herein as the “Trustmark Plans”) in effect at Trustmark and its Subsidiaries
have all been operated in all material respects in compliance with ERISA, since
ERISA became applicable with respect thereto. None of the Trustmark Plans nor
any of their respective related trusts have been terminated (except the
termination of any Trustmark Plan which is in compliance with the requirements
of ERISA and which will not result in any additional liability to Trustmark),
and there has been no “reportable event,” as that term is defined in Section
4043 of ERISA, required to be reported since the effective date of ERISA which
has not been reported, and none of such Trustmark Plans nor their respective
related trusts have incurred any “accumulated funding deficiency,” as such term
is defined in Section 302 of ERISA (whether or not waived), since the effective
date of ERISA. The Trustmark Plans are the only employee benefit plans covering
employees of Trustmark and its Subsidiaries. Trustmark and its Subsidiaries
will
not have any material liabilities with respect to employee benefits, whether
vested or unvested as of the Closing Date, for any of their employees other
than
under the Trustmark Plans, and as of the date hereof the actuarial present
value
of Trustmark Plan assets of each Trustmark Plan is not less (and as of the
Effective Time of the Merger such present value will not be less) than the
present value of all benefits payable or to be payable thereunder.
Section
3.8. Regulatory
Approvals. Trustmark
has no reason to believe that it will not be able to obtain all requisite
regulatory approvals necessary to consummate the transactions set forth in
this
Agreement without unnecessary delay.
Section
3.9. Taxes. Trustmark
and its Subsidiaries have filed with the appropriate federal, state and local
governmental authorities all material Tax Returns and reports required to be
filed, and have paid all Taxes and assessments shown to be due and payable
thereon. At the time of filing, all such Tax Returns were correct in all
material respects. Neither Trustmark nor any of its Subsidiaries have executed
or filed with the Internal Revenue Service any agreement extending the period
for assessment and collection of any federal income Tax. Neither Trustmark
nor
any Subsidiary is a party to any pending action or proceeding by any
governmental authority for assessment or collection of Taxes, nor has any
written claim for assessment or collection of Taxes been asserted against
Trustmark or any Subsidiary. All Taxes which Trustmark or any Subsidiary is
or
was required by law to withhold or to collect have been duly withheld and
collected and have been paid over to the proper authorities to the extent due
and payable, or segregated and set aside for such payment and, if so segregated
and set aside will be so paid by Trustmark or any Subsidiary, as required by
applicable law.
Section
3.10. Insurance. Trustmark
currently maintains insurance in amounts reasonably necessary for its
operations. In the judgment of the Board of Directors of Trustmark, such
insurance policies in respect of amounts, types and risks insured are adequate
to insure against risks to which Trustmark and its assets are normally exposed
in the operation of its business, subject to customary deductibles and policy
limits. Trustmark has no reason to believe that existing insurance coverage
cannot be renewed as and when the same shall expire upon terms and conditions
as
favorable as those presently in effect, other than possible increases in
premiums or unavailability of coverage that do not result from any extraordinary
loss experience on the part of Trustmark.
-23-
Section
3.11. Laws
and Regulatory Filings. Trustmark
and its Subsidiaries are in material compliance with all applicable federal,
state and local laws, rules, regulations and orders applicable to them, except
where such noncompliance would not result in a Material Adverse Effect on
Trustmark. Except for approvals by regulatory authorities having supervisory
jurisdiction over Trustmark and its Subsidiaries, no prior consent, approval
or
authorization of, or declaration, filing or registrations with, any person
or
regulatory authority is required of Trustmark and its Subsidiaries in connection
with the execution, delivery and performance by Trustmark of this Agreement
and
the transactions contemplated hereby. Trustmark and its Subsidiaries have filed
all reports, registrations and statements, together with any amendments required
to be made thereto, that are required to be filed with the Federal Reserve
Board, the FDIC, the OCC, or any other regulatory authority having supervisory
jurisdiction over Trustmark and its Subsidiaries, and such reports,
registrations and statements, as finally amended or corrected, are, to the
knowledge of Trustmark and its Subsidiaries, true and correct in all material
respects.
Section
3.12. Community
Reinvestment Act. Trustmark
National Bank is in material compliance with the CRA and all regulations
promulgated thereunder. Trustmark National Bank has a rating of “satisfactory”
as of its most recent CRA compliance examination and, knows of no reason why
it
would not receive a rating of “satisfactory” or better pursuant to its next CRA
compliance examination or why the OCC or any other governmental entity may
seek
to restrain, delay or prohibit the transactions contemplated hereby as a result
of any act or omission of the Trustmark National Bank under the
CRA.
Section
3.13. Litigation
and Other Proceedings. There
are no legal, quasi-judicial or administrative proceedings of any kind or nature
now pending or, to the knowledge of Trustmark, threatened before any court
or
administrative body in any manner against Trustmark, or any of its properties
or
capital stock, which might have a Material Adverse Effect on the Condition
of
Trustmark or the transactions proposed by this Agreement. Trustmark knows of
no
basis on which any litigation or proceeding could be brought which could have
a
Material Adverse Effect on the Condition of Trustmark or which could question
the validity of any action taken or to be taken in connection with this
Agreement and the transactions contemplated hereby. Trustmark is not in default
with respect to any judgment, order, writ, injunction, decree, award, rule
or
regulation of any court, arbitrator or governmental agency or
instrumentality.
Section
3.14. Brokers
and Finders. Other
than as set forth on Schedule
3.14,
neither
Trustmark nor any of its officers, directors or employees have employed any
broker or finder or incurred any liability for any brokerage fees, commissions
or finders’ fees in connection with this Agreement.
Section
3.15. Xxxxxxxx-Xxxxx
Act Compliance. Trustmark
and its Subsidiaries and any of the officers and directors of Trustmark, in
their capacities as such, are in compliance, in all material respects, with
the
provisions of the Xxxxxxxx-Xxxxx Act of 2002 (“Xxxxxxxx-Xxxxx Act”) and the
related rules and regulations promulgated thereunder by the SEC and
NASDAQ.
Section
3.16. Absence
of Certain Changes. Since
December 31, 2005, (a) Trustmark and its Subsidiaries have conducted their
respective businesses in the ordinary and usual course consistent with prudent
banking practices (excluding the incurrence of expenses related to this
Agreement and the transactions contemplated hereby), and (b) no event has
occurred or circumstance arisen that, individually or in the aggregate, has
had
or could reasonably be expected to have a Material Adverse Effect on
Trustmark.
-00-
XX. XXXXXXXXX
XX XXXXXXXX
Xxxxxxxx
covenants and agrees with Trustmark as follows:
Section
4.1. Shareholder
Approval and Best Efforts. Republic
will, as soon as practicable following acceptance of Trustmark’s regulatory
applications for processing, but in no event prior to May 3, 2006, take all
steps under applicable law to call, give notice of, convene and hold a meeting
of its shareholders at such time as may be mutually agreed to by the parties
for
the purpose of approving this Agreement and the transactions contemplated hereby
and for such other purposes consistent with the complete performance of this
Agreement as may be necessary and desirable. The Board of Directors of Republic
will recommend to its shareholders the approval of this Agreement and the
transactions contemplated hereby, unless otherwise required by their fiduciary
duties under applicable law, and Republic will use its best efforts to obtain
the necessary approvals by its shareholders of this Agreement and the
transactions contemplated hereby. If the transaction is approved by such
shareholders, Republic will take all reasonable action to aid and assist in
the
consummation of the Merger, and will use its best efforts to take or cause
to be
taken all other actions necessary, proper or advisable to consummate the
transactions contemplated by this Agreement, including such actions as Trustmark
reasonably considers necessary, proper or advisable in connection with filing
applications and registration statements with, or obtaining approvals from,
all
governmental entities having jurisdiction over the transactions contemplated
by
this Agreement.
Section
4.2. Activities
of Republic Pending Closing.
(a) From
the
date hereof to and including the Closing Date, as long as this Agreement remains
in effect Republic shall (i) conduct its affairs (including, without
limitation, the making of or agreeing to make any loans or other extensions
of
credit) only in the ordinary course of business consistent with past practices
and prudent banking principles; (ii) use its best efforts to preserve
intact its present business organizations, keep available the services of its
present officers, directors, key employees and agents and preserve its
relationships and goodwill with customers and advantageous business
relationships; and (iii) except as required by law or regulation, take no
action which would adversely affect or delay the ability of Republic or
Trustmark to obtain any approvals from any regulatory agencies or other
approvals required for consummation of the transactions contemplated hereby
or
to perform its obligations and agreements under this Agreement.
(b) From
the
date hereof to and including the Closing Date, except as required by law or
regulation, as long as this Agreement remains in effect or unless Trustmark
otherwise consents in writing (which consent shall not be unreasonably
withheld), Republic shall not:
(i)
make
or
agree to make or renew any loans or other extensions of credit to any borrower
in excess of $1,000,000 (except (A) pursuant to commitments made prior to
the date of this Agreement, (B) loans fully secured by a certificate of
deposit at Republic, and (C) renewals, extensions and consolidations of any
loans other than those loans listed in Schedule 2.7);
provided, however, that in the event that Republic desires to make or renew
any
such loan in excess of $1,000,000, Republic shall so advise Trustmark in
writing. Trustmark shall notify Republic in writing within three (3)
business days of receipt of such notice whether Trustmark consents to such
loan
or extension of credit, provided that if Trustmark fails to notify Republic
with
such time frame, Trustmark shall be deemed to have consented to such loan or
extension of credit;
-25-
(ii) issue
or
sell or obligate itself to issue or sell any shares of its capital stock (other
than issuances for the Republic Employee Stock Purchase Plan purchases but
only
in such amounts accrued or withheld as of the date of this Agreement) or any
warrants, rights or options to acquire, or any securities convertible into,
any
shares of its capital stock, or declare or pay any dividend in respect of its
capital stock;
(iii) open
or
close any branch office, or acquire or sell or agree to acquire or sell, any
branch office or any deposit liabilities, and shall otherwise consult with
and
seek the advice of Trustmark with respect to basic policies relating to
branching, site location and relocation;
(iv) enter
into, amend or terminate any agreement of the type that would be required to
be
disclosed in Schedule 2.13,
or any
other material agreement, or acquire or dispose of any material amount of assets
or liabilities, except in the ordinary course of business consistent with
prudent banking practices;
(v) grant
any
severance or termination pay (other than pursuant to Republic’s policies in
effect on the date hereof) to, or enter into any employment, consulting,
noncompetition, retirement, parachute, severance or indemnification agreement
with, any officer, director, employee or agent of Republic, either individually
or as part of a class of similarly situated persons (other than as required
or
contemplated by this Agreement);
(vi) cause
or
allow any of the things listed in Section 2.17 to occur (except with
respect to Section 2.17(g), Republic shall use its best efforts to not
cause or allow any of the things listed therein to occur);
(vii)
sell,
transfer, convey or otherwise dispose of any real property (including “other
real estate owned”) or interest therein;
(viii)
foreclose
upon or otherwise acquire any commercial real property prior to receipt and
approval by Trustmark of a Phase I environmental review
thereof;
(ix) increase
or decrease the rate of interest paid on deposit accounts, except in a manner
and pursuant to policies consistent with Republic’s past practices;
(x) establish
any new Subsidiary;
(xi) voluntarily
make any material change in the interest rate risk profile of Republic from
that
as of December 31, 2005;
-26-
(xii)
materially
deviate from policies and procedures existing as of the date of this Agreement
with respect to (A) classification of assets, (B) the allowance for
loan losses, and (C) accrual of interest on assets, except as otherwise
required by the provisions of this Agreement;
(xiii)
amend
or
change any provision of Republic’s Articles of Incorporation or
Bylaws;
(xiv)
make
any
capital expenditure which would exceed an aggregate of $50,000;
(xv)
excluding
deposits, certificates of deposit, FHLB advances and borrowings consistent
with
past practices, undertake any additional borrowings in excess of
ninety (90) days; or
(xvi)
modify
any outstanding loan or acquire any loan participation, unless such modification
is made in the ordinary course of business, consistent with past
practice.
Section
4.3. Access
to Properties and Records. To
the extent permitted by applicable law, Republic shall (a) afford the
executive officers and authorized representatives (including legal counsel,
accountants and consultants) of Trustmark full access to the properties, books
and records of Republic in order that Trustmark may have full opportunity to
make such reasonable investigation as it shall desire to make of the affairs
of
Republic, and (b) furnish Trustmark with such additional financial and
operating data and other information as to the business and properties of
Republic as Trustmark shall, from time to time, request. As soon as practicable
after they become available, Republic will deliver or make available to
Trustmark all call reports filed by Republic with the appropriate federal
regulatory authority after the date of this Agreement. All financial statements
shall be prepared in accordance with GAAP applied on a consistent basis with
previous accounting periods. In the event of the termination of this Agreement,
Trustmark will return to Republic all documents and other information obtained
pursuant hereto and will keep confidential any information obtained pursuant
to
this Agreement.
Section
4.4. Information
for Regulatory Applications and SEC Filings. To
the extent permitted by law, Republic will furnish Trustmark with all
information concerning Republic required for inclusion in any application,
filing, registration statement or document to be made or filed by Trustmark
or
Republic with any federal or state regulatory or supervisory authority in
connection with the transactions contemplated by this Agreement during the
pendency of this Agreement. Republic represents and warrants that all
information so furnished for such applications and filings shall, to the best
of
its knowledge, be true and correct in all material respects without omission
of
any material fact required to be stated to make the information not misleading.
Republic agrees at any time, upon the request of Trustmark, to furnish to
Trustmark a written letter or statement confirming the accuracy of the
information with respect to Republic contained in any report or other
application or statement referred to in this Agreement, and confirming that
the
information with respect to Republic contained in such document or draft was
furnished by Republic expressly for use therein or, if such is not the case,
indicating the inaccuracies contained in such document or indicating the
information not furnished by Republic expressly for use therein.
-27-
Section
4.5. Standstill
Provision. So
long as this Agreement is in effect, neither Republic nor any of its
Subsidiaries shall, and Republic agrees and will use its best efforts to cause
its directors, officers, employees, agents and representatives not to, directly
or indirectly, take any action to solicit, initiate, or encourage the making
of
any Acquisition Proposal (as hereinafter defined); nor will they enter into
any
negotiations concerning, furnish any nonpublic information relating to Republic
in connection with, or agree to any Acquisition Proposal; except where the
Board
of Directors of Republic determines, based on the written advice of counsel,
that the failure to furnish such information or participate in such negotiations
or discussions would or could reasonably be deemed to constitute a breach of
the
legal or fiduciary obligations of the Board of Directors to Republic’s
shareholders. Republic agrees to notify Trustmark promptly of any Acquisition
Proposal received and provide reasonable detail as to the identity of the
proposed acquiror and the nature of the proposed transaction.
Section
4.6. Affiliate
Agreement. No
later than the fifteenth (15th)
day
following the date of execution of this Agreement, Republic shall deliver to
Trustmark, after consultation with legal counsel, a list of names and addresses
of those persons who are then “affiliates” of Republic with respect to the
Merger within the meaning of Rule 144 under the Securities Act. There shall
be
added to such list the names and addresses of any other person (within the
meaning of Rule 144) which Trustmark identifies (by written notice to Republic
within three business days after receipt of such list) as possibly being a
person who may be deemed to be an “affiliate” of Republic within the meaning of
Rule 144. Notwithstanding the foregoing, X. X. Xxxxx, Xxxxxx X. Xxxxx, Xxxx
X.
Xxxxxxxxxxxx, Xxxxx X. Xxxxxxx, Xxxxx X. Xxxx, and R. Xxxx XxXxxxxxx shall
be
deemed “affiliates” within the meaning of Rule 144. Republic shall cause each
“affiliate” to deliver, to Trustmark, not later than the thirtieth
(30th)
day
following the date of execution of this Agreement, an agreement dated as of
the
date of delivery thereof in the form of Exhibit C attached hereto.
Section
4.7. Trust
Preferred Issue. As
soon as practicable following the execution of this Agreement, Republic shall
notify the Trustee with respect to its issue of trust preferred securities
of
the execution of this Agreement and shall obtain from the Trustee confirmation
that (a) no Default or Event of Default (as those terms are defined in the
Indenture and related Guarantee Agreement) exists or is continuing; (b) no
Default or Event of Default will occur as a result of the execution, delivery
and performance by Republic of its obligations under the terms of this
Agreement; and (c) Republic has not elected to commence an Extended Interest
Payment Period as that term is defined in the Indenture.
Section
4.8. Merger
of Republic-Delaware into Republic. Prior
to the Closing Date, Republic shall have undertaken all approvals, filings,
and
other steps necessary to cause the merger of Republic-Delaware with and into
Republic.
Section
4.9. Bank
Merger. Prior
to the Effective Time, Republic shall cause Republic Bank to cooperate with
Trustmark and Trustmark National Bank as necessary in conjunction with all
approvals, filings, and other steps necessary to cause the consummation of
the
Bank Merger immediately following the Effective Time.
-28-
Section
4.10. Amendments
to Employment Agreements. Within
fifteen (15) days after the date of this Agreement, Republic shall have taken
all actions necessary to approve and execute the Amendments to Employment
Agreements of X. X. Xxxxx and R. Xxxx XxXxxxxxx in the Form attached hereto
as
Exhibits D and E respectively, and to deliver executed copies of such Amendments
to Trustmark.
Section
4.11. Employee
Benefit Plans. Republic
shall execute and deliver such instruments and take such other actions as
Trustmark may reasonably require in order to cause the amendment or termination
of any of its employee benefit plans on terms satisfactory to Trustmark and
in
accordance with applicable law and effective as of the Closing
Date.
Section
4.12. Change
in Control Payments. On
or before the Effective Time, Republic shall (a) pay X. X. Xxxxx the Republic
Change in Control payments as defined in Section 7 of Exhibit F attached hereto,
and (b) make the payments required by R. Xxxx XxXxxxxxx’x Employment Agreement
with Republic, as amended.
V. COVENANTS
OF TRUSTMARK
Trustmark
covenants and agrees with Republic as follows:
Section
5.1. Regulatory
Filings and Best Efforts. Trustmark
will take all reasonable action to aid and assist in the consummation of the
Merger and the transactions contemplated hereby, and will use its best efforts
to take or cause to be taken all other actions necessary, proper or advisable
to
consummate the transactions contemplated by this Agreement, including such
actions which are necessary, proper or advisable in connection with filing
applications with, or obtaining approvals from, all regulatory authorities
having jurisdiction over the transactions contemplated by this
Agreement.
Section
5.2. Registration
Statement. Within
thirty (30) days after the execution of this Agreement, Trustmark will prepare
and file with the SEC a Registration Statement on Form S-4 under the Securities
Act and any other applicable documents, relating to the shares of Trustmark
Common Stock to be delivered to the shareholders of Republic pursuant to this
Agreement, and will use its best efforts to cause the Registration Statement
to
become effective. Republic and its counsel shall be given the opportunity to
participate in the preparation of the Registration Statement and shall have
the
right to approve the content of the Registration Statement with respect to
Republic and the Republic shareholders meeting. At the time the Registration
Statement becomes effective, the Registration Statement will comply in all
material respects with the provisions of the Securities Act and the published
rules and regulations thereunder, and will not contain any untrue statement
of a
material fact or omit to state a material fact required to be stated therein
or
necessary to make the statements therein not false or misleading, and at the
time of mailing thereof to Republic’s shareholders and at the time of the
Republic shareholders’ meeting held to approve the Merger, the Proxy Statement
included as part of the Registration Statement (the “Proxy Statement”), as
amended or supplemented by any amendment or supplement filed by Trustmark will
not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not false or misleading;
provided, however, that none of the provisions of this subparagraph shall apply
to statements in or omissions from the Registration Statement or the Proxy
Statement made in reliance upon and in conformity with information furnished
by
Republic for use in the Registration Statement or the Proxy
Statement.
-29-
Section
5.3. Employee
Benefit Plans. Trustmark
agrees that the employees of Republic who continue their employment after the
Closing Date (the “Republic Employees”) will be entitled to participate as newly
hired employees in the employee benefit plans and programs maintained for
employees of Trustmark on the Closing Date, in accordance with the respective
terms of such plans and programs, and Trustmark shall take all actions necessary
or appropriate to facilitate coverage of the Republic Employees in such plans
and programs from and after the Closing Date, subject to the
following:
(a) Each
Republic Employee will be entitled to credit for prior service with Republic
for
all purposes under the employee benefit plans and other employee benefit plans
and programs (other than stock option plans), sponsored by Trustmark to the
extent Republic sponsored a similar type of plan in which the Republic Employees
participated immediately prior to the Closing Date. Any eligibility waiting
period and pre-existing condition exclusion applicable to such plans and
programs shall be waived with respect to each Republic Employee and their
eligible dependents. For purposes of determining Republic Employees benefit
for
the calendar year in which the Merger occurs under Trustmark’s vacation program,
any vacation taken by the Republic Employees immediately preceding the Closing
Date for the calendar year in which the Merger occurs will be deducted from
the
total Trustmark vacation benefit available to such Republic Employees for such
calendar year. Trustmark further agrees to credit the Republic Employees and
their eligible dependents for the year during which coverage under Trustmark’s
group health plan begins, with any deductibles already incurred during such
year, under Republic’s group health plan.
(b) The
Republic Employees shall be entitled to credit for past service with Republic
for the purpose of satisfying any eligibility or vesting periods applicable
to
Trustmark’s employee benefit plans which are subject to Sections 401(a) and
501(a) of the Code (including, without limitation, Trustmark’s 401(k) Profit
Sharing Plan).
(c) Republic
shall be entitled to accrue on its balance sheet for employee bonuses for
performance in the 2006 calendar year in which the Merger occurs. The amount
accrued shall be consistent with Republic’s past practices and in the normal
course of business. The accrued bonuses shall be payable in accordance with
Trustmark’s incentive compensation plan to eligible employees on March 15, 2007,
provided the eligible employee is employed by Trustmark on March 1,
2007.
Section
5.4. Regulatory
Approvals. Trustmark
will file all necessary regulatory documents, notices and applications not
later
than the 30th day after the execution of this Agreement and will provide
Republic with a copy of the non-confidential portions of notices, applications,
statements or correspondence submitted to or received from regulatory
authorities in connection with the Merger.
Section
5.5. NASDAQ
Listing. Trustmark
will file all documents required to have the shares of Trustmark Common Stock
to
be issued pursuant to the Agreement included for quotation on NASDAQ and use
its
best efforts to effect said listing.
-30-
Section
5.6. Rule
144 Compliance. For
a period of not less than two (2) years after the date hereof (or such shorter
period of time as may be applicable for affiliates of Republic within the
meaning of Rule 144 to sell shares of Trustmark Common Stock in accordance
with
Rule 145 of the Securities Act), Trustmark shall use its best efforts to file
in
a timely manner all reports with the SEC required to be filed by it pursuant
to
Section 13 and Section 15(d) of the Exchange Act.
Section
5.7. Indemnification;
Insurance.
(a) For
a
period of four (4) years from and after the Effective Time, Trustmark (the
“Indemnifying Party”) shall indemnify and hold harmless each present and former
director, officer and employee of Republic determined as of the Effective Time
(the “Indemnified Parties”) against any costs or expenses (including reasonable
attorneys’ fees), judgments, fines, losses, claims, damages or liabilities
(collectively, “Costs”) incurred in connection with any claim, action, suit,
proceeding or investigation whether civil or criminal, administrative or
investigative, arising out of matters existing or occurring at or prior to
the
Effective Time, whether asserted or claimed prior to, at or after the Effective
Time to the fullest extent to which such Indemnified Parties were entitled
under
Republic’s Articles of Association, Bylaws and applicable laws.
(b) Any
Indemnified Party wishing to claim indemnification under this section, upon
learning of any such claim, action, suit, proceeding or investigation, shall
promptly notify the Indemnifying Party, but the failure to so notify shall
not
relieve the Indemnifying Party of any liability it may have to such Indemnified
Party if such failure does not materially prejudice the Indemnifying Party.
In
the event of any such claim, action, suit, proceeding or investigation (whether
arising before or after the Effective Time), (i) the Indemnifying Party shall
have the right to assume the defense thereof and the Indemnifying Party shall
not be liable to such Indemnified Parties for any legal expenses of other
counsel or any other expenses subsequently incurred by such Indemnified Parties
in connection with the defense thereof, except that if the Indemnifying Party
elects not to assume such defense or counsel for the Indemnified Party and
the
Indemnified Parties, the Indemnified Parties may retain counsel which is
reasonably satisfactory to the Indemnifying Party, and the Indemnifying Party
shall pay, promptly as statements therefor are received, the reasonable fees
and
expenses of such counsel for the Indemnified Parties (which may not exceed
one
firm in any jurisdiction unless the use of one counsel for such Indemnified
Parties would present such counsel with a conflict of interest), (ii) the
Indemnified Parties will cooperate in the defense of any such matter, and (iii)
the Indemnifying Party shall not be liable for any settlement effected without
its prior written consent.
(c) Trustmark
shall use its commercially reasonable efforts to maintain its existing policy
of
directors and officers liability insurance (or comparable coverage) for a period
of not less than four (4) years after the Effective Time; which policy shall
be
amended, however, to include the directors and officers of Republic currently
covered under the policy held by Republic, and which shall be a “claims made”
policy providing coverage for (among other things) acts or omissions occurring
prior to the Effective Time.
-31-
Section
5.8. Supplemental
Indenture. Trustmark
agrees that at or prior to the Effective Time it will enter into a supplemental
indenture to the Indenture dated December 19, 2002, assuming the
obligations and performance of the covenants of Republic under the
Indenture.
Section
5.9. Trustmark
National Bank Director. Trustmark
agrees that at or prior to the Effective Time it will elect X. X. Xxxxx to
the
Board of Directors of Trustmark National Bank, such election to be effective
as
of the Effective Time.
VI. MUTUAL
COVENANTS OF TRUSTMARK
AND
REPUBLIC
Section
6.1. Notification;
Updated Disclosure Schedules. Republic
shall give prompt notice to Trustmark, and Trustmark shall give prompt notice
to
Republic, of (a) any representation or warranty made by it in this
Agreement becoming untrue or inaccurate in any respect, including, without
limitation, as a result of any change in a Schedule, or (b) the failure by
it to comply with or satisfy in any material respect any covenant, condition
or
agreement to be complied with or satisfied by it under this Agreement; provided,
however, that no such notification shall affect the representations, warranties,
covenants or agreements of the parties or the conditions to the obligations
of
the parties under this Agreement.
Section
6.2. Confidentiality. Neither
Trustmark nor Republic will, directly or indirectly, before or after the
consummation or termination of this Agreement, disclose any confidential
information, whether written or oral (“Subject Information”) acquired from the
other party to any person, firm, corporation, association or other entity for
any reason or purpose whatsoever, other than in connection with the regulatory
notice and application process or, after termination of this Agreement pursuant
to Section 8.1 hereof, use such Subject Information for its own purposes or
for the benefit of any person, firm, corporation, association, or other entity
under any circumstances. The term “Subject Information” does not include any
information that (a) at the time of disclosure or thereafter is generally
available to and known to the public, other than by a breach of this Agreement
by the disclosing party, (b) was available to the disclosing party on a
nonconfidential basis from a source other than the nondisclosing party,
(c) was independently acquired or developed without violating any
obligations of this Agreement, or (d) is required to be disclosed under
applicable law or legal process, provided, however, the nondisclosing party
must
give prompt notice to the disclosing party of the requirement and cooperate
with
the disclosing party in any effort to oppose such disclosure
requirement.
Section
6.3. Publicity. Except
as otherwise required by applicable law or in connection with the regulatory
application process, as long as this Agreement is in effect, neither Trustmark
nor Republic shall, nor shall they permit any of their officers, directors
or
representatives to, issue or cause the publication of any press release or
public announcement with respect to, or otherwise make any public announcement
concerning, the transactions contemplated by this Agreement without the consent
of the other party, which consent shall not be unreasonably withheld or
delayed.
-32-
VII. CLOSING
Section
7.1. Closing. Subject
to the other provisions of this Article VII, on a mutually acceptable date
(“Closing Date”) as soon as practicable within a thirty (30) day period
commencing with the latest of the following dates:
(a) the
receipt of Republic shareholder approval and the last approval from any
requisite regulatory or supervisory authority and the expiration of any
statutory or regulatory waiting period which is necessary to effect the Merger;
or
(b) if
the
transactions contemplated by this Agreement are being contested in any legal
proceeding and Trustmark or Republic, pursuant to Section 11.1 herein, have
elected to contest the same, then the date that such proceeding has been brought
to a conclusion favorable, in the judgment of each of Trustmark and Republic,
to
the consummation of the transactions contemplated herein, or such prior date
as
each of Trustmark and Republic shall elect whether or not such proceeding has
been brought to a conclusion.
A
meeting
(“Closing”) will take place at which the parties to this Agreement will exchange
certificates, opinions, letters and other documents in order to determine
whether any condition exists which would permit the parties hereto to terminate
this Agreement. If no such condition then exists or if no party elects to
exercise any right it may have to terminate this Agreement, then and thereupon
the appropriate parties shall execute such documents and instruments as may
be
necessary or appropriate to effect the transactions contemplated by this
Agreement.
The
Closing shall take place at the offices of Trustmark in Jackson, Mississippi,
or
at such other place to which the parties hereto may mutually agree.
Section
7.2. Effective
Time. Subject
to the terms and upon satisfaction of all requirements of law and the conditions
specified in this Agreement including, among other conditions, the receipt
of
any requisite approvals of the shareholders of Republic and the regulatory
approvals of the Federal Reserve Board, FDIC, OCC and any other federal or
state
regulatory agency whose approval must be received in order to consummate the
Merger, the Merger shall become effective, and the effective time of the Merger
shall occur, at the date and time specified in the certificates approving the
Merger to be issued by the Mississippi Secretary of State and the Texas
Secretary of State (“Effective Time”).
VIII. TERMINATION
Section
8.1. Termination.
(a) This
Agreement may be terminated by action of the Board of Directors of Trustmark
or
Republic at any time prior to the Effective Time if:
(i)
any
court
of competent jurisdiction in the United States or other United States (federal
or state) governmental body shall have issued an order, decree or ruling or
taken any other action restraining, enjoining or otherwise prohibiting the
Merger and such order, decree, ruling or other action shall have been final
and
non-appealable;
-33-
(ii) any
of
the transactions contemplated by this Agreement are disapproved by any
regulatory authority or other person whose approval is required to consummate
any of such transactions; or
(iii) the
Merger shall not have become effective on or before the one hundred and fiftieth
day following the date of this Agreement, or such later date as shall have
been
approved in writing by the Boards of Directors of Trustmark and Republic;
provided, however, that the right to terminate under this
Section 8.1(a)(iii) shall not be available to any party whose failure to
fulfill any material obligation under this Agreement has been the cause of,
or
has resulted in, the failure of the Merger to become effective on or before
such
date.
(b) This
Agreement may be terminated at any time prior to the Closing by the Board of
Directors of Republic if (i) Trustmark shall fail to comply in any material
respect with any of its covenants or agreements contained in this Agreement,
or
if any of the representations or warranties of Trustmark contained herein shall
be inaccurate in any material respect, or (ii) if the conditions set forth
in
Article X have not been met or waived by Republic. In the event the Board of
Directors of Republic desires to terminate this Agreement because of an alleged
breach or inaccuracy or change as provided in (i) above, such Board of
Directors must notify Trustmark in writing of its intent to terminate stating
the reason therefor. Trustmark shall have fifteen (15) days from the
receipt of such notice to cure the alleged breach or inaccuracy, subject to
the
approval of Republic (which approval shall not be unreasonably
withheld).
(c) This
Agreement may be terminated at any time prior to the Closing by action of the
Board of Directors of Trustmark if (i) Republic shall fail to comply in any
material respect with any of its covenants or agreements contained in this
Agreement, or if any of the representations or warranties of Republic contained
herein shall be inaccurate in any material respect, (ii) if the conditions
set
forth in Article IX have not been met or waived by Trustmark, or (iii) the
Board of Directors of Trustmark reasonably concludes, after consulting with
counsel, that Trustmark will be unable to obtain any regulatory approval
required in order to consummate the Merger or any such approval is accompanied
by terms or conditions which materially and adversely impact the financial
consequences of the Merger to Trustmark. In the event the Board of Directors
of
Trustmark desires to terminate this Agreement because of an alleged breach
or
inaccuracy or change as provided in (i) above, the Board of Directors must
notify Republic in writing of its intent to terminate stating the cause
therefor. Republic shall have fifteen (15) days from the receipt of such
notice to cure the alleged breach or inaccuracy, subject to the approval of
Trustmark (which approval shall not be unreasonably withheld).
(d) This
Agreement may be terminated at any time prior to the Closing with the mutual
written consent of Trustmark and Republic and the approval of such action by
their respective Boards of Directors.
(e) This
Agreement may be terminated at any time prior to the Closing by the Board of
Directors of Republic, if prior to the Effective Time, Republic shall have
received a bona fide Acquisition Proposal (as defined in Section 8.3(c)) and
Republic’s Board of Directors determines in its good faith judgment and in the
exercise of its fiduciary duties, based as to legal matters on the advice of
independent legal counsel and as to financial matters on the written advice
of
Xxxxx, Xxxxxxxx & Xxxxx, Inc. or an investment banking firm of national
reputation, that such alternative Acquisition Proposal (if consummated pursuant
to its terms) is a Superior Proposal (as defined in Section 8.3(d)), and that
the failure to terminate this Agreement and accept such Superior Proposal would
be inconsistent with the proper exercise of such fiduciary duties; provided,
however, that termination under this clause (e) shall not be deemed effective
until payment of the Termination Fee required by Section 8.3.
-34-
(f)
This
Agreement may be terminated at any time prior to the Closing by the Board of
Directors of Trustmark if Republic’s Board of Directors shall have
(i) resolved to accept an Acquisition Proposal, or (ii) withdrawn or
modified, in any manner that is adverse to Trustmark, its recommendation or
approval of this Agreement or the Merger or recommended to Republic shareholders
acceptance or approval of any alternative Acquisition Proposal, or shall have
resolved to do the foregoing.
(g) This
Agreement may be terminated by Republic during the three-day period following
the Determination Date if:
(i)
the
Average Closing Price of Trustmark Common Stock shall be less than $25.988
per
share; and
(ii) (A)
the
number obtained by dividing the Average Closing Price of Trustmark Common Stock
by $31.50 shall be less than (B) the number obtained by dividing the Average
Closing Price of the Trustmark peer group (the “Peer Group”) by the April 12,
2006 closing price of the Peer Group set forth on Exhibit G hereto and
subtracting 0.15 from such quotient,
subject
to the following provisions of this Section 8.1(g). If Republic elects to
exercise its termination right pursuant to the immediately preceding sentence,
it shall give prompt written notice of such election to Trustmark. During the
three (3) day period (the “Decision Period”) commencing with its actual receipt
of such notice, Trustmark may elect to pay, as additional Merger Consideration
to each holder of Republic Stock making a Share Election, additional shares
of
Trustmark Common Stock and/or cash in an amount per share of Republic Stock
equal to the difference between the Average Closing Price of Trustmark Common
Stock and $25.988 per share (the “Gross Up Amount”). The Gross Up Amount shall
be paid (1) in shares of Trustmark Common Stock valued for this purpose at
the
Average Closing Price of Trustmark Common Stock on the Determination Date,
or
(2) cash, as determined in the sole discretion of Trustmark (the “Gross Up
Determination”). Notwithstanding any other provisions of this Agreement,
Trustmark will have the option to change the percentages of cash and Trustmark
Common Stock payable in the Gross Up Determination from those set forth in
Section 1.9, provided that in no event may less than forty-five percent (45%)
of
the Merger Consideration be payable in shares of Trustmark Common Stock
(including any shares issued as Gross Up Amount). All payments of Gross Up
Amounts, if any, shall be made as payments of additional Merger Consideration
as
provided in accordance with Sections 1.5, and 1.12 through 1.15.
If
Trustmark makes the Gross Up Determination within the Decision Period, it shall
give prompt written notice to Republic of such Gross Up Determination and the
Gross Up Amount, whereupon Republic shall have no right to terminate the
Agreement pursuant to this Section 8.1(g) and this Agreement shall remain in
full force and effect in accordance with its terms.
-35-
If,
during the period between the date of this Agreement and the Determination
Date,
shares of Trustmark Common Stock shall be changed into a different number of
shares or shares of a different class by reason of any reclassification,
recapitalization, stock split, or stock dividend with a record date within
said
period, the initial price of $31.50 per share of Trustmark Common Stock shall
be
appropriately adjusted to account for such change for the purposes of this
Section 8.1(g).
“Average
Closing Price” shall mean the average closing bid/asked market price (computed
on the basis of the last trade of the day) of Trustmark Common Stock and the
common stock of the Peer Group as reported on the New York Stock Exchange
(“NYSE”) or NASDAQ, as the case may be, for the five (5) consecutive Trading
Days preceding the three (3) Trading Days prior to the Determination Date.
For
purposes of this Agreement the term “Trading Day” means any day on which the
NYSE and NASDAQ are open for trading. For the purposes of this Agreement the
term “Determination Date” shall mean ten (10) days prior to the Effective
Time.
(h) This
Agreement may be terminated at any time prior to Closing by either Trustmark
or
Republic, if the shareholders of Republic fail to approve the Merger at the
special meeting of shareholders called for such purpose (or any adjournment
thereof).
Section
8.2. Effect
of Termination. In
the event of termination of this Agreement by either Trustmark or Republic
as
provided in Section 8.1 or the abandonment of the Merger without breach by
any party hereto, this Agreement (other than Sections 6.2 and 12.4) shall
become void and have no effect, without any liability on the part of any party
or its directors, officers or shareholders. Nothing contained in this
Section 8.2 shall relieve any party hereto of any liability for a breach of
this Agreement.
Section
8.3. Termination
Fee. To
compensate Trustmark for entering into this Agreement, taking actions to
consummate the transactions contemplated hereunder and incurring the costs
and
expenses related thereto and other losses and expenses, including foregoing
the
pursuit of other opportunities by Trustmark, Republic and Trustmark agree as
follows:
(a) Provided
that Trustmark shall not be in material breach of any covenant or obligation
under this Agreement (which breach has not been cured promptly following receipt
of written notice thereof by Republic specifying in reasonable detail the basis
of such alleged breach), Republic shall pay to Trustmark the sum of $7 million
(the “Termination Fee”) if this Agreement is terminated (i) by Republic
under the provisions of Section 8.1(e), (ii) by either Trustmark or
Republic if at the time of any failure by the shareholders of Republic to
approve and adopt this Agreement and the Merger there shall exist an Acquisition
Proposal with respect to Republic and, within twelve months of the termination
of this Agreement, Republic enters into a definitive agreement with any third
party with respect to any such Acquisition Proposal, or (iii) by Trustmark
under
the provisions of Section 8.1(f). The payment of the Termination Fee shall
be
Trustmark’s sole and exclusive remedy with respect to termination of this
Agreement as set forth in this Section 8.3(a).
-36-
(b) Any
payment required by paragraph (a) of this Section 8.3 shall become payable
within two (2) business days after receipt by the non-terminating party of
written notice of termination of this Agreement; provided, however, that if
such
Termination Fee payment is required pursuant to clause (ii) of
Section 8.3(a), then such payment shall become payable within two
(2) business days after the execution and delivery by Republic of such
definitive agreement.
(c) For
purposes of this Agreement, “Acquisition Proposal” means a written offer or
proposal which contains a fixed price per share or a mathematically
ascertainable formula for calculating a price per share for Republic Stock
regarding any of the following (other than the transactions contemplated by
this
Agreement): (i) any merger, reorganization, consolidation, share exchange,
recapitalization, business combination, liquidation, dissolution, or other
similar transaction involving the sale, lease, exchange, mortgage, pledge,
transfer, or other disposition of, all or substantially all of the assets or
equity securities or deposits of, Republic or any Subsidiary, in a single
transaction or series of related transactions which could reasonably be expected
to impede, interfere with, prevent or materially delay the completion of the
Merger; (ii) any tender offer or exchange offer for all or substantially all
of
the outstanding shares of the capital stock of Republic or the filing of a
registration statement under the Securities Act in connection therewith; or
(iii) any public announcement of a proposal, plan, or intention to do any of
the
foregoing or any agreement to engage in any of the foregoing.
(d) For
purposes of this Agreement, “Superior Proposal” means a bona fide Acquisition
Proposal made by a third person that the Board of Directors of Republic
determines in its good faith judgment to be more favorable to Republic’s
shareholders than the Merger (taking into account, in good faith, the written
opinion, with only customary qualifications, of Republic’s independent financial
advisor that the value of the consideration to Republic’s shareholders provided
for in such proposal exceeds the value of the consideration to Republic’s
shareholders provided for in the Merger) and for which financing, to the extent
required, is then committed or which, in the good faith judgment of the Board
of
Directors of Republic (taking into account, in good faith, the written advice
of
Republic’s independent financial advisor), is reasonably capable of being
obtained by such third person.
IX. CONDITIONS
TO OBLIGATIONS OF TRUSTMARK
The
obligations of Trustmark under this Agreement are subject to the satisfaction,
at or prior to the Closing Date of the following conditions, which may be waived
by Trustmark in its sole discretion:
Section
9.1. Compliance
with Representations and Covenants. The
representations and warranties made by Republic in this Agreement must have
been
true in all material respects when made and shall be true in all material
respects as of the Closing Date with the same force and effect as if such
representations and warranties were made at and as of the Closing Date, and
Republic shall have performed or complied with all covenants and conditions
required by this Agreement to be performed and complied with prior to or at
the
Closing. Trustmark shall have been furnished with a certificate, executed by
an
appropriate representative of Republic and dated as of the Closing Date, to
the
foregoing effect.
-37-
Section
9.2. Absence
of Material Adverse Effect. There
shall have been no change after the date hereof in the assets, properties,
business or financial condition of Republic which have, or which may be foreseen
to have a Material Adverse Effect on the Condition of Republic or the
transactions contemplated hereby; provided,
however,
that a
Material Adverse Effect shall not include a change with respect to, or effect
on, Republic resulting (a) from a change in law, rule, regulation or GAAP,
(b) as a result of entering into this Agreement or complying with this
Agreement, or (c) from any other matter affecting federally-insured
depository institutions generally (including without limitation, their holding
companies), including, without limitation, changes in general economic
conditions and changes in prevailing interest or deposit rates; provided, any
such change does not impact Republic more adversely than other similarly
situated financial institutions.
Section
9.3. Legal
Opinion. Trustmark
shall have received an opinion of Xxxxxxxxx & Xxxxxxxx, LLP, counsel to
Republic, dated as of the Closing Date, addressed to Trustmark and in form
and
substance satisfactory to counsel for Trustmark.
Section
9.4. X.
X.
Xxxxx Employment Agreement. Prior
to the Closing Date, X. X. Xxxxx, Trustmark and Trustmark National Bank shall
have entered into the Employment Agreement in the form attached hereto as
Exhibit F.
Section
9.5. Tax
Opinion. Trustmark
shall have received an opinion of Brunini, Grantham, Grower & Xxxxx, PLLC to
the effect that on the basis of certain facts, representations and opinions
set
forth in such opinion that the Merger will qualify as a reorganization under
Section 368(a) of the Internal Revenue Code. In rendering such opinion, such
counsel may require and rely upon and may incorporate by reference
representations and covenants, including those contained in certificates of
officers and/or directors of Republic, Trustmark and others.
X. CONDITIONS
TO OBLIGATIONS OF REPUBLIC
The
obligations of Republic under this Agreement are subject to the satisfaction,
at
or prior to the Closing Date, of the following conditions, which may be waived
by Republic in its sole discretion:
Section
10.1. Compliance
with Representations and Covenants. The
representations and warranties made by Trustmark in this Agreement must have
been true in all materials respects when made and shall be true in all material
respects as of the Closing Date with the same force and effect as if such
representations and warranties were made at and as of the Closing Date, and
Trustmark shall have performed and complied in all material respects with all
covenants and conditions required by this Agreement to be performed or complied
with by Trustmark prior to or at the Closing. Republic shall be furnished with
a
certificate, executed by appropriate representatives of Trustmark and dated
as
of the Closing Date, to the foregoing effect.
-38-
Section
10.2. Absence
of Material Adverse Effect. There
shall have been no change after the date hereof in the assets, properties,
business or financial condition of Trustmark which has, or which may be foreseen
to have a Material Adverse Effect on the Condition of Trustmark considered
as a
consolidated whole or the transactions contemplated hereby; provided,
however,
that
for purposes of this Section 10.2, a Material Adverse Effect will not
include a change with respect to, or effect on, Trustmark resulting
(a) from a change in law, rule, regulation or GAAP, (b) as a result of
entering into this Agreement or complying with this Agreement, or (c) from
any other matter affecting federally-insured depository institutions generally
(including without limitation, their holding companies), including, without
limitation, changes in general economic conditions and changes in prevailing
interest or deposit rates; provided, any such change does not impact Trustmark
more adversely than other similarly situated financial institutions.
Section
10.3. Legal
Opinion. Republic
shall have received an opinion of Brunini, Grantham, Grower & Xxxxx, PLLC,
counsel to Trustmark, dated as of the Closing Date, addressed to Republic and
in
form and substance satisfactory to counsel for Republic.
Section
10.4. Opinion
of Financial Advisor. Republic
shall have received a written opinion from a financial advisor dated as of
the
date of the Proxy Statement furnished to shareholders of Republic in connection
with the vote on the Merger that the Merger Consideration is fair to the
Republic shareholders from a financial point of view, and that opinion shall
not
have been withdrawn or materially modified prior to Closing.
Section
10.5. Tax
Opinion. Republic
shall have received an opinion of Xxxxxxxxx & Xxxxxxxx, LLP to the effect
that on the basis of certain facts, representations and opinions set forth
in
such opinion that the Merger will qualify as a reorganization under Section
368(a) of the Internal Revenue Code. In rendering such opinion, such counsel
may
require and rely upon and may incorporate by reference representations and
covenants, including those contained in certificates of officers and/or
directors of Republic, Trustmark and others.
XI. CONDITIONS
TO RESPECTIVE OBLIGATIONS OF TRUSTMARK,
AND
REPUBLIC
The
respective obligations of Trustmark and Republic under this Agreement are
subject to the satisfaction of the following conditions which may be waived
by
Trustmark and Republic, respectively, in their sole discretion:
Section
11.1. Government
Approvals. Trustmark
shall have received the approval, or waiver of approval, of the transactions
contemplated by this Agreement from all necessary governmental agencies and
authorities, including the Federal Reserve Board and any other regulatory agency
whose approval must be received in order to consummate the Merger, which
approvals shall not impose any restrictions on the operations of Trustmark
or
the Continuing Corporation which are unacceptable to Trustmark, and such
approvals and the transactions contemplated hereby shall not have been contested
by any federal or state governmental authority or any third party (except
shareholders asserting dissenters’ rights) by formal proceeding. It is
understood that, if any such contest is brought by formal proceeding, Trustmark
or Republic may, but shall not be obligated to, answer and defend such contest
or otherwise pursue the Merger over such objection.
Section
11.2. Shareholder
Approval. The
holders of Republic Common Stock and the holders of Republic Series A Stock,
voting as separate classes, shall each have approved this Agreement and the
transactions contemplated by this Agreement.
-39-
Section
11.3. Registration
of Trustmark Common Stock. The
Registration Statement covering the Trustmark Common Stock to be issued in
the
Merger shall have become effective under the Securities Act and no stop orders
suspending such effectiveness shall be in effect, and no claim, action, suit,
proceeding or investigation by the SEC to suspend the effectiveness of the
Registration Statement shall have been initiated or continuing, or have been
threatened and be unresolved, and all necessary approvals under state securities
laws relating to the issuance or trading of the Trustmark Common Stock to be
issued in the Merger shall have been received.
Section
11.4. Listing
of Trustmark Common Stock. The
shares of Trustmark Common Stock to be delivered to the shareholders of Republic
pursuant to this Agreement shall have been authorized for listing on
NASDAQ.
XII. MISCELLANEOUS
Section
12.1. Definitions. Except
as otherwise provided herein, the capitalized terms set forth below shall have
the following meanings:
(a) “Affiliate”
means any natural person, corporation, general partnership, limited partnership
proprietorship, other business organization, trust, union, association or
governmental authority that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with
the
person specified.
(b) “Material,”
“materially,” or “Material Adverse Effect,” when used in reference to Republic
or its Subsidiaries shall be understood to mean a breach of any representation,
warranty, or covenant contained in this Agreement which, separately or in the
aggregate with any other such breach, does or could result in a cost, loss,
detriment, or obligation in excess of $4,000,000 on a pre-tax basis. Provided,
however, with reference to the representations, warranties, and covenants of
Trustmark and its Subsidiaries contained in this Agreement, material,
materially, or Material Adverse Effect shall have the meaning normally accorded
to such terms considering the relative importance of such representation,
warranty, or covenant in the context of an organization of the type and size
of
Trustmark.
(c) “Subsidiary”
or “Subsidiaries” shall mean, when used with reference to an entity, any
corporation, association or other entity in which 50% of the issued and
outstanding voting securities are owned directly or indirectly by any such
entity, or any partnership, joint venture, limited liability company or other
enterprise in which any entity has, directly or indirectly, any equity
interest.
Section
12.2. Non-Survival
of Representations and Warranties. The
representations, warranties, covenants and agreements of Trustmark and Republic
contained in this Agreement shall terminate at the Closing.
Section
12.3. Amendments. This
Agreement may be amended only by a written instrument signed by Trustmark and
Republic at any time prior to the Effective Time with respect to any of the
terms contained herein; provided, however, that the Merger Consideration to
be
received by the shareholders of Republic pursuant to this Agreement shall not
be
decreased subsequent to the approval of the transactions contemplated by the
Agreement without the further approval by such shareholders.
-40-
Section
12.4. Expenses. Whether
or not the transactions provided for herein are consummated, each party to
this
Agreement will pay its respective expenses incurred in connection with the
preparation and performance of its obligations under this Agreement. Similarly,
each party agrees to indemnify the other parties against any cost, expense
or
liability (including reasonable attorneys’ fees) in respect of any claim made by
any party for a broker’s or finder’s fee in connection with this transaction
other than one based on communications between the party and the claimant
seeking indemnification. Except as disclosed herein, Trustmark and Republic
represent and warrant to each other that neither of them, nor any of their
agents, employees or representatives, has incurred any liability for any
commissions or brokerage fees in connection with this transaction.
Section
12.5. Notices. Except
as explicitly provided herein, any notice given hereunder shall be in writing
and shall be delivered in person or mailed by first class mail, postage prepaid
or sent by facsimile, courier or personal delivery to the parties at the
following addresses unless by such notice a different address shall have been
designated:
If
to
Trustmark:
Trustmark
Corporation
000
X.
Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxxxxx 00000
|
Attention:
|
Xxxxxxx
X. Xxxxxxx
|
With
a
copy to:
Brunini,
Grantham, Grower & Xxxxx, PLLC
000
X.
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxxxxx 00000
|
Attention:
|
Xxxxxxxxx
Xxxx, Xx.
|
If
to
Republic:
Republic
Bancshares of Texas, Inc.
0000
Xxxxxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
|
Attention:
|
X.
X. Xxxxx
|
With
a
copy to:
Bracewell
& Xxxxxxxx LLP
000
Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxx 00000-0000
|
Attention:
|
Xxxxxxx
X. Xxxxxx XX
|
-41-
All
notices sent by mail as provided above shall be deemed delivered three (3)
days after deposit in the mail. All notices sent by courier as provided above
shall be deemed delivered on the date set forth on the courier’s delivery
receipt and all notices sent by facsimile shall be deemed delivered upon
confirmation of receipt. All other notices shall be deemed delivered when
actually received. Any party to this Agreement may change its address for the
giving of notice specified above by giving notice as herein
provided.
Section
12.6. Controlling
Law. All
questions concerning the validity, operation and interpretation of this
Agreement and the performance of the obligations imposed upon the parties
hereunder shall be governed by the laws of the State of Texas and, to the extent
applicable, by the laws of the United States of America.
Section
12.7. Headings. The
headings and titles to the sections of this Agreement are inserted for
convenience only and shall not be deemed a part hereof or affect the
construction or interpretation of any provision hereof.
Section
12.8. Modifications
or Waiver. No
termination, cancellation, modification, amendment, deletion, addition or other
change in this Agreement, or any provision hereof, or waiver of any right or
remedy herein provided, shall be effective for any purpose unless specifically
set forth in a writing signed by the party or parties to be bound thereby.
The
waiver of any right or remedy in respect to any occurrence or event on one
occasion shall not be deemed a waiver of such right or remedy in respect to
such
occurrence or event on any other occasion.
Section
12.9. Severability. Any
provision hereof prohibited by or unlawful or unenforceable under any applicable
law or any jurisdiction shall as to such jurisdiction be ineffective, without
affecting any other provision of this Agreement, or shall be deemed to be
severed or modified to conform with such law, and the remaining provisions
of
this Agreement shall remain in force, provided that the purpose of the Agreement
can be effected. To the fullest extent, however, that the provisions of such
applicable law may be waived, they are hereby waived, to the end that this
Agreement be deemed to be a valid and binding agreement enforceable in
accordance with its terms.
Section
12.10. Assignment. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, but shall not be assigned by any
party without the prior written consent of the other parties.
Section
12.11. Consolidation
of Agreements. All
understandings and agreements heretofore made between the parties hereto are
merged in this Agreement which (together with any agreements executed by the
parties hereto contemporaneously with or subsequent to the execution of this
Agreement) shall be the sole expression of the agreement of the parties
respecting the Merger.
Section
12.12. Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which shall be deemed to constitute one and the
same instrument.
-42-
Section
12.13. Binding
on Successors. Except
as otherwise provided herein, this Agreement shall be binding upon, and shall
inure to the benefit of, the parties and their respective heirs, executors,
trustees, administrators, guardians, successors and assigns.
Section
12.14. Gender. Any
pronoun used herein shall refer to any gender, either masculine, feminine or
neuter, as the context requires.
Section
12.15. Disclosures. Any
disclosure made in any document delivered pursuant to this Agreement or referred
to or described in writing in any section of this Agreement or any schedule
attached hereto shall be deemed to be disclosure for purposes of any section
herein or schedule hereto.
[Signature
Page Follows]
-43-
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the
date first above written.
|
TRUSTMARK
CORPORATION
|
||
|
/s/
Xxxxxxx X. Xxxxxxx
|
||
|
Xxxxxxx
X. Xxxxxxx, Chairman and Chief Executive Officer
|
||
|
ATTEST:
|
||
|
/s/
X. Xxxxxx Xxxxxxx, III
|
||
|
X.
Xxxxxx Xxxxxxx, III, Secretary
|
||
|
REPUBLIC
BANCSHARES OF TEXAS, INC.
|
||
|
/s/
X. X. Xxxxx
|
||
|
X.
X. Xxxxx, Chief Executive Officer
|
||
|
ATTEST:
|
||
|
/s/
R. Xxxx XxXxxxxxx
|
||
|
R.
Xxxx XxXxxxxxx, Secretary
|
[Signature
Page to Agreement and Plan of Reorganization]
-44-
to
Agreement
and Plan of Reorganization
COMPANY
MERGER AGREEMENT BETWEEN
REPUBLIC
BANCSHARES OF TEXAS, INC., A TEXAS CORPORATION,
AND
TRUSTMARK CORPORATION, A MISSISSIPPI CORPORATION
This
Company Merger Agreement (the "Company
Merger Agreement")
is made
and entered into as of the 13th
day of
April, 2006, between Republic Bancshares of Texas, Inc., a Texas corporation
(“Republic”) and Trustmark Corporation, a Mississippi corporation
(“Trustmark”).
Republic
and Trustmark have entered into an Agreement and Plan of Reorganization dated
as
of the date hereof (the “Agreement “) (terms not defined herein shall have the
meaning set forth in the Agreement) setting forth certain representations,
warranties, covenants and conditions relating to the Merger.
Pursuant
to the Texas Business Corporations Act (the “TBCA”) and the Mississippi Business
Corporations Act (the “MBCA”) (the TBCA and MBCA are hereinafter sometimes
collectively referred to as the “Acts”), the merger of Republic with and into
Trustmark, with Trustmark as the surviving corporation shall be effected as
follows:
A. Effective
Time.
The
merger shall become effective (the “Effective Time”) immediately upon filing of
Articles of Merger with the Secretary of State of the States of Mississippi
and
Texas in accordance with the Acts.
B. Surviving
Corporation.
Republic
shall be merged (the "Merger")
with
and into Trustmark. Trustmark shall be the surviving corporation pursuant to
the
provisions of, and with the effects provided in, the Acts.
C. Terms
and Conditions of the Merger.
The
Merger shall be consummated in accordance with the following terms and
conditions:
1.
Merger
Consideration.
As
a
result of and as part of the Merger and subject to the adjustments and
limitations provided for in Sections 2 through 12 of this Company Merger
Agreement, shares of Republic Stock issued and outstanding immediately prior
to
the Effective Time, other than Dissenting Shares (as defined in Section 3 of
this Agreement), shall, by virtue of the Merger and without any action on the
part of the holder thereof, be converted into and represent the right to receive
cash or shares of common stock, no par value, of Trustmark (“Trustmark Common
Stock”) or a combination of both (the “Merger Consideration”), on the basis
described herein.
2.
Republic
Stock Options.
Republic shall take all actions necessary to accelerate vesting of all the
outstanding Republic Stock options outstanding on the date of this Agreement
(which options are listed in Schedule
2.2
to the
Agreement); provided, however, no Republic Stock options that were not vested
as
of February 28, 2006, may become vested until ten (10) days prior to the
Effective Time. Holders of vested stock options who exercise them at least
three
(3) days prior to the Effective Time shall be entitled to payment of the Merger
Consideration in accordance with this Company Merger Agreement. Trustmark shall
not assume, or provide any Merger Consideration for, a stock option that remains
unexercised within three (3) days of the Effective Time, or for any Republic
Stock acquired by exercising a stock option after three (3) days prior to the
Effective Time.
3.
Dissenting
Shares.
Each
share of Republic Stock issued and outstanding immediately prior to the
Effective Time, the holder of which has not voted in favor of the Merger and
who
has delivered a written demand for payment of the fair value of such shares
within the time and in the manner provided in Article 5.12 of the TBCA, is
referred to herein as a “Dissenting Share.” Dissenting Shares shall not be
converted into or represent the right to receive the Merger Consideration
pursuant to Section 1.5 of this Agreement and shall be entitled only to such
rights as are available to such holder pursuant to the applicable provisions
of
the TBCA unless and until such holder shall have failed to perfect or shall
have
effectively withdrawn or lost his right to appraisal and payment under Article
5.12 of the TBCA. If any such holder shall have so failed to perfect or shall
have effectively withdrawn or lost such right, such holder’s Dissenting Shares
shall thereupon be deemed to have been converted into and to have become
exchangeable for, at the Effective Time, the right to receive the Merger
Consideration without any interest thereon.
4.
Election
Procedures and Exchange of Shares.
At least
thirty (30) days prior to the date of the Republic shareholders meeting to
approve the Merger (the “Meeting Date”), Republic shall deliver to Trustmark a
list of Republic’s shareholders which shall include each shareholder’s name,
address and the number of shares of Republic Stock owned. Subject to the
provisions of Sections 1, 2, and 5 through 12 hereof, each holder of shares
of
Republic Stock as of the date thirty (30) days prior to the Meeting Date (the
“Record Date”) and the option holders listed in Schedule
2.2
of the
Agreement shall be given the opportunity to elect, in accordance with the
procedures set forth in Section 6 hereof (the “Election”), to convert their
shares of Republic Stock into either:
a. cash
in
an amount equal to $44.00 per share for all of the shares of Republic Stock
owned by such holder of record as of the Record Date (the “Available Cash
Election”); or
b. shares
of
Trustmark Common Stock in an amount equal to the Exchange Ratio times the number
of shares of Trustmark Common Stock owned by such holder of record as of the
Record Date (the “Share Election”). The Exchange Ratio shall be equal to 1.3968;
or
c. a
combination of cash and Trustmark Common Stock for all of the shares of Republic
Stock owned by such holder of record as of the Record Date (the “Combination
Election”) in the proportions and with respect to the shares specified by such
holder. In the event a Republic shareholder makes a Combination Election, the
amount of cash to be received for each share of Republic Stock converted into
cash shall be computed in accordance with Section 4(a) and the amount of
Trustmark Common Stock to be received for each share of Republic Stock converted
in Trustmark Common Stock shall be computed in accordance with Section
4(b).
2
The
elections made by the option holders shall only be binding on those option
holders (i) if the Merger is approved by the Republic shareholders and (ii)
the
option holder exercises the option for the shares of Republic Stock at least
three (3) days prior to the Effective Time as provided in Section
2.
5.
Limitation
on Elections.
If,
based on the Elections, the total cash payable to holders of Republic Stock
(including cash payable in lieu of fractional shares and cash payable to
dissenters to the Merger) would be greater than forty-nine percent (49%) of
the
total value of the Merger Consideration, or the total Trustmark Common Stock
issued to holders of Republic Stock would be greater than fifty-one percent
(51%) of the total value of the Merger Consideration, Trustmark shall have
the
right to proportionally adjust the cash and Trustmark Common Stock to be issued
to holders of Republic Stock so that the total cash payable to holders of
Republic Stock (including cash payable in lieu of fractional shares and cash
payable to dissenters to the Merger) shall be equal to forty-nine percent (49%)
of the Merger Consideration and the total Trustmark Common Stock to be issued
shall be equal to fifty-one percent (51%) of the Merger Consideration or
3,400,000 shares. For purposes of the calculation contained herein, all
dissenting shareholders shall be deemed to have received cash in an amount
equal
to the amount of the Available Cash Election for such shares.
6.
Form
of Election.
Forms
for making the Election (the "Forms
of
Election"),
shall
be mailed to the option holders and holders of Republic Stock as of the Record
Date as part of the proxy statement (the "Proxy
Statement")
for the
special shareholders'
meeting
of Republic called to consider the Merger. The Forms of Election must be
properly completed and returned to Republic on or before the Meeting Date in
accordance with the instructions applicable thereto. Any holder of shares of
Republic Stock who does not return a properly executed Form of Election on
or
before the Meeting Date shall be deemed to have made a Share Election. If the
Merger is approved, Republic shall furnish Trustmark with the original Forms
of
Election as soon as is practicable following the shareholders'
meeting
of Republic.
7.
Change
in Election; Revocation.
Any
holder of Republic Stock may, at any time, change an Election by submitting
a
revised, subsequently dated Form of Election on or before the Meeting
Date.
8.
Distribution
of Trustmark Common Stock and Cash.
a.
Promptly
following the Effective Time of the Merger, Trustmark shall send to holders
of
Republic Stock of record as of the Closing Date transmittal materials for use
in
exchanging their shares of Republic Stock for the Merger Consideration.
Trustmark shall thereafter promptly pay the Merger Consideration to holders
of
Republic Stock who have properly submitted transmittal materials and surrendered
their share certificates to Trustmark. Unless and until the share certificates
are properly surrendered, a former holder of Republic Stock shall not be
entitled to receive the cash and/or share certificates to which such holder
is
entitled or any dividends payable with respect to such shares. Upon the proper
surrender of such Republic Stock, the former Republic shareholder shall be
issued the Trustmark shares and/or shall be paid the cash and dividends (without
interest) to which such shareholder is entitled.
3
b.
Former
shareholders of Republic who have made a Share Election or Combination Election
shall be entitled to vote after the Effective Time at any meeting of Trustmark’s
shareholders the number of shares of Trustmark Common Stock into which their
shares are converted, after such shareholders of Republic have surrendered
their
certificates in exchange therefor.
c.
After
the
Effective Time, the stock transfer ledger of Republic shall be closed and there
shall be no transfers on the stock transfer books of Republic of the shares
of
Republic Stock which were outstanding immediately prior to such time. If, after
the Effective Time, certificates are presented to Trustmark, they shall be
promptly exchanged as provided in this Section 8.
d.
If
any
certificate representing shares of Trustmark Common Stock is to be issued in
a
name other than that in which the certificate surrendered in exchange therefor
is registered, it shall be a condition of the issuance thereof that the
certificate so surrendered shall be appropriately endorsed (or accompanied
by an
appropriate instrument of transfer) and otherwise in proper form (reasonably
satisfactory to Trustmark) for transfer, and that the person requesting such
exchange shall pay to Trustmark in advance any transfer or other taxes required
by reason of the issuance of a certificate representing shares of Trustmark
Common Stock in any name other than that of the registered holder of the
certificate surrendered, or required for any other reason, or shall establish
to
the satisfaction of the Trustmark that such tax has been paid or not
payable.
e.
Neither
Trustmark, Republic, or any other person shall be liable to any former holder
of
shares of Republic Stock for any Trustmark Common Stock (or dividends or
distributions with respect thereto) or cash properly delivered to a public
official pursuant to applicable abandoned property, escheat or similar
laws.
9.
Fractional
Shares.
No
fractional shares of Trustmark Common Stock shall be issued upon the surrender
for exchange of certificates representing shares of Republic Stock. In lieu
of
any such fractional share, each holder of shares of Republic Stock who would
otherwise be entitled to a fractional share of Trustmark Common Stock will
be
paid cash upon the proper surrender of all the stock certificates representing
shares of Republic Stock held by such holder in the amount equal to the product
of such fraction multiplied by $31.50.
10. Calculations
and Adjustments.
a.
If,
between the date of this Company Merger Agreement and the Effective Time, shares
of Trustmark Common Stock shall be changed into a different number of shares
or
shares of a different class by reason of any reclassification, recapitalization,
stock split, or stock dividend with a record date within said period, the number
of shares of Trustmark Common Stock to be issued and delivered upon the
consummation of the Merger as provided in this Agreement shall be appropriately
and proportionately adjusted so that the number of such shares that will be
issued and delivered as a result of the Merger will equal the number of shares
of Trustmark Common Stock that holders of shares of Republic Stock would have
received had the record date for such reclassification, recapitalization, stock
split, or stock dividend been immediately following the Effective
Time.
4
b.
If,
between the date of this Agreement and the Effective Time, the number of shares
of Republic Stock issued shall be increased due to the purchase of shares by
Republic’s employee stock purchase plan, the Exchange Ratio, the Available Cash
Election share price, the Merger Consideration to be delivered pursuant to
this
Agreement, and any other relevant provision of this Agreement shall be adjusted
to reflect all of the issued and outstanding shares of Republic Stock at the
Effective Time.
11. Lost
or Destroyed Certificates.
Any
person whose certificates representing shares of Republic Stock shall have
been
lost or destroyed may nevertheless obtain the shares of Trustmark Common Stock
and/or cash to which such holder of Republic Stock is entitled as a result
of
the Merger if such holder provides Trustmark with a statement certifying such
loss or destruction and an indemnity satisfactory to Trustmark sufficient to
indemnify Trustmark against any loss or expense that may occur as a result
of
such lost or destroyed certificate being thereafter presented to Trustmark
for
exchange.
12. Ratification
by Shareholders.
This
Agreement shall be submitted to the shareholders of Republic in accordance
with
applicable provisions of law and the respective Articles of Incorporation and
Bylaws of Republic. Republic and Trustmark shall proceed expeditiously and
cooperate fully in the procurement of any other consents and approvals and
the
taking of any other actions in satisfaction of all other requirements prescribed
by law or otherwise necessary for consummation of the Merger on the terms herein
provided, including, without limitation, the preparation and submission of
all
necessary filings, requests for waivers and certificates with the Board of
Governors of the Federal Reserve System and the OCC.
13. Tax
Consequences.
It is
intended by the parties hereto that the Merger shall constitute a reorganization
within the meaning of Section 368(a) of the Code, and the parties hereby adopt
this Company Merger Agreement as a “plan of reorganization” within the meaning
of Sections 1.368-2(g) and 1.368-3(a) of the Treasury Regulations promulgated
thereunder.
The
Republic shareholders receiving cash consideration under this Company Merger
Agreement shall be treated for Federal Income Tax purposes as a taxable event
to
the shareholders of the Republic.
D.
Governance
of the Surviving Corporation.
The
Articles of Incorporation and Bylaws of Trustmark shall be the Articles of
Incorporation and Bylaws of the merged corporations following the Effective
Time
of the Merger, unless and until the same shall be amended in accordance with
the
provisions thereof and the MBCA.
5
E. Board
of Directors and Officers.
The
members of the Board of Directors and the officers of Trustmark shall be the
Board of Directors and officers of the merged corporation until their respective
successors are elected and qualified.
F. Stock
of Surviving Corporation.
The
shares of Trustmark Common Stock outstanding immediately prior to the Effective
Time of the Merger shall remain outstanding.
G. Authorized
Capital.
The
authorized capital stock of Trustmark as the surviving corporation following
the
Effective Time of the Merger shall be 250 million shares of common stock,
no par value, and 20 million shares of preferred stock, no par value, unless
and
until the same shall be changed in accordance with the MBCA.
H. Termination.
Prior to
the Effective Time of the Merger, this Company Merger Agreement may be
terminated upon termination of the Agreement.
[Signature
page follows]
6
IN
WITNESS WHEREOF, the Republic and Trustmark have caused this Company Merger
Agreement to be executed, each by its Chief Executive Officer or Chairman of
the
Board and attested by its President, Secretary, or Assistant Secretary this
the
13th
day of
April, 2006.
|
REPUBLIC
BANCSHARES OF TEXAS, INC.
|
|||||
|
By:
|
|||||
|
X.
X. Xxxxx
|
|||||
|
Chief
Executive Officer
|
|||||
|
Attested:
|
|||||
|
By:
|
|||||
|
R.
Xxxx XxXxxxxxx, Secretary
|
|||||
|
TRUSTMARK
CORPORATION
|
|||||
|
By:
|
|||||
|
Xxxxxxx
X. Xxxxxxx
|
|||||
|
Chairman
and Chief Executive Officer
|
|||||
|
Attested:
|
|||||
|
By:
|
|||||
|
X.
Xxxxxx Xxxxxxx, III, Secretary
|
|||||
7
STATE
OF
TEXAS
COUNTY
OF
XXXXXX
Personally
appeared before me, the undersigned authority in and for the said county and
state, on this ______ day of _____________, 2006, within my jurisdiction, the
within named X. X. Xxxxx and R. Xxxx XxXxxxxxx, who acknowledged that they
are
Chief Executive Officer and Secretary, respectively, of Republic Bancshares
of
Texas, Inc., a Texas corporation, and that for and on behalf of the said
corporation, and as its act and deed they executed the above and foregoing
instrument, after first having been duly authorized by said corporation so
to
do.
|
Notary
Public
|
||
|
My
Commission Expires:
|
||
STATE
OF
MISSISSIPPI
COUNTY
OF
XXXXX
Personally
appeared before me, the undersigned authority in and for the said county and
state, on this ________
day of
______________, 2006, within my jurisdiction, the within named Xxxxxxx X.
Xxxxxxx and X. Xxxxxx Xxxxxxx, III, who acknowledged that they are Chairman
and
Chief Executive Officer and Secretary, respectively, of Trustmark Corporation,
a
Mississippi corporation, and that for and on behalf of the said corporation,
and
as its act and deed they executed the above and foregoing instrument, after
first having been duly authorized by said corporation so to do.
|
Notary
Public
|
||
|
My
Commission Expires:
|
||
8
EXHIBIT
B
to
Agreement
and Plan of Reorganization
BANK
MERGER AGREEMENT
OF
REPUBLIC
NATIONAL BANK, A NATIONAL BANKING ASSOCIATION
WITH
AND INTO
TRUSTMARK
NATIONAL BANK, A NATIONAL BANKING ASSOCIATION
UNDER
THE ARTICLES OF ASSOCIATION OF TRUSTMARK NATIONAL BANK
UNDER
THE TITLE OF TRUSTMARK NATIONAL BANK
As
of
April 13, 2006, Trustmark Corporation and Republic Bancshares of Texas, Inc.
entered into an Agreement and Plan of Reorganization (the “Agreement”). This
Bank Merger Agreement is made and entered into in furtherance of the Agreement
and is between Republic National Bank (hereinafter referred to as “Republic
Bank”), a national banking association organized under the laws of the United
States, being located in Houston, County of Xxxxxx, State of Texas with a
capital of $50,360,930 divided into 1,922,000 shares of common stock, each
of
$1.00 par value, surplus of $26,098,000 and undivided profits, including
capital
reserves, of $23,454,878 and net unrealized holding losses on available for
sale
securities of ($1,113,948) as of March 31, 2006, and Trustmark National Bank
(hereinafter referred to as “Trustmark Bank”), a national banking association
organized under the laws of the United States, being located in Jackson,
County
of Xxxxx, State of Mississippi, with a capital of $13,389,775.00 divided
into
2,677,955 shares of common stock, each of $5.00 par value, surplus of
$361,042,355 and undivided profits, including capital reserves, of $367,623,554
and accumulated other comprehensive losses, net of tax, of ($16,500,493)
as of
March 31, 2006. Republic Bank and Trustmark Bank are each acting pursuant
to a
resolution of its board of directors, adopted by a vote of a majority of
its
directors, pursuant to the authority given by and in accordance with the
provisions of Article 12, Sections 215a and 215a-1 of the United States
Code.
Republic
Bank and Trustmark Bank hereby adopt this Bank Merger Agreement for the purpose
of merging Republic Bank with and into Trustmark Bank.
Section
1.
Republic Bank shall be merged with and into Trustmark Bank under the Charter
of
Trustmark Bank (the "Bank Merger").
Section
2.
The name of the merged association (hereinafter referred to as the
"Association") shall be Trustmark National Bank.
Section
3.
The business of the Association shall be that of a national banking association.
This business shall be conducted by the Association at its main office which
shall be located at Jackson, Mississippi, and at its legally established
branches.
Section
4.
The amount of capital stock of the Association shall be $13,389,775.00 divided
into 2,677,955 shares of common stock, each of a $5.00 par value and at the
time
the Bank Merger shall become effective, the Association shall have a surplus
of
approximately $361,042,355, and undivided profits, including capital reserves,
which when combined with the capital and surplus will be equal to the combined
capital structures of the merging banks as stated in the preamble of this
agreement, adjusted however, for normal earnings and expenses between March
31,
2006, and the effective time of the Bank Merger.
Section
5.
All assets of each of the merging banks, as they exist at the effective time
of
the Bank Merger shall pass to and vest in the Association without any conveyance
or other transfer; and the Association shall be responsible for all of the
liabilities of every kind and description, including liabilities arising
out of
the operation of a trust department, of each of the merging banks existing
as of
the effective time of the Bank Merger.
As
its
contribution to the capital structure of the Association, Republic Bank shall
contribute to the Association acceptable assets having a book value, over
and
above its liability to its creditors, of at least $50,360,930, and having
an
estimated fair value, over and above its liability to its creditors, of at
least
$50,360,930, adjusted, however, for normal earnings and expenses between
March
31, 2006, and the effective time of the Bank Merger, and for allowance of
cash
payments, if any, permitted under this agreement.
As
its
contribution to the capital structure of the Association, Trustmark Bank
shall
contribute acceptable assets having a book value, over and above its liability
of its creditors, of at least $725,555,191 and having an estimated fair value,
over and above its liability to is creditors, of at least $725,555,191,
adjusted, however, for normal earnings and expenses between March 31, 2006,
and
the effective time of the Bank Merger, and for allowance of cash payments,
if
any, permitted under this agreement.
Section
6. At
the effective time of the Bank Merger, Trustmark Corporation shall retain
its
present rights in and to each of the 2,677,955 issued and outstanding shares
of
common stock, $5.00 par value of Trustmark Bank, which are owned by Trustmark
and each of the 1,922,000 issued and outstanding shares of Republic Bank
common
stock, $1.00 par value, shall be canceled and retired.
Section
7.
Republic Bank shall not declare any other cash or other dividends prior to
closing. From the date hereof until the effective time of the Bank Merger,
Trustmark Bank shall be entitled to declare and pay such dividends as may,
from
time to time, be declared by the Board of Directors of Trustmark
Bank.
Section
8.
The present Board of Directors of Trustmark Bank shall continue to serve
as the
Board of Directors of the Association until the next annual meeting of
shareholders or until such time as their successors have been elected and
have
qualified. Effective as of the time the Bank Merger shall become effective,
X.
X. Xxxxx, the current Chief Executive Officer and President of Republic
Bancshares of Texas, Inc., will be elected to the Board of Directors of
Trustmark Bank by its sole shareholder, Trustmark Corporation.
Section
9.
Effective as of the time the Bank Merger shall become effective as specified
in
the Bank Merger approval to be issued by the Comptroller of the Currency,
the
Articles of Association of the merged bank shall read in their entirety as
follows:
FIRST.
The title of this Association shall be "Trustmark National Bank."
SECOND.
The main office of the Association shall be in Jackson, County of Xxxxx,
State
of Mississippi. The general business of the Association shall be conducted
at
its main office and its branches.
THIRD.
The Board of Directors of this Association shall consist of not less than
five
nor more than twenty-five members, the exact number of Directors within such
minimum and maximum limits to be fixed and determined from time to time by
resolution of a majority of the full Board of Directors or by resolution
of the
shareholders at any annual or special meeting thereof. Each Director shall
own
common or preferred stock of the Association or of a company which has control
over the Association within the meaning of 12 U.S.C. § 1841
("The Bank Holding Company Act"), with an aggregate par, fair market or equity
value of not less than $1,000, as of either (i) the date of purchase, (ii)
the
date the person became a director, or (iii) the date of that person's most
recent election to the Board of Directors, whichever is more recent. Any
combination of common or preferred stock of the Association or holding company
may be used. Unless otherwise provided by the laws of the United States,
any
vacancy in the Board of Directors for any reason, including an increase in
the
number thereof, may be filled through appointment by a majority of the remaining
Directors then in office, and any director so appointed shall hold his place
until the next election, and until his successor shall have been elected
and
qualified.
FOURTH.
The annual meeting of the shareholders for the election of Directors and
the
transaction of whatever other business may be brought before said meeting
shall
be held at the main office or such other place as the Board of Directors
may
designate, on the day of each year specified therefor in the Bylaws, but
if no
election is held on that day, it may be held on any subsequent day according
to
the provisions of law; and all elections shall be held according to such
lawful
regulations as may be prescribed by the Board of Directors.
Nominations
for election to the Board of Directors may be made by the Board of Directors
or
by any stockholder of any outstanding class of capital stock of the Association
entitled to vote for election of directors. Nominations, other than those
made
by or on behalf of the existing management of the Association, shall be made
in
writing and shall be delivered or mailed to the Chairman of the Board of
the
Association not less than 14 days nor more than 50 days prior to any meeting
of
stockholders called for the election of directors; provided however, that
if
less than 21 days' notice of the meeting is given to shareholders, such
nominations shall be mailed or delivered to the Chairman of the Board of
the
Association not later than the close of business on the seventh day following
the day on which the notice of the meeting was mailed. Such notification
shall
contain the following information to the extent known to the notifying
shareholder: (a) the name and address of each proposed nominee; (b) the
principal occupation of each proposed nominee; (c) the total number of shares
of
capital stock of the Association that will be voted for each proposed nominee;
(d) the name and residence address of the notifying shareholder; and (e)
the
number of shares of capital stock of the Association owned by the notifying
shareholder. Nominations not made in accordance herewith may, in his discretion,
be disregarded by the chairman of the meeting, and upon his instructions
the
vote tellers may disregard all votes cast for each such
nominee.
FIFTH.
The
authorized amount of capital stock of this Association shall be 2,677,955
shares
of common stock of the par value of Five Dollars ($5.00) each; but said capital
stock may be increased or decreased from time to time, in accordance with
the
provisions of the laws of the United States.
If
the
capital stock is increased by the sale of additional shares thereof, each
shareholder shall be entitled to subscribe for such additional shares in
proportion to the number of shares of said capital stock owned by him at
the
time the increase is authorized by the shareholders unless another time
subsequent to the date of the shareholders' meeting is specified in a resolution
adopted by the shareholders at the time the increase is authorized, except
when
they are (1) issued to effect or to raise the necessary capital to effect
a
merger or consolidation, (2) issued to effect or to raise the necessary capital
to effect an acquisition of assets, (3) issued for consideration other than
cash, (4) issued to satisfy conversion rights, or other rights or options,
or
(5) issued pursuant to any employee stock option or stock purchase plan.
The
Board of Directors shall have the power to prescribe a reasonable period
of time
within which the preemptive rights to subscribe to the new shares of capital
stock must be exercised.
The
Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders.
SIXTH.
The
Board of Directors shall appoint one of its members President of the
Association, who shall be Chairman of the Board, unless the Board appoints
another director to be the Chairman. The Board of Directors shall have the
power
to appoint one or more Vice Presidents, and to appoint a Secretary and such
officers and employees as may be required to transact the business of the
Association.
The
Board
of Directors shall have the power to define the duties of the officers and
employees of the Association; to fix the salaries to be paid to them; to
dismiss
them; to require bonds from them and to fix the penalty thereof; to regulate
the
manner in which any increase of the capital of the Association shall be made;
to
manage the affairs of the Association; to make all Bylaws that it may be
lawful
for them to make; and generally to do and perform all acts that it may be
legal
for a Board of Directors to do and perform.
SEVENTH.
The
Board of Directors shall have the power to change the location of the main
office to any other place within the limits of Jackson, Mississippi, without
the
approval of the shareholders but subject to the approval of the Comptroller
of
the Currency; and shall have the power to establish or change the location
of
any branch or branches of the Association to any other location, without
the
approval of the shareholders but subject to the approval of the Comptroller
of
the Currency.
EIGHTH.
The
corporate existence of this Association shall continue until terminated in
accordance with the laws of the United States.
NINTH.
The
Board of Directors of this Association, or any three or more shareholders
owning, in the aggregate, not less than 25 percent of the stock of this
Association, may call a special meeting of the shareholders at any time.
Unless
otherwise provided by the laws of the United States, a notice of the time,
place, and purpose of every annual or special meeting of the shareholders
shall
be given by First Class Mail, postage prepaid, mailed at least ten days prior
to
the date of such meeting to each shareholder of record at his address as
shown
upon the books of this Association.
TENTH.
Any
person, his heirs, executors, or administrators, may be indemnified or
reimbursed by the Association for reasonable expenses actually incurred in
connection with any action, suit, or proceeding, civil or criminal, to which
he
or they shall be made a party or potential party by reason of his being or
having been a director, or an honorary or advisory director, officer, or
employee of the Association or of any firm, corporation, or organization
which
he served in any such capacity at the request of the Association; provided,
however, that no person shall be so indemnified or reimbursed in relation
to any
matter in such action, suit, or proceeding as to which he shall finally be
adjudged to have been guilty of or liable for negligence or willful misconduct
in the performance of his duties to the Association; and provided further,
that
no person shall be so indemnified or reimbursed in relation to any
administrative proceeding or action instituted by an appropriate bank regulatory
agency which proceeding or action results in a final order assessing civil
money
penalties or requiring affirmative action by an individual or individuals
in the
form of payments to the Association. The foregoing right of indemnification
or
reimbursement shall not be exclusive of other rights to which such person,
his
heirs, executors, or administrators, may be entitled as a matter of law.
The
Association may, upon affirmative vote of a majority of its Board of Directors,
purchase insurance to indemnify its directors, honorary or advisory directors,
officers and employees to the extent that such indemnification is allowed
in
these Articles of Association. Such insurance may, but need not, be for the
benefit of all directors, honorary or advisory directors, officers or
employees.
ELEVENTH.
These
Articles of Association may be amended at any regular or special meeting
of the
shareholders by the affirmative vote of the holders of a majority of the
stock
of this Association, unless the vote of the holders of a greater amount of
stock
is required by law, and in that case by the vote of the holders of such greater
amount.
Section
10.
This Bank Merger Agreement may be terminated in the manner and to the extent
provided in the Agreement.
Section
11.
This
Bank
Merger Agreement shall be ratified and confirmed by the affirmative vote
of
shareholders of each of the merging banks owning at least sixty-seven percent
(67%) of its capital stock outstanding, at a meeting to be held on the call
of
the directors; and the Bank Merger shall become effective at the time specified
in the approval of Bank Merger to be issued by the Comptroller of the Currency
of the United States.
WITNESS,
the signatures and seals of said merging banks this 13th
day of
April, 2006, each hereunto set by its Chief Executive Officer or Chairman
of the
Board and attested by its President, Executive Vice President, Secretary
or
Assistant Secretary pursuant to a resolution of its Board of Directors, acting
by a majority thereof, and witness the signature hereto of the majority of
each
of said Boards of Directors.
|
TRUSTMARK
NATIONAL BANK
|
|||||
|
By:
|
|||||
|
Xxxxxxx
X. Xxxxxxx, Chairman of the Board
|
|||||
|
Attest:
|
|||||
|
By:
|
|||||
|
X.
Xxxxxx Xxxxxxx, III, Secretary
|
|||||
|
(SEAL)
|
|||||
|
Ratified
by the Board of Directors of Trustmark National Bank
|
|||||
|
J.
Xxxxx Xxxxxxx
|
|||||
|
Xxxxxx
X. Xxxxxxxx
|
|||||
|
Xxxxxxxx
X. Xxxxx
|
|||||
|
Xxxx
X. Xxxxxx
|
|||||
|
Xxxxxxx
X. Xxxxxxx, Xx.
|
|||||
|
C.
Xxxxxx Xxxxxxx
|
|||||
|
Xxxxxx
X. Xxxxxxx
|
|||||
|
Xxxxxxx
X. Xxxxxxx
|
|||
|
Xxxxxxx
X. Xxxxxxxx III
|
|||
|
Xxxxxx
X. Host
|
|||
|
Xxxxx
X. Xxxxxxxxx
|
|||
|
Xx.
Xxxxxxx Xxxxx
|
|||
|
Xxxx
X. XxXxxxxxxx
|
|||
|
Xxx
X. Xxxx
|
|||
|
Xxxxxxx
X. Xxxxxxx
|
|||
|
Xxxxxxx
X. Xxxxxxx
|
|||
|
R.
Xxxxxxx Xxxxxxxxxx
|
|||
|
Xxxxx
X. Xxxxxx
|
|||
|
Xxxxx
X. Xxxxxx, Xx.
|
|||
|
Xxxxxxx
X. Xxxxxxxx
|
|||
|
Xxxxx
Xxxx, Xx.
|
|||
|
Xxxxxxx
X. Xxxxx, Xx.
|
|||
|
TRUSTMARK
CORPORATION
|
|||||
|
By:
|
|||||
|
Xxxxxxx
X. Xxxxxxx, Chairman and Chief Executive Officer
|
|||||
|
Attest:
|
|||||
|
By:
|
|||||
|
X.
Xxxxxx Xxxxxxx, III, Secretary
|
|||||
|
(SEAL)
|
|||||
|
REPUBLIC
NATIONAL BANK
|
|||||
|
BY:
|
|||||
|
X.
X. Xxxxx, Chief Executive Officer
|
|||||
|
Attest:
|
|||||
|
By:
|
|||||
|
R.
Xxxx XxXxxxxxx, Secretary
|
|||||
|
(SEAL)
|
|||||
|
Ratified
by the Board of Directors of Republic National Bank
|
|||||
|
X.
X. Xxxxx
|
|||||
|
Xxxxxx
X. Xxxxx
|
|||||
|
Xxxx
X. Xxxxxxxxxxxx
|
|||||
|
Xxxxx
X. Xxxxxxx
|
|||||
|
Xxxxx
X. Xxxx
|
|||||
STATE
OF
MISSISSIPPI
COUNTY
OF
XXXXX
Personally
appeared before me, the undersigned authority in and for the said county
and
state, on this 13th
day of
April, 2006, within my jurisdiction, the within named Xxxxxxx X. Xxxxxxx
and X.
Xxxxxx Xxxxxxx, III, who acknowledged that they are the Chairman of the Board
and Secretary, respectively, of Trustmark National Bank, a national banking
association, and that for and on behalf of the said association, and as its
act
and deed he executed the above and foregoing instrument, after first having
been
duly authorized by said association so to do.
|
Notary
Public
|
||
|
My
Commission expires:
|
||
STATE
OF
TEXAS
COUNTY
OF
XXXXXX
Personally
appeared before me, the undersigned authority in and for the said county
and
state, on this ______ day of ______________, 2006, within my jurisdiction,
the
within named X. X. Xxxxx and R. Xxxx XxXxxxxxx, who acknowledged that they
are
the Chief Executive Officer and Secretary, respectively, of Republic National
Bank, a national banking association, and that for and on behalf of the said
association, and as its act and deed he executed the above and foregoing
instrument, after first having been duly authorized by said association so
to
do.
|
Notary
Public
|
||
|
My
Commission expires:
|
||
EXHIBIT
C
to
Agreement
and Plan of Reorganization
AFFILIATE
AGREEMENT
_______________,
2006
Trustmark
Corporation
P.
O. Xxx
000
Xxxxxxx,
XX 00000
Dear
Ladies and Gentlemen:
I
am a
shareholder of Republic Bancshares of Texas, Inc., a Texas corporation
(“Republic”), and may become a shareholder of Trustmark Corporation, a
Mississippi corporation (“Trustmark”), when Republic merges with and into
Trustmark (the “Merger”) pursuant to an Agreement and Plan of Reorganization
dated as of April 13, 2006 (the “Merger Agreement”), between Trustmark and
Republic. In consideration of the Merger Agreement and the benefits I will
derive therefrom, I hereby enter into this Affiliate Agreement (“Agreement”)
with Trustmark as follows:
1. Affiliate
Status; Accounting and Tax Treatment.
I
understand that I may be considered an “affiliate” of Republic, that Trustmark
intends to account for the Merger as a purchase, and that Trustmark intends
to
treat the Merger as a tax-free reorganization under Section 368 of the Internal
Revenue Code (the “Code”).
2. Covenants
and Warranties.
I
represent, warrant, covenant, and agree that:
(a) I
understand that Trustmark is under no obligation to register the sale, transfer,
or other disposition of shares of common stock of Trustmark (the “Trustmark
Common Stock”) by me or on my behalf under the Securities Act of 1933 (the
“Securities
Act”)
or to
take any other action necessary in order to make compliance with an exemption
from such registration available.
(b) I
understand that stop transfer instructions will be given to
Trustmark's
transfer agent with respect to shares of Trustmark Common Stock issued to
me as
a result of the Merger and that there may be placed on the certificates for
such
shares, or any substitutions therefor, a legend stating in
substance:
“The
shares represented by this certificate were issued in a transaction to which
Rule 145 promulgated under the Securities Act of 1933 applies. The shares
represented by this certificate may be transferred only in accordance with
the
terms of an agreement, dated as of April ___, 2006, between the registered
holder hereof and Trustmark, a copy of which agreement is on file at the
principal offices of Trustmark.”
(c) I
understand that, unless any transfer by me of the Trustmark Common Stock
issued
to
me as a result of the Merger is made in conformity with the provisions of
Rule
145(d) under the Securities Act, Trustmark reserves the right, in its sole
discretion, to place the following legend on the certificates issued to my
transferee:
“The
shares represented by this certificate were received in a transaction to
which
Rule 145 under the Securities Act of 1933 applies. The shares have been acquired
by the holder not with a view to, or for resale in connection with, any
distribution thereof within the meaning of the Securities Act of 1933 and
may
not be offered, sold, pledged, or otherwise transferred except in accordance
with an exemption from the registration requirements of the Securities Act
of
1933.”
(d) It
is
understood and agreed that the legends set forth in paragraphs 2(b) and (c)
above shall be removed by delivery of substitute certificates without such
legends if I shall have delivered to Trustmark: (i) a copy of a “no-action”
letter from the staff of the Securities and Exchange Commission (the “SEC”), or
an opinion of counsel in form and substance reasonably satisfactory to
Trustmark, to the effect that such legend is not required for purposes of
the
Securities Act; or (ii) evidence or representations satisfactory to Trustmark
that the Trustmark Common Stock represented by such certificates is being
or has
been sold in conformity with the provisions of Rule 145(d).
3. Agreement
on Voting.
I
hereby agree that I will vote all shares of capital stock of Republic (the
“Republic Stock”) which I own or control, directly or indirectly, (i) in favor
of the Merger Agreement and the Merger and any other action requested by
Trustmark in furtherance thereof, (ii) against any action or agreement that
would result in a breach of any covenant, representation, or warranty or
any
other obligation or agreement of Republic contained in the Merger Agreement,
or
any of my other obligations or agreements under this Agreement and (iii)
against
any Acquisition Proposal (as that term is defined in Section 8.3 of the Merger
Agreement) or any other action, agreement, or transaction that is intended,
or
could reasonably be expected, to materially impede, interfere or be inconsistent
with, delay, postpone, discourage, or materially or adversely affect the
consummation of the Merger or this Agreement. Furthermore, I understand and
agree that the voting of my shares of Republic Stock in favor of the Merger
will
waive any right I may have to dissent from the Merger pursuant to the provisions
of Article 5.12 of the Texas Business Corporation Act, as amended.
4. No
Transfers.
Prior
to the special shareholders meeting of Republic to approve the Merger, I
agree
not to, directly or indirectly, sell, transfer, pledge, assign or otherwise
dispose of, or enter into any contract, option, commitment or other arrangement
or understanding with respect to the sale, transfer, pledge, assignment or
other
disposition of, any of my shares of Republic Stock. In the case of any transfer
by operation of law, this Agreement shall be binding upon and inure to the
transferee(s). Any transfer or other disposition in violation of the terms
of
this Section 4 shall be null and void.
2
5. Other
Persons.
I
recognize and agree that the foregoing provisions of Sections 2, 3, and 4
also
apply to: (i) my spouse; (ii) any relative of me or my spouse who shares
my
home; (iii) any trust or estate in which I, my spouse, or any such relative
collectively own at least a ten percent (10%) beneficial interest or of which
any of the foregoing serves as trustee, executor, or in any similar capacity;
and (iv) any corporation or other organization in which I, my spouse, and
any
such relative collectively own at least ten percent (10%) of any class of
equity
securities or of the equity interest.
6. Filing
of Reports by Trustmark Corporation.
Trustmark shall, for a period of two years after the consummation of the
Merger,
use its best efforts to file on a timely basis all reports with the SEC required
to be filed by it pursuant to Section 13 of the Securities Exchange Act of
1934,
as amended, so that the public information provisions of Rule 145(d) promulgated
by the SEC as the same are presently in effect will be available to the
undersigned in the event the undersigned desires to transfer any shares of
Trustmark Common Stock issued to the undersigned pursuant to the
Merger.
7. Miscellaneous.
(a) Any
notice required to be sent to any party hereunder shall be sent by registered
or
certified mail, return receipt requested, using the addresses set forth herein
or in the Merger Agreement or such other addresses as shall be furnished
in
writing by the parties.
(b) This
Agreement shall be governed by the laws of the State of Texas.
8. Understanding
of Requirements.
I have
carefully read this Agreement and the Merger Agreement and discussed their
requirements and other applicable limitations upon my ability to sell, transfer,
or otherwise dispose of Trustmark Common Stock after the Merger, to the extent
I
felt necessary, with my counsel or counsel for Republic.
3
This
Agreement is executed as of this the ____ day of ____________,
2006.
|
Very
truly yours,
|
||||
|
Signature
|
||||
|
Print
Name
|
||||
|
Address
|
||||
|
Accepted
this _____ day of ________________, 2006.
|
||||
|
Trustmark
Corporation
|
||||
|
By:
|
||||
|
|
||||
|
Its:
|
||||
4
EXHIBIT
D
to
Agreement
and Plan of Reorganization
AMENDMENT
TO
EMPLOYMENT
AGREEMENT
The
Employment Agreement effective as of the 7th of February, 2006 (the "Agreement")
by and among Republic National Bank, a national banking association (the
"Bank"), and Republic Bancshares of Texas, Inc., a Texas corporation (the
"Company") (hereinafter jointly referred to as the "Employer"), and X. X.
Xxxxx
(the "Executive"), an individual who resides in Houston, Texas, is hereby
amended, pursuant to Paragraph 15 of the Agreement, to clarify the original
intent of the Agreement, as follows:
Paragraph
8(a) of the Agreement is amended by adding the following sentence at the
end of
that paragraph:
“The
lump-sum payment under this Paragraph 8(a) shall reduce, dollar-for-dollar,
any
separation payment that otherwise would be owed to the Executive pursuant
to
Paragraph 5(a) of the Agreement if the Executive was terminated by the Employer
(or its successor) without Cause, or if the Executive terminated this Agreement
for Good Reason, following a Change in Control.”
Because
this amendment clarifies the original intent of the parties to the Agreement,
the amendment shall be effective as of February 7, 2006, as if it had been
included in the original Agreement. All other provisions of the Agreement
shall
remain in full force and effect on and after the date of this
amendment.
IN
WITNESS WHEREOF, the parties have caused this amendment to be duly executed
as
of ___________________, 2006. The Executive hereby acknowledges receipt of
a
copy of this amendment duly signed by the Employer.
|
EXECUTIVE:
|
EMPLOYER:
|
|||
|
Republic
National Bank
|
||||
|
By:
|
||||
|
X.
X. Xxxxx
|
Name:
|
|||
|
Title:
|
||||
|
Republic
Bancshares of Texas, Inc.
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
EXHIBIT
E
to
Agreement
and Plan of Reorganization
AMENDMENT
TO
EMPLOYMENT
AGREEMENT
The
Employment Agreement effective as of the 7th of February, 2006 (the "Agreement")
by and among Republic National Bank, a national banking association (the
"Bank"), and Republic Bancshares of Texas, Inc., a Texas corporation (the
"Company") (hereinafter jointly referred to as the "Employer"), and R. Xxxx
XxXxxxxxx (the "Executive"), an individual who resides in Houston, Texas, is
hereby amended, pursuant to Paragraph 15 of the Agreement, to clarify the
original intent of the Agreement, as follows:
Paragraph
8(a) of the Agreement is amended by adding the following sentence at the end
of
that paragraph:
“The
lump-sum payment under this Paragraph 8(a) shall reduce, dollar-for-dollar,
any
separation payment that otherwise would be owed to the Executive pursuant to
Paragraph 5(a) of the Agreement if the Executive was terminated by the Employer
(or its successor) without Cause, or if the Executive terminated this Agreement
for Good Reason, following a Change in Control.”
Because
this amendment clarifies the original intent of the parties to the Agreement,
the amendment shall be effective as of February 7, 2006, as if it had been
included in the original Agreement. All other provisions of the Agreement shall
remain in full force and effect on and after the date of this
amendment.
IN
WITNESS WHEREOF, the parties have caused this amendment to be duly executed
as
of ___________________, 2006. The Executive hereby acknowledges receipt of
a
copy of this amendment duly signed by the Employer.
|
EXECUTIVE:
|
EMPLOYER:
|
|||
|
Republic
National Bank
|
||||
|
By:
|
||||
|
R.
Xxxx XxXxxxxxx
|
Name:
|
|||
|
Title:
|
||||
|
Republic
Bancshares of Texas, Inc.
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
EXHIBIT
F
To
Agreement
and Plan of Reorganization
EMPLOYMENT
AGREEMENT
This
Employment Agreement (this "Agreement") is effective as of _____________,
2006
(the "Effective Date"), by and among Trustmark National Bank, a national
banking
association (the “Bank”) and Trustmark Corporation, a Mississippi corporation
(the “Company”) (hereinafter jointly referred to as the "Employer"), and X. X.
Xxxxx (the "Executive"), an individual who resides in Houston, Texas.
W
I T N E
S S E T H:
In
consideration of the mutual covenants and agreements contained in this
Agreement, the parties agree as follows:
1. Employment.
Employer
agrees to employ the Executive as Chairman and Chief Executive Officer of
Trustmark Texas. The Executive shall have responsibilities, duties and authority
customarily accorded to and expected of an executive holding such position.
The
Executive agrees to devote full time, attention and efforts to promote and
further the business of the Bank. The Executive shall report to the Chief
Executive Officer of the Bank, and shall perform his duties under this Agreement
in accordance with such reasonable standards established from time to time
by
such Chief Executive Officer.
2. Compensation
and Benefits.
For all
services rendered by the Executive to the Employer and its subsidiaries,
the
Employer shall compensate the Executive as follows:
(a) Base
Salary. Commencing
on the Effective Date, the Employer agrees to pay the Executive a base salary
of
not less than $350,000 per annum, less applicable statutory deductions (the
"Base Salary"), payable on a regular basis in accordance with the Employer's
standard payroll procedures, but not less frequently than monthly. The amount
of
Base Salary shall be reviewed by the Chief Executive Officer of the Bank
no less
often than annually and may be increased from time to time by such amounts
as
the Human Resources Committee of the Employer at its discretion may
decide.
(b) Bonus
Program.
Executive shall be eligible for
any
bonus that may be associated with similarly situated officers, including
but not
limited to an annual bonus of up to 75% of his annual salary, based upon
performance objectives for Trustmark Texas as jointly established by the
Executive and the Chief Executive Officer of the Bank and the
Executive’s
performance evaluated against those performance
objectives. It is contemplated that based on the Employer’s annual bonus
program, the target bonus will be 50% of the Executive’s base salary. The
Executive will have the opportunity by exceeding budget objectives by 10%
to
receive an annual bonus up to 75% of his annual salary. The Employer’s Executive
Compensation Plan includes a threshold whereby the Executive receives 37.5%
of
the Executive’s annual salary if 90% of the budget objectives are met. These
percentages are prorated based upon actual results achieved between 75% and
150%
of the target, which is 50% of the Executive’s base salary. There is no bonus
under the Employer’s annual bonus program if 90% of the budget objectives are
not met by the Executive.
(c) Expenses.
During
the term of Executive's employment, Executive shall be reimbursed for any
and
all reasonable costs and expenses incurred by Executive in performance of
his
services and duties as specified in this Agreement or incurred by Executive
on
behalf of, or in furtherance of the business of, the Employer, including,
but
not limited to, professional dues and fees, and business expenses incurred
in
connection with travel and entertainment; provided, however, that Executive
shall submit to the Employer satisfactory supporting receipts and information
with respect to such reasonable costs and expenses.
(d) Tax
Planning.
During
the term of Executive's employment, Executive shall be reimbursed for reasonable
costs and expenses incurred by Executive to obtain tax and estate planning
services, up to a maximum reimbursement of $25,000; provided, however, that
Executive shall submit to the Employer satisfactory supporting receipts and
information with respect to such reasonable costs and expenses.
(e) Other
Benefits.
During
the term of Executive's employment, he shall be entitled (i) to receive
health insurance benefits with the same coverages and deductibles as applicable
to other senior executive officers; (ii) to participate in the Employer's
other
benefit plans such as 401k plans, deferred compensation plan, disability
plans,
vacation and sick leave, and other benefits; (iii) to continued use of the
Employer-owned automobile provided for Executive’s use immediately before the
Effective Date, or to an allowance of up to $1,000 per month to lease a
comparable automobile for Executive’s use, provided the Executive operates and
utilizes the automobile as the Executive’s principal business vehicle; and (iv)
to membership, including the Employer’s payment of all fees and dues, at
Champions Golf Club or another comparable club, the membership of which will
continue until the Executive reaches the age of 65.
3. Term
of the Agreement.
The term
of this Agreement shall begin on the Effective Date and continue for three
(3)
years (the "Term") unless terminated sooner as herein provided, and such
Term
shall be automatically renewed for a period of three (3) years on each
anniversary of the Effective Date (except for any anniversary occurring after
termination of this Agreement) on the same terms and conditions contained
herein
in effect as of the time of renewal, unless either party delivers written
notice
to the other of its intention not to renew this Agreement at least sixty
(60)
days prior to any such anniversary date.
4. Termination
and Rights upon Certain Terminations.
This
Agreement and the Executive's employment may be terminated in any one of
the
following ways:
(a) Termination
as a Result of the Executive's Death.
The
death of the Executive shall immediately terminate this Agreement, and the
Executive's estate shall be entitled to a payment of 50% of Executive's Base
Salary, less applicable statutory deductions, for the remainder of the three
(3)
year Term during which Executive's employment terminates, which payment shall
be
made in one lump sum on the date of termination of Executive's employment
or as
soon as administratively feasible thereafter, but in no event after the later
of
(i) the last day of the calendar year in which Executive's employment
terminates, or (ii) the fifteenth (15th)
day of
the third calendar month following the date of termination of Executive's
employment, and any other benefits under insurance programs and other employee
plans in accordance with the terms of such arrangements.
-2-
(b) Termination
on Account of Disability.
If, as
a result of incapacity due to physical or mental illness or injury, the
Executive shall have been absent from his full-time duties hereunder for
six (6)
consecutive months and the Employer has in effect disability insurance providing
coverage to Executive at least as beneficial to the Executive as is currently
provided to the Executive by the Employer, the Employer may terminate the
Executive's employment provided Executive is unable to resume his full-time
duties with reasonable accommodation, and the Executive shall be entitled
to
payment of 50% of Executive's Base Salary, less applicable statutory deductions,
for the remainder of the three (3) year Term during which Executive's employment
terminates, which payment shall be made in one lump sum on the date of
termination of Executive's employment or as soon as administratively feasible
thereafter, but in no event after the later of (i) the last day of the calendar
year in which Executive's employment terminates, or (ii) the fifteenth
(15th)
day of
the third calendar month following the date of termination of Executive's
employment, and any other benefits under insurance programs and other employee
plans in accordance with the terms of such arrangements.
(c) Termination
by the Employer for Cause.
The
Employer may terminate this Agreement for "Cause," which shall mean:
(i) the Executive's acts of dishonesty; (ii) the Executive's acts of
willful misconduct; (iii) the Executive's acts that breach his fiduciary
duties to the Employer (or any subsidiary); or (iv) the Executive's acts
which breach his obligations pursuant to this Agreement. Prior to termination
for Cause, the Employer shall (i) provide the Executive with written notice
describing in detail the actions taken by the Executive and the reasons why
Employer believes that such actions constitute Cause, (ii) afford the
Executive with the opportunity to attend a meeting of the entire Board of
Employer at which he may make a presentation challenging the Employer's
determination that Cause exists, which meeting shall not occur until
ten (10) business days after Executive receives the written notice, and
(iii) if, after such meeting, the Employer continues to believe that Cause
exists, give Executive thirty (30) days to cure the basis for the
Employer's determination that Cause exists. If the basis for the Employer's
determination that Cause exists has not been cured within such thirty (30)
day period, or if not practicable to be cured within thirty (30) days, the
Executive has not made reasonable efforts to cure, then Employer may terminate
this Agreement for Cause by giving written notice of termination to the
Executive, specifically stating the grounds upon which the termination is
based.
In the event the Executive's employment is terminated by the Employer for
Cause,
the Executive shall be entitled to a lump sum cash amount representing all
compensation and benefits earned by the Executive and unpaid as of the date
of
termination, less applicable statutory deductions, to be paid within six
(6)
days of termination.
-3-
(d) Termination
without Cause by Employer or Termination by Executive for Good Reason Following
a Change in Control of Company.
At any
time after the commencement of employment, (i) the Employer may without Cause
terminate this Agreement and the Executive's employment, or (ii) Executive
may
terminate this Agreement and Executive’s employment for Good Reason (as defined
in Paragraph 6) following a Change in Control of Company, effective thirty
(30)
days after written notice is provided by the terminating party to the other
party. Upon the Executive's termination pursuant to this subparagraph (d),
Executive shall be entitled to receive payment in the amount of his then
existing base salary for the duration of the Post-Employment Restricted Period
and any other benefits earned by Executive as of the date of termination,
less
applicable statutory deductions. Such payments shall be made in accordance
with
Employer’s usual payroll practices for senior executives.
(e) Resignation
of Executive. Except
for a termination by Executive for Good Reason following a Change in Control
of
Company as set forth in subparagraph (d) above, Executive may voluntarily
terminate the Term and resign from employment with Employer by written notice
to
Employer specifying the effective date of such resignation or termination
and,
in such event the termination shall be treated as a voluntary termination
without Good Reason by Executive. Thereafter, Executive shall be entitled
to
receive payment in the amount of fifty percent (50%) of Executive’s then
existing base salary for the duration of the Post Employment Restricted Period
and any other benefits earned by Executive as of the date of termination,
less
applicable statutory deductions. Such payments shall be made in accordance
with
Employer’s usual payroll practices for senior executives.
(f) Non-renewal
of Term.
In the
event of either party’s non-renewal of this Agreement at the end of the Term,
Executive shall be entitled to a lump sum cash amount representing all
compensation and benefits earned by Executive and unpaid as of the date of
termination, less applicable statutory deductions, to be paid within fourteen
(14) days of termination.
5. Termination
Benefits.
If
Executive's employment is terminated at any time, in addition to the termination
benefits described above in Paragraph 4,
Executive shall be entitled to the post-termination benefits described below,
provided that Executive (or his personal representative, in the case of the
Executive’s death) has executed a release of claims in substantially the form
attached to this Agreement and the release has become effective. For
purposes of this Paragraph 5
and
Paragraph 7,
the
term "Change in Control" shall mean the Company’s acquisition of Republic
Bankshares of Texas, Inc. and its affiliates ("Republic") on the Effective
Date.
(a) The
Employer shall provide medical, dental and prescription drug insurance coverage
for Executive and his spouse and any dependents, comparable to the coverage
to
which the Executive was entitled under Republic’s plans immediately prior to the
date of the Change in Control, until the death of Executive and his spouse
and,
in the case of dependents, until the dependents are no longer eligible for
dependent coverage. The Employer shall pay all premiums associated with such
coverage;
-4-
(b) Executive
shall be entitled to a
payment
of $200 per month, payable on the first day of each month, which is intended
to
allow Executive to continue participation in all
life
insurance, accident and disability plans, programs or arrangements in which
the
Executive was entitled to participate prior to the date of termination,
until
the
Executive's commencement of full time employment with a new
employer;
(c) Executive
shall be entitled to payment by the Employer of the annual premiums for
Executive's long-term care policy in effect at the time of the Change in
Control
until the end of the premium payment period for such policy; and
(d) Executive
shall be entitled to a payment of $600 per month, payable on the first day
of
each month, which is intended to allow Executive to continue membership at
Champions Golf Club or another comparable club, until the later of (i) the
expiration of the three (3) year Term during which Executive's employment
terminates, or (ii) Executive's attainment of the age of 65.
Notwithstanding
any provision of this Agreement to the contrary, if at the time of Executive's
termination of employment with the Employer, he is a "specified employee"
as
defined in Section 409A of the Internal Revenue Code of 1986, as amended
(the
"Code"), no payment or benefit will be provided under this Section 5 until
the
earliest of (A) the date which is 6 months after the date of Executive's
termination of employment, or (B) the date of Executive's death. The first
sentence of this paragraph shall apply only to the extent required to avoid
Executive's incurrence of any additional tax or interest under Section 409A
of
the Code or any regulations or Treasury guidance promulgated thereunder.
In
addition, if any provision of this Agreement (or of any award of compensation)
would cause Executive to incur any additional tax or interest under Section
409A
of the Code or any regulations or Treasury guidance promulgated thereunder,
the
Employer shall reform such provision; provided that the Employer shall (i)
maintain, to the maximum extent practicable, the original intent of the
applicable provision without violating the provisions of Section 409A of
the
Code and (ii) notify and consult with the Executive regarding such amendments
or
modifications prior to adopting any such change.
6. Good
Reason Defined.
For
purposes of this Agreement, the Executive shall have "Good Reason" to terminate
this Agreement and his employment hereunder if, without the Executive's prior
written consent, (i) the Executive is demoted by means of a reduction in
authority, responsibilities, duties or title to a position of materially
less
stature or importance within the Employer than as described in
Paragraph 1
hereof;
(ii) the Employer breaches this Agreement in any material respect and fails
to
cure such breach within ten (10) days after the Executive delivers written
notice and a written description of such breach to the Employer, which notice
shall specifically refer to this paragraph of this Agreement; (iii) the Employer
materially reduces the Executive's Base Salary or materially reduces his
benefits, or (iv) the Executive is transferred to an office outside of the
greater Houston, Texas metropolitan area.
-5-
7. Certain
Payments upon Change in Control.
As
a
result of the Change in Control (as defined in Paragraph 5,
above),
Executive became entitled to receive a lump sum cash amount equal to $1,500,000,
which shall be paid by Republic on or before the Effective Date. As a result
of
the Change in Control, Executive also became entitled to full rights, title
and
interest in Executive's office artwork, including but not limited to the
painting of the 18th
green at
Champions, as well as Executive's Republic-owned automobile, or an automobile
of
equivalent value; Republic shall deliver title to the artwork and automobile
to
Executive on or before the Effective Date, and shall also pay a lump sum
payment
to Executive equal to any income tax attributable to the artwork and automobile
on or before the Effective Date. If any payments to which the Executive is
entitled as a result of the Change in Control pursuant to (a) the two
preceding sentences of this Paragraph 7,
(b) any benefit plans or stock plans maintained by Republic prior to the
Change in Control, (c) his employment agreement with Republic as in effect
at
the time of the Change in Control (the "Prior Agreement"), or (d) Paragraph
5
of this
Agreement, would constitute "parachute payments" (as defined in Section
280G(b)(2) of the Code), the Executive shall receive additional payments
("Gross
Up Payments"), so that after the payment by the Executive of all taxes (other
than the tax under Section 4999 of the Code (the "Excise Tax")), penalties,
and
interest imposed upon the Gross Up Payments, the Executive shall retain an
amount of the Gross Up Payments equal to the Excise Tax on all payments.
In the
case of the lump sum cash payment described in the first sentence of this
Paragraph 7;
the
value of the artwork, automobile, and lump-sum payment described in the second
sentence of Paragraph 7;
any
parachute payment attributable to stock options (whether or not exercised
upon
the Change in Control); and any other amount that was subject to the Excise
Tax
at the time of the Change in Control, Republic shall make the Gross Up Payments
to Executive, and the Employer shall not assume responsibility for making
the
Gross Up Payments. All payments to be made, and actions to be taken, by Republic
under this Paragraph 7 shall be referred to as the “Republic Change in Control
Payments.” To the extent that payments due after the Change in Control pursuant
to Paragraph 5
of this
Agreement are deemed to be parachute payments, the Employer shall make the
related Gross Up Payments to Executive.
8. Time-Vested
Stock Award.
The
Employer regards Executive’s services for an extended period after the Change in
Control as being crucial to the continued success and future development
of the
business the Employer has acquired as a result of the Change in Control,
and to
the development of the Employer’s other business in the same region. In order to
retain Executive’s services for an extended period following the Change in
Control and to provide Executive with an opportunity to share directly in
the
success of the Employer’s business, the Employer will grant 16,130 shares of the
Employer’s time-vested stock to the Executive as of the Effective Date, to vest
over a period of three years following the Effective Date. A form of Time-Vested
Stock Agreement setting forth the terms of the time-vested stock grant is
attached to this Agreement.
9. Non-Competition
Covenant.
The
Executive hereby agrees that, during the Term and for a period of two (2)
years
following the termination of the Executive’s employment with the Employer (the
“Post-Employment Restricted Period”), the Executive shall not engage or invest
in, own, manage, operate, finance, control or participate in the ownership,
management, operation, financing or control of, be employed by, lend the
Executive’s name to, lend the Executive’s credit to or render services or advice
to any business that competes with
the
Employer’s Business in the Houston-Sugar Land-Baytown metropolitan area (as
defined by the United
States Office
of
Management and Budget
from
time to time), or any successor “metropolitan statistical area” thereto;
provided,
however,
that
the Executive may purchase or otherwise acquire up to three percent of any
class
of securities of any enterprise if such securities are listed on any national
or
regional securities exchange or have been registered under Section 12(g)
of the
Securities Exchange Act of 1934, as amended. Nothing in this Agreement shall
be
construed to prevent Executive from seeking or holding employment or a
consulting relationship after Executive’s term of employment, with any person,
firm, corporation, or other entity, which is not in competition with the
business of the Employer as defined in this Paragraph 9
of the
Agreement. For purposes of this Agreement, the “Employer’s Business” means
banking, trust, lending, other financial services, and other services related
to
or provided in connection with the operation of the Employer or any of its
affiliates.
-6-
10. Non-Solicitation
and Non-Inference Covenant.
The
Executive hereby agrees that, during the Term and for the Post-Employment
Restricted Period, the Executive shall not directly
or indirectly solicit, contact, call upon, or communicate with, or attempt
to do
so, any person or entity, or any representative of any person or entity,
in
order to obtain
any
business in competition with the Employer’s Business from any of the Employer’s
or any of its affiliates’ depositors, borrowers, customers or suppliers with
whom the Executive had Material Contact in the Houston-Sugar Land-Baytown
metropolitan area (as defined by the United
States Office
of
Management and Budget
from
time to time), or any successor “metropolitan statistical area” thereto. In
addition, the Executive shall take no action that would interfere with the
Employer’s or any affiliate’s relationship with any of its depositors,
borrowers, customers or suppliers, regardless of whether the Executive had
Material Contact with such depositors, borrowers, customers, or suppliers,
by
attempting to convince them to cease doing business with the Employer or
any
affiliate, or to reduce the quantity of such business, or to change its
preferences to another financial services provider, lender, supplier, or
vendor.
For purposes of this Agreement, “Material Contact” means personal contact, or
the supervision of the efforts of those who have direct personal contact
with a
depositor, borrower, customer or supplier, during the last two years of the
Executive’s employment with the Employer and its affiliates (or with any
predecessor that is acquired by the Employer or any affiliate).
11. Non-Recruitment
Covenant.
The
Executive agrees that, during the Term and for the Post-Employment Restricted
Period, the Executive shall not, directly or indirectly, solicit or attempt
to
solicit any employee of the Employer or any of its affiliates for the purpose
of
encouraging, enticing, or causing said employee to terminate employment with
the
Employer or any of its affiliates. The Executive agrees that, during the
Term
and for the Post-Employment Restricted Period, the Executive shall not, directly
or indirectly, hire or retain the services of any person who is, or was last,
employed by the Employer or any of its affiliates.
12. Non-Disparagement
Covenant.
The
Executive hereby agrees that the Executive will not directly or indirectly
disparage or subvert the business activities of the Employer or any of its
affiliates, or make any statement reflecting negatively on the Employer or
any
of its affiliates, or any of their respective officers, directors, employees,
affiliates, agents or representatives, including, but not limited to, any
matters relating to the operation or management of the Employer or any of
its
affiliates, the Executive’s employment, and the termination of the Executive’s
employment, irrespective of the truthfulness or falsity of such
statement.
-7-
13. Non-Disclosure
Covenant
(a) Confidential
Information Defined. The Executive
acknowledges that Employer's business is highly competitive, that as of the
Effective Date, Employer has given Executive Confidential Information of
Employer that is a valuable, special and unique asset used by Employer in
its
business, and that such information is constantly evolving and changing.
Executive agrees that protection of such Confidential Information against
unauthorized disclosure and use is of critical importance to Employer.
"Confidential Information" of Employer (or any subsidiary) means and includes
confidential or proprietary information or trade secrets that have been or
will
be developed or used and that cannot be obtained readily by third parties
from
outside sources. Confidential Information includes, but is not limited to,
the
following: information regarding customers, contractors and the industry
not
generally known to the public; strategies, methods, books, records and
documents; technical information concerning products, equipment, services
and
processes; procurement procedures, pricing and pricing techniques; information
concerning past, current and prospective customers, investors and business
affiliates (such as contact name, service provided, pricing, type and amount
of
services used, financial data and/or other such information); pricing strategies
and price curves; positions; plans or strategies for expansion or acquisitions;
budgets; research; financial and sales data; trading methodologies and terms;
communications information; evaluations, opinions and interpretations of
information and data; marketing and merchandising techniques; electronic
databases; models; specifications; computer programs; contracts; bids or
proposals; technologies and methods; training methods and processes;
organizational structure; personnel information; payments or rates paid to
consultants or other service providers; and other such confidential or
proprietary information.
(b) Non-Disclosure
Obligations.
The
Executive agrees that he will not, at any time during or after his employment
with Employer, make any unauthorized disclosure, directly or indirectly,
of any
Confidential Information of Employer, its subsidiary, or of any third parties
that the Executive received in connection with his employment with Employer.
The
Executive also agrees that he shall deliver promptly to Employer at the
termination of employment or at any other time at Employer's request, without
retaining any copies, all documents and other material in the Executive's
possession relating, directly or indirectly, to any Confidential Information
or
other information of Employer, or Confidential Information or other information
regarding third parties, learned as an employee at Employer.
14. Return
of Employer Property.
All
records, designs, patents, business plans, financial statements, manuals,
memoranda, lists, contracts and other property delivered to or compiled by
the
Executive by or on behalf of the Employer or their representatives, vendors
or
customers which pertain to the business of the Employer (including any
subsidiary) shall be and remain the property of the Employer and subject
at all
times to its discretion and control. Likewise, all correspondence, reports,
records, charts, advertising materials and other similar data pertaining
to the
business, activities or future plans of the Employer which is collected by
Executive during the course of his employment with the Employer shall be
delivered promptly to the Employer without request by it upon termination
of
Executive's employment.
-8-
15. Inventions.
Executive shall disclose promptly to the Employer any and all significant
conceptions and ideas for inventions, improvements and valuable discoveries,
whether patentable or not, which are conceived or made by the Executive,
solely
or jointly with another, during the period of employment or within one (1)
year
thereafter, and which are directly related to the business or activities
of the
Employer and which the Executive conceives as a result of his employment
hereunder. The Executive hereby assigns and agrees to assign all his interests
therein to the Employer or its nominee. Whenever requested to do so by the
Employer, the Executive shall execute any and all applications, assignments
or
other instruments that the Employer shall deem necessary to apply for and
obtain
Letters Patent of the United States or any foreign country or to otherwise
protect the Employer's interest therein.
16. Trade
Secrets.
The
Executive agrees not to, during or after the term of this Agreement, directly
or
indirectly, disclose (or use for the benefit of any person other than the
Employer) the specific terms of the Employer's (including any subsidiary)
relationships or agreements with their respective significant vendors or
customers or any other trade secret or other confidential business information
of the Employer (including any subsidiary), whether in existence or proposed,
to
any person, firm, partnership, corporation or business for any reason or
purpose
whatsoever, except and only to the extent (i) such information is or becomes
known to the public generally through no fault of the Executive or (ii) required
by law or legal process following notice to the Employer.
17. Enforcement
and Remedies.
(a) Application.
For
purposes of the obligations contained in Paragraphs 9
through
16,
the
term “Employer” shall include Republic and its affiliates, and any reference to
the business, customers, employees, confidential information, property, or
similar matters of the Employer shall include the business, customers,
employees, confidential information, property, or similar matters of Republic
and its affiliates as such matters existed prior to the Effective
Date.
(b) Enforcement.
It
is the
desire and intent of the parties hereto that the provisions of this Agreement
shall be enforced to the fullest extent permissible under the laws and public
policies applied in each jurisdiction in which enforcement is sought.
Accordingly, although the Executive and the Employer consider the restrictions
contained in this Agreement to be reasonable for the purpose of preserving
the
Employer’s goodwill and proprietary rights, if any particular provision of this
Agreement shall be adjudicated to be invalid or unenforceable, such provision
shall be deemed amended to delete the portion thus adjudicated to be invalid
or
unenforceable, such deletion to apply only with respect to the operation
of such
provision in the particular jurisdiction in which such adjudication is made.
It
is expressly understood and agreed that although the Employer and the Executive
consider the restrictions contained in Paragraph 9
to be
reasonable, if a final determination is made by a court of competent
jurisdiction that the duration or territory or any other restriction contained
in this Agreement is unenforceable against the Executive, the provisions
of this
Agreement shall be deemed amended to apply as to such maximum duration and
territory and to such maximum extent as such court may judicially determine
or
indicate to be enforceable.
-9-
(c) Remedies;
Survival.
The
parties acknowledge that the Employer’s damages at law would be an inadequate
remedy for the breach by the Executive of any provision of Paragraph
9,
and
agree
in the event of such breach that the Employer may obtain temporary and permanent
injunctive relief restraining the Executive from such breach, and, to the
extent
permissible under the applicable statutes and rules of procedure, a temporary
injunction may be granted immediately upon the commencement of any such suit.
Nothing contained herein shall be construed as prohibiting the Employer from
pursuing any other remedies available at law or equity for such breach or
threatened breach of Paragraph 9,
or for
any breach or threatened breach of any other provision of this Agreement.
The
obligations contained in Paragraphs 9
through
13,
15,
and
16
shall
survive the termination or expiration of the Executive’s employment with the
Employer and, as applicable, shall be fully enforceable thereafter in accordance
with the terms of this Agreement.
(d) Arbitration.
Any
unresolved dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted in the state
in
which the Employer's main office is located, in accordance with the Employment
Dispute Resolution Rules of the American Arbitration Association ("AAA")
then in
effect, provided that the Executive and the Employer shall comply with the
Employer's grievance procedures in an effort to resolve such dispute or
controversy before resorting to arbitration, and provided further that the
parties may agree to use an arbitrator other than those provided by the AAA.
The
arbitrator shall not have the authority to add to, detract from, or modify
any
provision hereof nor to award punitive damages to any injured party. A decision
of the arbitration panel shall be final and binding. Judgment may be entered
on
the arbitrator's award in any court having jurisdiction. The direct expense
of
any arbitration proceeding shall be apportioned by the arbitration
award.
18. Successor;
Binding Agreement.
The
Employer shall require any successor (whether direct or indirect, by purchase,
merger, consolidation, liquidation or otherwise) to all or substantially
all of
the business and/or assets of the Employer to agree to assume and to assume
all
of the obligations of the Employer under this Agreement upon or prior to
such
succession taking place. A copy of such assumption and agreement shall be
delivered to Executive promptly after its execution by the successor. However,
this Agreement is personal to the Executive and the Executive may not assign
or
transfer any part of his rights or duties hereunder, or any compensation
due to
him hereunder, to any other person, except that this Agreement shall inure
to
the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, heirs, distributees, devisees
or
beneficiaries.
19. Modification;
Waiver.
No
provision of this Agreement may be modified, waived or discharged unless
such
waiver, modification or discharge is agreed to in writing signed by the
Executive and by such director of the Employer as may be specifically designated
by the Board. Waiver by any party of any breach of or failure to comply with
any
provision of this Agreement by the other party shall not be construed as,
or
constitute waiver of such provision, or a waiver of any other breach of,
or
failure to comply with, any other provision of this Agreement.
-10-
20. Notice.
All
notices, requests, demands and other communications required or permitted
to be
given by either party shall be in writing, deemed to have been given when
delivered personally or received by certified or registered mail, return
receipt
requested, postage prepaid, at the address of the other party as
follows:
|
If
to the Employer to:
|
|
|
Trustmark
Corporation
|
|
|
000
Xxxx Xxxxxxx Xxxxxx
|
|
|
Post
Office Xxx 000
|
|
|
Xxxxxxx,
XX 00000
|
|
|
Attention:
Chief Executive Officer
|
|
|
If
to Executive to:
|
|
|
X.
X. Xxxxx
|
|
|
0000 Xxx
Xxxxx Xxxxx
|
|
|
|
Xxxxxxx, XX 00000 |
Either
party hereto may change its address for purposes of this
Paragraph 20
by
giving fifteen (15) days prior notice to the other party hereto.
21. Governing
Law.
This
Agreement has been executed and delivered in the State of Texas, and its
validity, interpretation, performance and enforcement shall be governed by
the
laws of that State.
22. Complete
Agreement.
(a) No
Other Agreement. This
Agreement sets forth the entire agreement of the parties relating to the
subject
matter hereof, and supersedes any other employment agreements or understandings,
written or oral, between the Employer, its predecessors and the Executive.
The
Executive has no oral representations, understandings or agreements with
the
Employer or any of its officers, directors or representatives covering the
same
subject matter as this Agreement. This Agreement is the final, complete and
exclusive statement and expression of the agreement between the Employer
and the
Executive and of all the terms of this Agreement, and it cannot be varied,
contradicted or supplemented by evidence of any prior or contemporaneous
oral or
written agreements.
-11-
(b) Effect
on Prior Agreement. This
Agreement replaces and supersedes the Executive’s Prior Agreement with Republic
as of the Effective Date. Republic shall be responsible for making the Change
in
Control payments described in Paragraph 7
of this
Agreement upon the consummation of the Change in Control. By signing this
Agreement, Executive acknowledges that any rights Executive had under the
Prior
Agreement (including, but not limited to, the right to require a successor
to
assume the Prior Agreement), and any corresponding obligation under the Prior
Agreement of Republic, the Employer (as successor to Republic), or the
affiliates of either of them, are superseded by this Agreement, except as
provided in the preceding sentence with respect to Republic’s obligation to make
the Change in Control payments described in Paragraph 7
of this
Agreement. Republic, its affiliates, and the officers, directors, and
shareholders of Republic and its affiliates shall be third-party beneficiaries
of this Paragraph 22.
23. Severability.
If any
portion of this Agreement is held invalid or inoperative, the other portions
of
this Agreement shall be deemed valid and operative and, so far as is reasonable
and possible, effect shall be given to the intent manifested by the portion
held
invalid or inoperative.
-12-
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as
of the date first written above. The Executive hereby acknowledges receipt
of a
copy of this Agreement duly signed by the Employer.
|
EMPLOYER:
|
|||
|
Trustmark
Corporation
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
Trustmark
National Bank
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
EXECUTIVE:
|
|||
|
X.
X. Xxxxx
|
|||
-13-
FORM
OF RELEASE
In
consideration of the payments and mutual promises and covenants set forth
in his
employment agreement with Trustmark Corporation, the Executive, on behalf
of
himself, his heirs, successors, current and former agents, representatives,
attorneys, assigns, executors, beneficiaries, and administrator, hereby releases
and forever discharges Trustmark Corporation and each and all of its current
and
former parents, divisions, subsidiaries and affiliates and each and all of
their
predecessors, successors, assigns, officers, directors, attorneys, shareholders,
employees, representatives and agents (collectively the "Trustmark Group"),
from
any and all charges, complaints, claims, liabilities, obligations, promises,
agreements, controversies, damages, actions, causes of action, suits, rights,
demands, costs, losses, debts and expenses (including attorneys’ fees) of any
nature whatsoever, whether in law or in equity, that the Executive now has
or
ever may have had against the Trustmark Group, including, but not limited
to,
any and all matters related in any way to Executive’s employment with or
separation from Trustmark, as well as all claims under Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Americans with
Disabilities Act, the Age Discrimination in Employment Act, the Older Worker
Benefit Protection Act, the Employee Retirement Income Security Act of 1974,
the
National Labor Relations Act, the Immigration Reform and Control Act, the
Workers Adjustment and Retraining Notification Act, the Occupational Safety
and
Health Act, the Family and Medical Leave Act, any other federal, state or
local
anti-discrimination, wage or benefits laws, and any other contractual or
tort
claims relating to Executive’s employment with or separation from employment
with Trustmark. Executive further agrees that, if any agency or court assumes
jurisdiction over any complaint or charge covered by the release above,
Executive shall request immediate dismissal of the matter.
Executive
represents that he has not filed, nor has he assigned to any third person,
any
claims, charges or actions against Trustmark Corporation or the Trustmark
Group.
Further, Executive agrees not to assist any third party with any claim brought
against Trustmark Corporation or the Trustmark Group, unless Executive’s
assistance is required by law.
By
signing this Release, the Executive acknowledges and agrees that:
(a) he
has
been afforded a reasonable and sufficient period of time for deliberation
thereon and for negotiation of the terms thereof;
(b) he
has
carefully read and understands the terms of this Release;
(c) he
has
signed this Release freely and voluntarily and without duress or coercion
and
with full knowledge of its significance and consequences and of the rights
relinquished, surrendered, released and discharged hereunder;
(d) the
only
consideration for signing this Release are the terms stated herein and no
other
promise, agreement or representation of any kind has been made to him by
any
person or entity whatsoever to cause him to sign this Release;
-14-
(e) that
Trustmark Corporation did offer him a minimum period of at least twenty-one
(21)
days after his receipt of this Release to review it; and
(f) that
Trustmark Corporation advised him that he had the opportunity to consult
an
attorney before signing this Release.
This
Release may be revoked, in a writing sent to the Chairman of the Executive
Committee of Trustmark Corporation, by the Executive at any time during the
period of seven (7) calendar days following the date of execution by the
Executive. If such seven (7) day revocation period expires without the
Executive’s exercising his revocation right, the obligations of this Release
will become fully effective on the eighth day after Executive’s execution of the
Release (the “Effective Date”).
|
EMPLOYER:
|
|||
|
Trustmark
Corporation
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
EXECUTIVE:
|
|||
|
X.
X. Xxxxx
|
|||
-15-
FORM
OF TIME-VESTED STOCK AWARD
TRUSTMARK
CORPORATION
TIME-VESTED
STOCK AGREEMENT
Granted
_______, 2006
This
Time-Vested Stock Agreement is entered into on
________, 2006, in part, pursuant to the 2005 Stock
and Incentive Compensation Plan (the “Plan”) of Trustmark Corporation (the
“Company”) and evidences, in part, the grant of Restricted Stock (as defined in
the Plan), and the terms, conditions and restrictions pertaining thereto,
to
___________ (the “Associate”).
WHEREAS,
the Company maintains the Plan under which the Committee (as defined in the
Plan) may, among other things, award shares of the Company’s common stock
(“Stock”) to such key associates of the Company and its Subsidiaries (as defined
in the Plan) as the Committee may determine, subject to such terms, conditions
and restrictions as it may deem appropriate;
WHEREAS,
pursuant to the Plan, the Committee has granted to the Associate a restricted
stock award conditioned upon the execution by the Company and the Associate
of a
Time-Vested Stock Agreement setting forth all the terms and conditions
applicable to such award; and
WHEREAS,
outside of the Plan and in addition to the restricted stock award made pursuant
to the Plan, the Company has also agreed to make certain Covenant Payments
to
the Associate subject to the terms and conditions provided herein;
NOW
THEREFORE, in consideration of the benefits which the Company expects to
be
derived from the services rendered to it and its Subsidiaries by the Associate
and of the covenants contained herein, the parties hereby agree as
follows:
1. Award
of Shares.
Under
the terms of the Plan, the Committee grants the Associate a restricted stock
award (the “Award”) effective on ________,
2006
(“Award Date”), covering ____________ shares of the Company’s Stock (the “Award
Shares”) subject to the terms, conditions, and restrictions set forth in this
Agreement.
2. Period
of Restriction.
|
(a)
|
Subject
to earlier vesting or forfeiture as hereinafter provided, the period
of
restriction (the “Period of Restriction”) applicable to the Award Shares
is the period from the Award Date to the third anniversary of the
Award
Date.
|
|
(b)
|
Except
as contemplated in Section 6, the Award Shares may not be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated,
otherwise than by will or by the laws of descent and distribution,
during
the Period of Restriction. Except as otherwise provided pursuant
to
Section 6, the applicable portion of the Award Shares shall become
freely
transferable by the Associate after the last day of the Period
of
Restriction.
|
-16-
3. Stock
Certificates.
The
stock certificate(s) for the Award Shares shall be registered on the Company’s
stock transfer books in the name of the Associate. Physical possession of
the
stock certificate(s) shall be retained by the Company until such time as
the
restrictions hereunder lapse. The Associate shall provide a duly executed
stock
power in blank to the Company. The certificate(s) evidencing the Award shall
bear the following legend:
The
sale
or other transfer of the Shares of Stock represented by this certificate,
whether voluntary, involuntary, or by operation of law, is subject to certain
restrictions on transfer set forth in the Trustmark Corporation 2005 Stock
and
Incentive Compensation Plan, in the rules and administrative procedures adopted
pursuant to such Plan, and in an Agreement dated «date 1»,
2006. A
copy of the Plan, such rules and procedures, and such Time-Vested Stock
Agreement may be obtained from the Secretary of Trustmark
Corporation.
4. Voting
Rights.
During
the Period of Restriction, the Associate may exercise full voting rights
with
respect to the Award Shares.
5. Dividends
and Other Distributions.
During
the Period of Restriction, all dividends and other distributions paid with
respect to the Award Shares (whether in cash, property or shares of the
Company’s Stock) shall be registered in the name of the Associate and deposited
with the Company as provided in Paragraph 3. Such dividends and other
distributions shall be subject to the same restrictions on transferability
and
vesting as the Award Shares with respect to which they were paid and shall,
to
the extent vested, be paid when and to the extent the underlying Award Shares
are vested and freed of restrictions.
6. Termination
of Employment and Forfeiture of Award Shares; and Covenant
Payments.
|
(a)
|
If
the Associate’s employment with the Company or its Subsidiaries ceases due
to (1) the Associate’s death or disability (as defined for purposes
of Section 22(e)(3) of the Internal Revenue Code), (2) termination of
the Associate’s employment by the Company without Cause (as defined
herein) or (3) voluntary termination by the Associate after a Change
in Control, any remaining Period of Restriction applicable to the
Award
Shares shall automatically terminate, and the Award Shares shall
be free
of restrictions and freely transferable (referred to herein as
“vesting”),
with respect to that portion of the Award Shares determined to
be vested
under the Incremental Vesting Schedule (as defined below). If the
Associate’s employment ceases as described in this Section 6(a), the
Associate is not required to comply with the Covenant Obligations
herein.
|
-17-
|
(b)
|
If
the Associate’s employment with the Company or its Subsidiaries ceases for
any reason other than as provided in Section 6(a) (including, without
limitation, termination by the Company for Cause or voluntary termination
by the Associate prior to a Change in Control) during the Period
of
Restriction, any Award Shares shall be automatically forfeited
to the
Company; provided, however, upon a voluntary termination by the
Associate
during the Period of Restriction and prior to a Change in Control,
the
Associate shall be entitled to receive the Covenant Payments .
Such
Covenant Payments shall be made in accordance with Company's usual
payroll
practices; provided, however, if the Covenants Payments are considered
to
be nonqualified deferred compensation subject to Section 409A of
the
Internal Revenue Code and if the Associate is a specified employee
of a
publicly traded corporation as required by Section 409A(a)(2)(B)(i)
of the
Internal Revenue Code because of his or her employment relationship
with
the Company, any payment in connection with a separation from service
payment event (as determined for purposes of Section 409A of the
Internal
Revenue Code) shall not be made until six months after the Associate’s
separation from service (the “409A
Deferral Period”), and provided further that in the event Covenant
Payments are deferred during the 409A Deferral Period, the payments
which
would otherwise have been made in the 409A Deferral Period shall
be
accumulated and paid in a lump sum as soon as the 409A Deferral
Period
ends, and the balance of the payments shall be made as otherwise
scheduled.
If the Associate’s employment ceases as described in this Section 6(b),
the Associate is required to comply with the Covenant Obligations
herein;
provided, however, that if the Associate’s employment ceases after the
occurrence of a Change in Control (as defined in the Plan) for
any such
reason other than a termination by the Company for Cause, the Associate
is
not required to comply with the Covenant Obligations herein.
Notwithstanding anything to the contrary herein, if the Associate
fails to
comply with the Covenant Obligations, any and all remaining Covenant
Payments shall automatically be forfeited to the Company; no Covenant
Payment shall be made to the Associate pursuant hereto if the Release
attached hereto is not provided to the Company, without revocation
thereof, no later than forty-five (45) days after the Associate’s
Termination Date; and no Covenant Payment hereunder shall be provided
to
the Associate prior to the Company’s receipt of the Release and the
expiration of the period of revocation provided in the
Release.
|
|
(c)
|
If
the Associate fails to comply with his or her Confidentiality Obligation
during the Period of Restriction, any Award Shares still subject
to
restrictions and all remaining Covenant Payments at the date of
such
failure shall be automatically forfeited to the
Company.
|
|
(d)
|
For
purposes of this Agreement, transfer of employment among the Company
and
its Subsidiaries shall not be considered a termination or interruption
of
employment.
|
|
(e)
|
The
following terms have the following meanings for purposes
hereof:
|
|
(i)
|
“Cause”
means that the Associate has (A) committed an act of personal
dishonesty, embezzlement or fraud, (B) has misused alcohol or drugs,
(C) failed to pay any obligation owed to the Company or any affiliate
of the Company, (D) breached a fiduciary duty or deliberately
disregarded any rule of the Company or any affiliate of the Company,
(E) has committed an act of willful misconduct, or the intentional
failure to perform stated duties, (F) has willfully violated any law,
rule or regulation (other than misdemeanors, traffic violations
or similar
offenses) or any final cease-and-desist order, (G) has disclosed
without authorization any confidential information of the Company
or any
affiliate of the Company, (H) or has engaged in any conduct
constituting unfair competition, or (I) has induced any customer of
the Company or any affiliate of the Company to breach a contract
with the
Company or any affiliate of the
Company.
|
-18-
|
(ii)
|
“Incremental
Vesting Schedule” means the following portion of the Award Shares based on
the period from the Award Date to the Associate’s Termination Date shall
be vested:
|
|
If
Termination Date
Occurs
On or After
|
And
Termination Date
Occurs
Before
|
Then
Vested
Portion
Is
|
||
|
Award
Date
|
1
year, 3 months after Award Date
|
4/12s
|
||
|
1
year, 3 months after Award Date
|
1
year, 6 months after Award Date
|
5/12s
|
||
|
1
year, 6 months after Award Date
|
1
year, 9 months after Award Date
|
6/12s
|
||
|
1
year, 9 months after Award Date
|
2
years after Award Date
|
7/12s
|
||
|
2
years after Award Date
|
2
years, 3 months after Award Date
|
8/12s
|
||
|
2
years, 3 months after Award Date
|
2
years, 6 months after Award Date
|
9/12s
|
||
|
2
years, 6 months after Award Date
|
2
years, 9 months after Award Date
|
10/12s
|
||
|
2
years, 9 months after Award Date
|
3
years after Award Date
|
11/12s
|
For
purposes of the Incremental Vesting Schedule, a date in a month other than
the
month of the Award Date means the numerically corresponding date in the other
month, provided that if there is no such numerically corresponding date in
the
other month, then the applicable date in the other month shall be the last
day
of such other month.
|
(iii)
|
“Confidentiality
Obligation” means the Associate agrees to keep the proprietary terms of
this Agreement confidential and to refrain from disclosing any
information
concerning this Agreement to any one other than Associate’s spouse and
personal advisors. Notwithstanding the foregoing, nothing in this
Agreement is intended to prohibit the Associate from performing
any duty
or obligation that shall arise as a matter of law. Specifically,
the
Associate shall continue to be under a duty to truthfully respond
to any
legal and valid subpoena or other legal process. This Agreement
is not
intended in any way to proscribe the Associate’s right and ability to
provide information to any federal, state or local agency in response
or
adherence to the lawful exercise of such agency’s
authority.
|
|
(iv)
|
“Covenant
Obligations” means each and all of the
following:
|
-19-
(A) Non-Solicitation
and Non-Interference.
The
Associate shall not directly or indirectly solicit, contact, call upon, or
communicate with, or attempt to do so, any person or entity, or any
representative of any person or entity, in order to obtain
any
business in competition with the Company Business from any of the Company’s or
any of its affiliates’ depositors, borrowers, customers or suppliers with whom
the Associate had Material Contact in the Houston-Sugar Land-Baytown
metropolitan area (as defined by the United
States Office
of Management and Budget
from
time to time or any successor “metropolitan statistical area” thereto). These
are referred to as "Metropolitan Statistical Areas" (MSAs)) during the last
two
years of the Associate’s employment with the Company and its affiliates (or any
predecessor which is acquire by the Company or any affiliate) . In addition,
the
Associate shall take no action that would interfere with the Company’s or any
affiliate’s relationship with any of its depositors, borrowers, customers or
suppliers, regardless of whether the Associate had Material Contact with
such
depositors, borrowers, customers or suppliers, by attempting to convince
them to
cease doing business with the Company or any affiliate, or to reduce the
quantity of such business, or to change its preferences to another financial
services provider, lender, supplier or vendor. For purposes hereof, “Company
Business” means the provision of banking, trust, lending, other financial
services and other services related to or provided in connection with the
operation of the Company or any of its affiliates; and “Material Contact” means
personal contact or the supervision of the efforts of those who have direct
personal contact with a depositor, borrower, customer or supplier.
(B) Non-Recruitment.
The
Associate shall not directly or indirectly solicit or attempt to solicit
any
employee of the Company or any of its affiliates for the purpose of encouraging,
enticing, or causing said employee to terminate employment with the Company
or
any of its affiliates.
(C) Non-Hiring.
The
Associate shall not directly or indirectly hire or retain the services of
any
person who is, or was last, employed by the Company or any of its
affiliates.
(D) Non-Disparagement.
The
Associate shall not disparage or subvert the business activities of the Company
or any of its affiliates, or make any statement reflecting negatively on
the
Company or any of its affiliates, or any of their respective officers,
directors, employees, affiliates, agents or representatives, including, but
not
limited to, any matters relating to the operation or management of the Company
or any of its affiliates, the Associate’s employment and the termination of the
Associate’s employment, irrespective of the truthfulness or falsity of such
statement.
The
Associate agrees and acknowledges that the grant of the Award Shares, potential
to vest therein and the opportunity to receive the Covenant Payments, together
with the payment of $100 in addition thereto (the receipt of which is hereby
acknowledged), are adequate consideration for his or her Covenant Obligations.
The
forfeiture of the Award Shares and any remaining Covenant Payments pursuant
hereto shall not preclude the Company from pursuing enforcement of the
Associate’s Covenant
Obligations
or from
pursuing any other rights and remedies at law or in equity which it may
have.
|
(iv)
|
“Covenant
Period” means the period from the date the Associate’s employment with the
Company or its Subsidiaries is terminated voluntarily by the Associate
during the Period of Restriction through (A) the [second
[for CEO] / first [for others]]
anniversary of such date or (B) the third anniversary of the Award
Date.
|
-20-
|
(v)
|
“Covenant
Payments” means fifty percent (50%) of the Associate's base salary at his
or her Termination Date payable for the duration of the Covenant
Period
or, if shorter, until the date of the Associate’s death
.
|
|
(vi)
|
“Termination
Date” means the first date on or after the Award Date on which the
Associate’s employment with the Company or its Subsidiaries ceases for any
reason. Compliance with the Associate’s Confidentiality Obligation or
Covenant Obligations shall not be considered part of the Associate’s
period of employment for purposes of determining the Associate’s
Termination Date.
|
7. Withholding
Taxes.
The
Company, or any of its Subsidiaries, shall have the right to retain and withhold
the amount of taxes required by any government to be withheld or otherwise
deducted and paid with respect to the Award Shares and any Covenant Payments.
The Committee may require the Associate or any successor in interest to pay
or
reimburse the Company, or any of its Subsidiaries, for any such taxes required
to be withheld by the Company, or any of its Subsidiaries, and to withhold
any
distribution in whole or in part until the Company, or any of its Subsidiaries,
is so paid or reimbursed. In lieu thereof, the Company, or any of its
Subsidiaries, shall have the right to withhold from any other cash amounts
due
to or to become due from the Company, or any of its Subsidiaries, to or with
respect to the Associate an amount equal to such taxes required to be withheld
by the Company, or any of its Subsidiaries, to pay or reimburse the Company,
or
any of its Subsidiaries, for any such taxes or to retain and withhold a number
of shares of the Company’s Stock having a market value not less than the amount
of such taxes and cancel any such shares so withheld in order to pay or
reimburse the Company, or any of its Subsidiaries, for any such taxes. The
Associate or any successor in interest is authorized to deliver shares of
the
Company’s Stock in satisfaction of minimum statutorily required tax withholding
obligations (whether or not such shares have been held for more than six
months
and including shares acquired pursuant to this Award if the restrictions
thereon
have lapsed).
8. Administration
of Plan.
The
Plan is administered by a Committee appointed by the Company’s Board of
Directors. The Committee has the authority to construe and interpret the
Plan,
to make rules of general application relating to the Plan, to amend outstanding
awards pursuant to the Plan, and to require of any person receiving an award,
at
the time of such receipt or lapse of restrictions, the execution of any paper
or
the making of any representation or the giving of any commitment that the
Committee shall, in its discretion, deem necessary or advisable by reason
of the
securities laws of the United States or any State, or the execution of any
paper
or the payment of any sum of money in respect of taxes or the undertaking
to pay
or have paid any such sum that the Committee shall in its discretion, deem
necessary by reason of the Internal Revenue Code or any rule or regulation
thereunder, or by reason of the tax laws of any State.
9. Plan
and Prospectus.
This
Award, but not the obligation to make Covenant Payments, is granted pursuant
to
the Plan and is subject to the terms thereof (including all applicable vesting,
forfeiture, settlement and other provisions). A copy of the Plan, as well
as a
prospectus for the Plan, has been provided to the Associate; and the Associate
acknowledges receipt thereof.
10. Notices.
Any
notice to the Company required under or relating to this Agreement shall
be in
writing and addressed to:
-21-
|
Trustmark
Corporation
|
Mailing
Address
|
|
|
000
X. Xxxxxxx Xxxxxx
|
X.X.
Xxx 000
|
|
|
Xxxxxxx,
XX 00000
|
Xxxxxxx,
XX 00000
|
|
|
Attention:
Secretary
|
Any
notice to the Associate required under or relating to this Agreement shall
be in
writing and addressed to the Associate at his or her address as it appears
on
the records of the Company.
11. Construction.
The
portion of this Agreement pertaining to the Award shall be administered,
interpreted and construed in accordance with the applicable provisions of
the
Plan. The portion of this Agreement pertaining to the Covenant Payments shall
be
governed by and construed in accordance with the substantive laws of the
State
of Mississippi, without giving effect to the principles of conflict of laws
of
such State. The obligations and covenants contained herein shall be presumed
to
be enforceable, and any reading causing unenforceability shall yield to a
construction permitting enforcement. If any provision, term, phrase, or word
shall be found unenforceable, it shall be severed and the remaining covenants
and clauses enforced in accordance with the tenor of the Agreement. In the
event
a court should determine not to enforce a covenant as written due to
overbreadth, the parties specifically agree that said covenant shall be enforced
to the extent reasonable, whether said revisions be in time, territory, or
scope
of prohibited activities.
12. Term
of Agreement.
Except
for any Confidentiality Obligations and Covenant Obligations which continue
pursuant to Section 6 after the Associate’s Termination Date and the Company’s
obligation to make the Covenant Payments pursuant hereto, the term of this
Agreement shall end on the date the Period of Restriction ends.
To
evidence their agreement to the terms, conditions and restrictions hereof,
the
Company and the Associate have signed this Agreement as of the date first
above
written.
|
COMPANY:
|
|||
|
TRUSTMARK
CORPORATION
|
|||
|
By:
|
|||
|
Its:
|
|||
|
ASSOCIATE:
|
|||
|
By:
|
|||
|
<<name>>
|
|||
-22-
EXHIBIT
G
to
Agreement
and Plan for Reorganization
Trustmark
Corporation
Peer
Group
Per
share
Average Closing Price
Selection
Criteria: Company designated peer group.
|
Name
|
City
|
St.
|
Ticker
|
4/12/06
Average
Close
|
Final
Average
Close
|
|
Alabama
National BanCorp.
|
Birmingham
|
AL
|
ALAB
|
$65.63
|
|
|
BancorpSouth
Inc.
|
Tupelo
|
MS
|
BXS
|
$23.92
|
|
|
Xxxxxxxxxx
Corp.
|
Burlington
|
VT
|
CHZ
|
$27.91
|
|
|
Citizens
Banking Corp.
|
Flint
|
MI
|
CBCF
|
$25.65
|
|
|
Cullen/Frost
Bankers Inc.
|
San
Antonio
|
TX
|
CFR
|
$52.31
|
|
|
First
Midwest Bancorp Inc.
|
Itasca
|
IL
|
FMBI
|
$35.69
|
|
|
FirstMerit
Corp.
|
Akron
|
OH
|
FMER
|
$23.57
|
|
|
Xxxxxx
Financial Corp.
|
Lancaster
|
PA
|
FULT
|
$16.55
|
|
|
Greater
Bay Bancorp
|
Palo
Alto
|
CA
|
GBBK
|
$26.50
|
|
|
Xxxxxxx
Holding Co.
|
Gulfport
|
MS
|
HBHC
|
$44.73
|
|
|
MB
Financial Inc.
|
Chicago
|
IL
|
MBFI
|
$34.91
|
|
|
Old
National Bancorp
|
Evansville
|
IN
|
ONB
|
$20.55
|
|
|
Pacific
Capital Bancorp
|
Santa
Barbara
|
CA
|
PCBC
|
$32.60
|
|
|
Park
National Corp.
|
Newark
|
OH
|
PRK
|
$102.92
|
|
|
Sky
Financial Group Inc.
|
Bowling
Green
|
OH
|
SKYF
|
$25.39
|
|
|
South
Financial Group Inc.
|
Greenville
|
SC
|
TSFG
|
$25.14
|
|
|
Susquehanna
Bancshares Inc.
|
Lititz
|
PA
|
SUSQ
|
$24.08
|
|
|
UMB
Financial Corp.
|
Kansas
City
|
MO
|
UMBF
|
$68.11
|
|
|
United
Bankshares Inc.
|
Charleston
|
WV
|
UBSI
|
$36.34
|
|
|
United
Community Banks Inc.
|
Blairsville
|
GA
|
UCBI
|
$27.41
|
|
|
Valley
National Bancorp
|
Wayne
|
NJ
|
VLY
|
$25.33
|
|
|
Xxxxxxx
Financial Corp.
|
Waterbury
|
CT
|
WBS
|
$47.42
|
|
|
Whitney
Holding Corp.
|
New
Orleans
|
LA
|
WTNY
|
$34.06
|
|
|
Average
|
$36.81
|
