EXHIBIT INDEX
FIRST FARMERS AND MERCHANTS CORPORATION
Exhibit Number Title or Description
(2) Agreement and Plan of Merger
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of December 14,
2000, among FIRST FARMERS AND MERCHANTS NATIONAL BANK OF
COLUMBIA, COLUMBIA, TENNESSEE, a national banking association
("Buyer Bank"), PEOPLES AND UNION BANK, a Tennessee banking
corporation ("Seller Bank" and together with Buyer Bank, the
"Banks"), and FIRST TENNESSEE NATIONAL CORPORATION, a Tennessee
corporation ("First Tennessee").
WHEREAS, Seller Bank is a wholly owned subsidiary of
First Tennessee; and
WHEREAS, the Boards of Directors of the Banks have
determined that it is in the best interests of their respective
companies and their shareholders to consummate the business
combination transaction provided for herein in which Seller Bank
will merge with and into Buyer Bank (the "Merger"), subject to
the terms and conditions set forth herein; and
WHEREAS, the parties desire to make certain
representations, warranties and agreements in connection with the
Merger and also to prescribe certain conditions to the Merger.
NOW, THEREFORE, in consideration of the mutual
covenants, representations, warranties and agreements contained
herein, and intending to be legally bound hereby, the parties
agree as follows:
ARTICLE I
THE MERGER
1.1. The Merger. Subject to the terms and conditions
of this Agreement, in accordance with the National Bank Act (the
"NBA") and the Tennessee Banking Act (the "TBA"), at the
Effective Time (as defined in Section 1.2 hereof), Seller Bank
shall merge with and into Buyer Bank. Buyer Bank shall be the
surviving banking corporation (hereinafter sometimes called the
"Surviving Bank") in the Merger, and shall continue its corporate
existence under the laws of the United States. The name of the
Surviving Bank shall continue to be First Farmers and Merchants
National Bank of Columbia, Columbia, Tennessee.
1.2. Effective Time. The Merger shall become effective
at 5:00 p.m. on the Closing Date (as defined in Section 9.1) or
such later time as may be specified by applicable law (the
"Effective Time").
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1.3. Effects of the Merger. At and after the Effective Time,
(i) the Merger shall have the effects set forth in the NBA and the
TBA, (ii) the separate corporate existence of Seller Bank shall
cease and Seller Bank shall be merged with and into Buyer Bank,
(iii) Buyer Bank shall continue to possess all of the rights,
privileges and franchises possessed by it and shall, on the
Effective Date, become vested with and possess all rights,
privileges and franchises possessed by Seller Bank, and (iv)
Buyer Bank shall be responsible for all of the liabilities and
obligations of Seller Bank in the same manner as if Buyer Bank
had itself incurred such liabilities or obligations, and the
Merger shall not affect or impair the rights of the creditors of
or any persons dealing with Seller Bank.
1.4. Conversion of Seller Bank Common Stock.
(a) Payment of Merger Consideration; Conversion of
Shares. At the Effective Time, all of the common stock, par
value $10.00, of Seller Bank (the "Seller Bank Common
Stock") shall, by virtue of this Agreement and without any
action on the part of the holder thereof, be converted into
and exchangeable for the right to receive an aggregate cash
payment in an amount equal to (i) $13,000,000, plus (ii) the
stockholders' equity of Seller Bank as of the Effective Time
(the "Seller Bank Book Value"), subject to adjustments as
set forth in Section 1.4(b) below (the "Merger
Consideration"). Notwithstanding the foregoing, the Seller
Bank Book Value shall not exceed $10,500,000 or such lesser
number as Buyer Bank may require, in its sole discretion,
subject to applicable legal requirements. All of the shares
of Seller Bank Common Stock converted into the right to
receive Merger Consideration pursuant to this Article I
shall no longer be outstanding and shall automatically be
cancelled and shall cease to exist, and each certificate
(each a "Certificate") previously representing any such
shares of Seller Bank Common Stock shall thereafter
represent only the right to receive the Merger Consideration
from Buyer Bank until the same is paid to First Tennessee by
Buyer Bank, and from First Tennessee thereafter. As of the
date hereof, First Tennessee hereby expressly forfeits and
waives any and all statutory dissenters' rights which it may
now or hereafter possess.
(b) Adjustments to Merger Consideration.
(i) The parties hereby acknowledge that the Merger
Consideration set forth in Section 1.4(a) above will be
computed at the Closing Date by estimating the Seller Bank
Book Value based upon Seller Bank's stockholders' equity as
of the close of business on the business day immediately
preceding the Closing Date (the "Estimated Seller Bank
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Book Value"). If necessary, on the fifteenth business day after
the Closing Date or such earlier date as may be agreed to in
writing by the parties (the "Adjustment Payment Date"), an
adjustment payment (the "Adjustment Payment") shall be made
either by First Tennessee to Buyer Bank or by Buyer Bank to
First Tennessee, as appropriate, so as to correct any
discrepancy between the amount of the Estimated Seller Bank
Book Value and the Seller Bank Book Value, plus interest on
the Adjustment Payment amount accruing from the Closing Date
to the Adjustment Payment Date at a rate equal to the
Federal Funds rate as published by the Board of Governors of
the Federal Reserve System for the applicable period. First
Tennessee shall provide, at Buyer Bank's request, a closing
statement which reflects the calculation of the Adjustment
Payment. The Adjustment Payment and interest due to either
party pursuant to this Section shall be paid to such party
on the Adjustment Payment Date by the other party by wire
transfer of immediately available funds to an account
designed by the payee party.
(ii) The parties hereby agree that, prior to the
Effective Time, accountants selected by Buyer Bank shall
have the right to review the unaudited financial statements
and books and records of Seller Bank through December 31,
2000, at Buyer Bank's sole expense (the "Financial Review").
In the event the Financial Review results in a determination
by such accountants that Seller Bank has not prepared its
financial statements in material accordance with generally
accepted accounting principles ("GAAP"), consistently
applied, the accountants shall confer with accountants
employed by First Tennessee regarding the proposed
adjustments necessary to result in the financial statements
of Seller Bank being prepared in accordance with GAAP.
First Tennessee shall cause such adjustments as agreed to by
the accountants (which adjustments include the tax impact of
such changes) to be made either by (a) causing such agreed
changes to be posted as an adjustment to the stockholders
equity of Seller Bank or (b) adjusting the $13,000,000 cash
payment made pursuant to Section 1.4(a) of this Agreement
accordingly.
1.5. Buyer Bank Common Stock. All shares of common
stock, par value $10.00, of Buyer Bank issued and outstanding
immediately prior to the Effective Time shall be unaffected by
the Merger, and such shares shall remain issued and outstanding.
1.6. Articles. At the Effective Time, the articles of
association of Buyer Bank as in effect at the Effective Time
shall be the articles of association of the Surviving Bank until
thereafter amended in accordance with applicable law.
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1.7. Bylaws. At the Effective Time, the bylaws of Buyer
Bank as in effect at the Effective Time shall be the bylaws of
the Surviving Bank until thereafter amended in accordance with
applicable law.
1.8. Directors and Officers. The directors and
officers of Buyer Bank immediately prior to the Effective Time
shall be the directors and officers of the Surviving Bank, each
to hold office in accordance with the articles of association and
bylaws of the Surviving Bank until their respective successors
are duly elected or appointed and qualified.
ARTICLE II
PAYMENT AND EXCHANGE OF SHARES
2.1. Surrender of Certificates. At and upon the Closing (as
defined in Section 9.1), (i) Buyer Bank shall pay the Merger
Consideration to First Tennessee in immediately available funds,
and (ii) First Tennessee shall make available and surrender to
Buyer Bank Certificates representing all of the issued and
outstanding Seller Bank Common Stock.
2.2. Indemnity for Lost Certificates. In the event any
Certificate shall have been lost, stolen or destroyed, First
Tennessee shall make an affidavit of that fact and shall
indemnify Buyer Bank and its affiliates against any claim that
may be made against them with respect to such Certificate.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF FIRST TENNESSEE
First Tennessee represents and warrants to Buyer Bank
as follows:
3.1. Corporate Organization.
(a) First Tennessee is a corporation duly
organized, validly existing and in good standing under the
laws of the State of Tennessee and is a registered bank
holding company under the Bank Holding Company Act of 1956,
as amended.
(b) Seller Bank is a Tennessee banking
corporation duly organized, validly existing and in good
standing under the laws of the State of Tennessee. The
deposit accounts of Seller Bank are insured by the Federal
Deposit Insurance Corporation (the "FDIC") through the Bank
Insurance Fund to the fullest extent permitted by law, and
all premiums and assessments required to be paid in
connection therewith have been paid when due.
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(c) To First Tennessee's knowledge, the minute
books of Seller Bank contain true and correct records of all
meetings and other action held or taken since December 31,
1995 of its shareholders and Board of Directors (including
committees of its Boards of Directors).
3.2. Capitalization.
(a) The authorized capital stock of Seller Bank
consists of 48,000 shares of Seller Bank Common Stock,
$10.00 par value, and no shares of preferred stock. There
are 48,000 shares of Seller Bank Common Stock and no shares
of Seller Bank preferred stock outstanding. All of the
issued and outstanding Seller Bank Common Stock is owned and
held by First Tennessee as sole record and beneficial owner.
All of the issued and outstanding shares of Seller Bank
Common Stock have been duly authorized and validly issued
and are fully paid, nonassessable and have been issued in
compliance with or free of preemptive rights, with no
personal liability attaching to the ownership thereof. There
are no outstanding subscriptions, options, warrants, calls,
commitments or agreements of any character calling for the
purchase or issuance of any shares of Seller Bank Common
Stock or any other equity security of Seller Bank or any
securities representing the right to purchase or otherwise
receive any shares of Seller Bank Common Stock or any other
security of Seller Bank.
(b) Except as set forth in Section 3.2(b) of the
Seller Bank Disclosure Schedule, Seller Bank does not own
(other than in a bona fide fiduciary capacity or in
satisfaction of a debt previously contracted) beneficially,
directly or indirectly, any shares of any equity securities
or similar interests of any corporation, trust, limited
liability company or similar entity, or any interest in a
partnership or joint venture of any kind.
3.3. Authority; No Violation.
(a) Subject to approval by the OCC, the Tennessee
Department of Financial Institutions (the "TDFI") and the
Board of Directors of First Tennessee, each of First
Tennessee and Seller Bank has full corporate power and
authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have
been duly and validly approved by the Board of Directors of
Seller Bank. The Board of Directors of Seller Bank has
directed that this Agreement and the transactions
contemplated hereby be submitted to First Tennessee as
Seller Bank's sole shareholder for approval. Except for
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approval by First Tennessee's Board of Directors and by
First Tennessee as the sole shareholder of Seller Bank, no
other corporate proceedings on the part of First Tennessee
or Seller Bank are necessary to approve this Agreement and
to consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered
by each of First Tennessee and Seller Bank and assuming due
authorization, execution and delivery by Buyer Bank
constitutes a valid and binding obligation of each of First
Tennessee and Seller Bank, enforceable against such parties
in accordance with its terms, except as enforcement may be
limited by general principles of equity whether applied in a
court of law or a court of equity and by bankruptcy,
insolvency and similar laws affecting creditors' rights and
remedies generally.
(b) Neither the execution and delivery of this
Agreement by First Tennessee or Seller Bank, nor the
consummation by First Tennessee or Seller Bank of the
transactions contemplated hereby, nor compliance by First
Tennessee or Seller Bank with any of the terms or provisions
hereof, will (i) violate any provision of the charter or
bylaws of First Tennessee or Seller Bank, or (ii) assuming
that the consents and approvals referred to in Section 3.4
hereof are duly obtained, (x) violate any statute, code,
ordinance, rule, regulation, judgment, order, writ, decree
or injunction applicable to First Tennessee or Seller Bank,
or any of its properties or assets, or (y) violate, conflict
with, result in a breach of any provision of or the loss of
any benefit under, constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a
default) under, result in the termination of or a right of
termination or cancellation under, accelerate the
performance required by, or result in the creation of any
lien, pledge, security interest, charge or other encumbrance
upon any of the respective properties or assets of Seller
Bank under, any of the terms, conditions or provisions of
any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument or obligation to which
Seller Bank is a party, or by which it or any of its
properties or assets may be bound or affected.
3.4. Consents and Approvals. Except for the filing of
applications and notices, as applicable, with the Office of the
Comptroller of the Currency (the "OCC") and the TDFI and approval
of such applications and notices, no consents or approvals of or
filings or registrations with any court, administrative agency or
commission or other governmental authority or instrumentality
(each a "Governmental Entity") or with any third party are
necessary in connection with (a) the execution and delivery by
First Tennessee or Seller Bank of this Agreement and (b) the
consummation by First Tennessee or Seller Bank of the Merger and
the other transactions contemplated hereby.
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3.5. Reports. Seller Bank has timely filed all reports,
registrations and statements, together with any amendments
required to be made with respect thereto, that it was required to
file since December 31, 1995 with (i) the FDIC, (ii) the TDFI and
(iii) any other applicable regulatory organization (collectively,
the "Regulatory Agencies"), and has paid all fees and assessments
due and payable in connection therewith. Except for normal
examinations conducted by a Regulatory Agency in the regular
course of the business of Seller Bank, no Regulatory Agency has
initiated any proceeding or, to the knowledge of First Tennessee,
investigation into the business or operations of Seller Bank
since December 31, 1995. To First Tennessee's knowledge, there is
no unresolved violation, criticism or exception by any Regulatory
Agency with respect to any report or statement relating to any
examination of Seller Bank.
3.6. Financial Statements. Seller Bank has previously
made available to Buyer Bank copies of (a) the unaudited balance
sheet of Seller Bank as of December 31 for fiscal year 1999, and
the related statement of income for fiscal year 1999, and (b) the
unaudited balance sheet of Seller Bank as of October 31, 2000
(the "Most Recent Balance Sheet") and the unaudited statement of
income for the ten month period ended October 31, 2000
(collectively, the "Financial Statements"). The December 31, 1999
balance sheet of Seller Bank fairly presents the financial
position of Seller Bank as of the date thereof, and the other
financial statements referred to in this Section 3.6 fairly
present the results of the operations and financial position of
Seller Bank for the respective fiscal periods or as of the
respective dates therein set forth; and each of such statements
have been prepared in accordance with GAAP consistently applied
during the periods involved, subject to normal recurring year-end
adjustments, lack of footnotes and other presentation items. The
books and records of Seller Bank have been, and are being,
maintained in accordance with GAAP and any other applicable legal
and accounting requirements. Seller Bank has no liability except
for (a) liabilities reflected or reserved against in the
Financial Statements, (b) liabilities which have arisen after the
date of the Most Recent Balance Sheet in the ordinary course of
business and (c) unfunded loan commitments and letters of credit
made in the ordinary course of business.
3.7. Broker's Fees. Neither First Tennessee, Seller
Bank nor any of their respective officers or directors has
employed any broker or finder or incurred any liability for any
broker's fees, commissions or finder's fees in connection with
any of the transactions contemplated by this Agreement.
3.8. Absence of Certain Changes or Events.
(a) Except as may be set forth in Section 3.8(a)
of the Seller Bank Disclosure Schedule, since December 31,
1999 there has been no change or development or combination
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of changes or developments which, individually or in the
aggregate, has had a Material Adverse Effect on Seller Bank.
As used in this Agreement, the term "Material Adverse
Effect" means a material adverse effect on (i) the business,
results of operations or financial condition of a party and
its subsidiaries taken as a whole, other than any such
effect attributable to or resulting from (w) any change in
banking or similar laws, rules or regulations of general
applicability or interpretations thereof by courts or
governmental authorities, (x) any change in GAAP or
regulatory accounting principles applicable to banks,
thrifts or their holding companies generally, or (y) any
action or omission of a party or any subsidiary of a party
taken with the express prior written consent of the other
party hereto, or (ii) the ability of a party and its
subsidiaries to consummate the transactions contemplated
hereby; it being agreed that any matter or circumstance
affecting a party that has had or is reasonably likely to
result in a loss, cost, liability or expense in excess of
$350,000 individually or in the aggregate shall be
considered material for purposes of this Agreement.
(b) Except as set forth in Section 3.8(b) of the
Seller Bank Disclosure Schedule, since December 31, 1999,
Seller Bank has carried on its business in the ordinary
course consistent with its past practices.
(c) Except as set forth in Section 3.8(c) of the
Seller Bank Disclosure Schedule, since December 31, 1999,
Seller Bank has not (i) other than pursuant to certain
agreements for the retention of senior management of Seller
Bank as disclosed to Buyer Bank (collectively, the "Employee
Retention Agreements"), increased the wages, salaries,
compensation, pension or other fringe benefits or
perquisites payable to any executive officer, employee or
director from the amount thereof in effect as of December
31, 1999 (which amounts have been previously disclosed to
Buyer Bank), granted any severance or termination pay,
entered into any contract to make or grant any severance or
termination pay, or paid any bonus except for salary
increases and bonus payments made in the ordinary course of
business consistent with past practices and except for
changes made by First Tennessee to its Employee Benefit
Plans which changes apply to all participants of such
Employee Benefit Plans, (ii) suffered any strike, work
stoppage, slow-down or other labor disturbance, (iii) been a
party to a collective bargaining agreement, contract or
other agreement or understanding with a labor union or
organization, or (iv) had any union organizing activities.
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3.9. Legal Proceedings.
(a) Except as set forth in Section 3.9(a) of the
Seller Bank Disclosure Schedule, Seller Bank is not a party
to any, and there are no pending or, to First Tennessee's
knowledge, threatened, legal, administrative, arbitral or
other proceedings, claims, actions or governmental or
regulatory investigations of any nature against Seller Bank
or challenging the validity or propriety of the transactions
contemplated by this Agreement.
(b) Except as set forth in Section 3.9(b) of the
Seller Bank Disclosure Schedule, there is no injunction,
order, judgment, decree or regulatory restriction imposed
upon Seller Bank or the assets or operations of Seller Bank.
3.10. Taxes.
(a) Except as set forth in Section 3.10(a) of the
Seller Bank Disclosure Schedule, Seller Bank has, directly
or through the filing of consolidated returns of First
Tennessee, (i) duly and timely filed (including applicable
extensions granted without penalty) all Tax Returns (as
hereinafter defined) required to be filed at or prior to the
Effective Time, and, to First Tennessee's knowledge, such
Tax Returns are true and correct, and (ii) paid in full all
Taxes (as hereinafter defined) shown to be due on such Tax
Returns. Except as set forth in Section 3.10(a) of the
Seller Bank Disclosure Schedule, (i) as of the date hereof,
Seller Bank has not requested any extension of time within
which to file any Tax Returns in respect of any fiscal year
which have not since been filed, and no request for waivers
of the time to assess any Taxes are pending or outstanding,
and (ii) as of the date hereof, with respect to each taxable
period of Seller Bank, the federal and state Tax Returns of
Seller Bank have not been audited by the Internal Revenue
Service (the "IRS") or appropriate state tax authorities or
the time for assessing and collecting income Tax with
respect to such taxable period has closed and such taxable
period is not subject to review. The charges, accruals and
reserves with respect to Taxes on the books of Seller Bank
are adequate (determined in accordance with GAAP) and are at
least equal to Seller Bank's liability for Taxes.
(b) For the purposes of this Agreement, "Taxes"
shall mean all taxes, charges, fees, levies, penalties or
other assessments imposed by any United States federal,
state, local or foreign taxing authority, including but not
limited to income, excise, real or personal property, sales,
use, transfer, franchise, payroll, withholding, social
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security or other taxes, including any interest, penalties
or additions attributable thereto. For purposes of this
Agreement, "Tax Return" shall mean any return, report,
information return or other document (including any related
or supporting information) with respect to Taxes.
3.11. Employees and Employee Benefit Plans.
(a) Section 3.11(a) of the Seller Bank Disclosure
Schedule contains a list of all current full-time or part-
time employees or consultants of Seller Bank (the
"Employees") and their current salaries and other
compensation, including bonuses, any special benefits and
other related information.
(b) Section 3.11(b) of the Seller Bank Disclosure
Schedule sets forth a true, complete and correct list (all
of which are collectively referred to as the "Employee
Benefit Plans") of all "employee benefit plans," as defined
in 3(3) of the Employee Retirement Security Act of 1974,
as amended, and the rules and regulations promulgated
thereunder (collectively, "ERISA"), all benefit plans as
defined in 6039D of the Internal Revenue Code of 1986, as
amended, and the rules and regulations promulgated
thereunder (collectively the "Code"), and all other bonus,
incentive compensation, deferred compensation, profit
sharing, stock option, severance, supplemental unemployment,
layoff, salary continuation, retirement, pension, health,
life insurance, disability, group insurance, vacation,
holiday, sick leave, fringe benefit or welfare plan or
employment, consulting, change in control, independent
contractor, professional services, confidentiality or non-
competition agreement or any other similar plan, agreement,
policy or understanding (whether oral or written, qualified
or non-qualified) and any trust, escrow or other funding
arrangement related thereto, (i) which is currently or has
been at any time within the last sixty (60) months
maintained or contributed to by Seller Bank, or (ii) with
respect to which Seller Bank has any liability or
obligations to any current or former officer, Employee, or
service provider of Seller Bank or any ERISA Affiliate (as
herein defined), or the dependents of any thereof,
regardless of whether funded, or (iii) which is maintained
by Seller Bank or any ERISA Affiliate and is subject to
Section 412 of the Code, Section 302 of ERISA or Title IV of
ERISA, or (iv) which could result in the imposition of
liability or any obligation of any kind or nature, whether
accrued, absolute, contingent, direct, indirect, known or
unknown, perfected or inchoate or otherwise and whether or
not now due or to become due, to Seller Bank or an ERISA
Affiliate.
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(c) No accumulated funding deficiency (as defined
in Section 302 of ERISA and Section 412 of the Code) has
been incurred with respect to any Employee Benefit Plan,
whether or not waived. Seller Bank does not now have and
will not have at any time in the future any liability for
security required to be provided to an Employee Benefit Plan
under Section 401(a)(29) of the Code. For each Employee
Benefit Plan that is a "defined benefit plan" (as defined in
Section 414(j) of the Code), the value of the assets of each
such Employee Benefit Plan are sufficient to offset the
plan's accumulated benefit obligations, as described in the
Statement of Financial Accounting Standards No. 87 prepared
by the Financial Accounting Standards Board (the
"Statement").
(d) Except as disclosed on Schedule 3.11(d) of
the Seller Bank Disclosure Schedule, no Employee Benefit
Plan, if subject to Title IV of ERISA, has been completely
or partially terminated. To First Tennessee's knowledge,
the Pension Benefit Guaranty Corporation (the "PBGC") has
not instituted or threatened a proceeding to terminate any
of the Employee Benefit Plans pursuant to Title IV of ERISA,
and no condition or set of circumstances exists which
presents a material risk of termination or partial
termination of any of the Employee Benefit Plans by the
PBGC. None of the Employee Benefit Plans has been the
subject of a reportable event (as defined in Section 4043 of
ERISA) as to which a notice would be required to be filed
with the PBGC. Seller Bank does not now have and will not
at any time in the future have any liability for insurance
premiums due to the PBGC with regard to the Employee Benefit
Plans for any applicable periods ending on or before the
Closing Date.
(e) Seller Bank does not now have and will not at
any time in the future have any liability, including
liability resulting from the transactions contemplated under
this Agreement, (i) for the termination of or withdrawal
from any plan under Sections 4062, 4063, or 4064 of ERISA,
(ii) for any lien imposed under Section 302(f) of ERISA or
Section 412(n) of the Code, (iii) for any interest payments
required under Section 302(e) of ERISA or Section 412(m) of
the Code, (iv) for any excise tax imposed by Section 4971 of
the Code, (v) for any minimum funding contributions under
Section 302(c)(11) of ERISA or Section 412(c)(11) of the
Code, or (vi) for withdrawal from any multi-employer plan
under Section 4201 of ERISA.
(f) Seller Bank has heretofore provided to Buyer
Bank, with respect to each of the Employee Benefit Plans,
true, accurate and complete copies of the following
documents as applicable: (i) the Employee Benefit Plan
document and all amendments, (ii) the actuarial
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report, if
any, for such Employee Benefit Plan for each of the last
three (3) years, (iii) all personnel, payroll and employment
manuals and policies, and (iv) such other documents, records
or other materials related thereto reasonably requested by
Buyer Bank prior to the Closing Date.
(g) To First Tennessee's knowledge, there have
been no prohibited transactions, breaches of fiduciary duty
or other breaches or violations of any law applicable to the
Employee Benefit Plans and related funding arrangements that
could subject Seller Bank to any liability. Each Employee
Benefit Plan intended to be qualified under Section 401(a)
of the Code has a current favorable determination letter
(or, in the case of a standardized form or paired plan, a
favorable opinion or notification letter), and to First
Tennessee's knowledge, no event has occurred which, to the
knowledge of Seller Bank, could cause any Employee Benefit
Plan to become disqualified for purposes of Section 401(a)
of the Code. Each Employee Benefit Plan has been in all
material respects operated in compliance with applicable
law, including Section 401(a) of the Code and ERISA, as
applicable, and in accordance with its terms.
(h) All required reports and tax returns of the
Employee Benefit Plans have been timely filed with the IRS,
the United States Labor Department (the "DOL") and the PBGC.
All required summary plan descriptions, summaries of
material modifications and summary annual reports have been
provided to participants in the Employee Benefit Plans.
(i) There are no pending claims, lawsuits or
actions relating to any Employee Benefit Plan (other than
ordinary course claims for benefits) with respect to Seller
Bank Employees and, to the best knowledge of Seller Bank,
none are threatened.
(j) No written or oral representations have been
made to any Employee or former Employee of Seller Bank
promising or guaranteeing any employer payment or funding,
and no Employee Benefit Plans provide, for the continuation
of medical, dental, life or disability insurance coverage
for any former Employee of Seller Bank for any period of
time beyond the end of the current plan year (except to the
extent of coverage required under Title I, Part 6, of ERISA
("COBRA")). The consummation of the transactions
contemplated by this Agreement will not accelerate the time
of vesting, of payment, or increase the amount, of
compensation to any Employee, officer, former Employee or
former officer of Seller Bank. No Employee Benefit Plans or
other contracts or arrangements provide for payments that
would be triggered by the consummation of the transactions
contemplated by this Agreement that would subject any person
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to excise tax under Section 4999 of the Code (i.e., "golden
parachute" taxes). All compensation amounts that have been
paid or are payable are or will become deductible by Seller
Bank or First Tennessee pursuant to Section 162 of the Code.
(k) Seller Bank has complied with the
continuation coverage provisions of COBRA with respect to
all current Employees and former Employees of Seller Bank.
(l) Seller Bank has not incurred any liability to
the DOL, the PBGC or the IRS in connection with any of the
Employee Benefit Plans, and no condition exists that
presents a risk to Seller Bank of incurring any liability to
the DOL, the PBGC or the IRS.
(m) Seller Bank has paid in full all amounts
which are required under the terms of each Employee Benefit
Plan to have been paid as of the date of this Agreement. As
of the Closing Date, Seller Bank shall have paid in full all
liabilities accrued to it with respect to each Employee or
former Employee of Seller Bank in each Employee Benefit
Plan.
(n) All amounts required under any Employee
Benefit Plan or arrangement that provides for severance
payments to Employees will be paid on or prior to the
completion of the transactions contemplated herein.
(o) For purposes of this Section 3.11, the term
"ERISA Affiliate" shall mean (i) any related company or
trade or business that is required to be aggregated with
Seller Bank or First Tennessee under Code Sections 414(b),
(c), (m) or (o); (ii) any other company, entity or trade or
business that has adopted or has ever participated in any
Employee Benefit Plan; and (iii) any predecessor or
successor company or trade or business of Seller Bank or
First Tennessee or any entity described in 3.11(f)(i) and
(f)(ii).
(p) For purposes of this Section 3.11, the term
"Employee" shall be considered to include individuals
rendering personal services to Seller Bank as independent
contractors and leased employees as defined in Code 414(n)
and the regulations promulgated pursuant thereto.
3.12. Compliance with Applicable Law. Seller Bank
holds, and has at all times held, all licenses, franchises,
permits and authorizations necessary for the lawful conduct of
its business under and pursuant to all, and, to First Tennessee's
knowledge, has complied with and is not in default in any respect
under any, applicable law, statute, order, rule, regulation,
policy and/or guideline of any Governmental Entity relating to
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Seller Bank, and Seller Bank has not received notice of any
violations of any of the above.
3.13. Certain Contracts.
(a) Except as set forth in Section 3.13(a) of the
Seller Bank Disclosure Schedule, Seller Bank is not a party
to or bound by any contract (whether written or oral) (i)
with respect to the employment of any employees, directors
or consultants, or (ii) which, upon the consummation of the
transactions contemplated by this Agreement, will (either
alone or upon the occurrence of any additional acts or
events) result in any payment or benefits (whether of
severance pay or otherwise) becoming due, or the
acceleration or vesting of any rights to any payment or
benefits, from First Tennessee, Seller Bank or any of their
respective subsidiaries or affiliates, or (iii) which is a
material contract that continues in effect after the date of
this Agreement (including data processing, software
programming and licensing contracts regardless of the value
thereof), or (iv) which materially restricts the conduct of
any line of business by Seller Bank or the Surviving Bank.
Each contract, arrangement, commitment or understanding of
the type described in this Section 3.13(a), whether or not
set forth in Section 3.13(a) of the Seller Bank Disclosure
Schedule, is referred to herein as a "Seller Bank Contract."
Seller Bank has previously delivered or made available to
Buyer Bank true and correct copies of each Seller Bank
Contract.
(b) Except as set forth in Section 3.13(b) of the
Seller Bank Disclosure Schedule, (i) each Seller Bank
Contract described in clause (iii) of Section 3.13(a) is
valid and binding and in full force and effect, (ii) Seller
Bank and each of its subsidiaries has performed all
obligations required to be performed by it to date under
each Seller Bank Contract described in clause (iii) of
Section 3.13(a), (iii) to First Tennessee's knowledge, no
event or condition exists which constitutes or, after notice
or lapse of time or both, would constitute, a default on the
part of Seller Bank or any of its subsidiaries under any
Seller Bank Contract described in clause (iii) of Section
3.13(a), and (iv) no other party to any Seller Bank Contract
described in clause (iii) of Section 3.13(a) is, to the
knowledge of First Tennessee, in default in any respect
thereunder.
(c) To the knowledge of First Tennessee, no
employee of Seller Bank is a party to or otherwise bound or
restricted by any agreement or arrangement, including but
not limited to any confidentiality, noncompetition or
proprietary rights agreement, which would (i) prohibit or
affect Buyer Bank's ability to hire such employee or
14
(ii) impose restrictions upon either such employee's provision
of services to Buyer Bank or Buyer Bank's business from and
after the Effective Time.
3.14. Agreements with Regulatory Agencies. Except
as set forth in Section 3.14 of the Seller Bank Disclosure
Schedule, Seller Bank is not subject to any cease-and-desist or
other order issued by, or a party to any written agreement,
consent agreement or memorandum of understanding with, or a party
to any commitment letter or similar undertaking to, or subject to
any order or directive by, or a recipient of any extraordinary
supervisory letter from, and has not adopted any board
resolutions at the request of (each, whether or not set forth on
Section 3.14 of the Seller Bank Disclosure Schedule, a
"Regulatory Agreement"), any Regulatory Agency or other
Governmental Entity that restricts the conduct of its business or
that in any manner relates to its capital adequacy, its credit
policies, its management or its business, nor has Seller Bank
been advised by any Regulatory Agency or other Governmental
Entity that it is considering issuing or requesting any
Regulatory Agreement.
3.15. Environmental Matters. Except as set forth
in Section 3.15 of the Seller Bank Disclosure Schedule:
(a) To the knowledge of First Tennessee, Seller
Bank and each of the Participation Facilities and the Loan
Properties (each as hereinafter defined), are in compliance
with all applicable federal, state and local laws, including
common law, regulations and ordinances, and with all
applicable decrees, orders and contractual obligations
relating to pollution or the discharge of, or exposure to,
Hazardous Materials (as hereinafter defined) in the
environment or workplace (collectively, "Environmental
Laws").
(b) To the knowledge of First Tennessee, there is
no suit, claim, action or proceeding, pending or threatened,
before any Governmental Entity or other forum in which
Seller Bank, any Participation Facility or any Loan Property
has been or, with respect to threatened proceedings, may be,
named as a defendant (x) for alleged noncompliance
(including by any predecessor) with any Environmental Laws,
or (y) relating to the release, threatened release or
exposure to any Hazardous Material, whether or not occurring
at or on a site owned, leased or operated by Seller Bank,
any Participation Facility or any Loan Property.
(c) To the knowledge of First Tennessee, during
the period of (x) Seller Bank's ownership or operation of
any of its current or former properties, (y) Seller Bank's
participation in the management of any Participation.
15
Facility, or (z) Seller Bank's interest in a Loan Property,
there has been no release of Hazardous Materials in, on,
under or affecting any such property. To the knowledge of
First Tennessee, prior to the period of (x) Seller Bank's
ownership or operation of current or former properties, (y)
Seller Bank's participation in the management of any
Participation Facility, or (z) Seller Bank's interest in a
Loan Property, there was no release of Hazardous Materials
in, on, under or affecting any such property, Participation
Facility or Loan Property.
(d) The following definitions apply for purposes
of this Section 3.15: (x) "Hazardous Materials" means any
chemicals, pollutants, contaminants, wastes, toxic
substances, petroleum or other regulated substances or
materials; (y) "Loan Property" means any property in which
Seller Bank holds a security interest, and, where required
by the context, said term means the owner or operator of
such property; and (z) "Participation Facility" means any
facility in which Seller Bank participates in the management
and, where required by the context, said term means the
owner or operator of such property.
3.16. Loan Portfolio.
(a) Except as set forth in Section 3.16 of the
Seller Bank Disclosure Schedule, Seller Bank is not a party
to any written or oral (i) loan agreement, note or borrowing
arrangement (including, without limitation, leases, credit
enhancements, commitments, guarantees and interest-bearing
assets) (collectively, "Loans"), under the terms of which
the obligor was, as of October 31, 2000, over 90 days
delinquent in payment of principal or interest or, to First
Tennessee's knowledge, in default of any other provision, or
(ii) as of October 31, 2000, Loan with any director,
executive officer or five percent or greater shareholder of
Seller Bank, or, to the knowledge of First Tennessee, any
person, corporation or enterprise controlling, controlled by
or under common control with any of the foregoing. Section
3.16 of the Seller Bank Disclosure Schedule sets forth (i)
all of the Loans of Seller Bank that as of October 31, 2000,
were classified by any bank examiner (whether regulatory or
internal) as "Other Loans Especially Mentioned," "Special
Mention," "Substandard," "Doubtful," "Loss," "Classified,"
"Criticized," "Credit Risk Assets," "Concerned Loans,"
"Watch List" or words of similar import, together with the
principal amount of and accrued and unpaid interest on each
such Loan and the identity of the borrower thereunder, (ii)
by category of Loan (i.e., commercial, consumer, etc.), all
of the other Loans of Seller Bank that as of October 31,
2000, were classified as such, together with the aggregate
principal amount of and accrued and unpaid interest on such
Loans by category and (iii) each asset of Seller Bank that,
16
as of October 31, was classified as "Other Real Estate
Owned" and the book value thereof.
(b) To First Tennessee's knowledge, each Loan (i)
is evidenced by notes, agreements or other evidences of
indebtedness which are true, genuine and what they purport
to be, (ii) to the extent secured, has been secured by valid
liens and security interests which have been perfected and
(iii) is the legal, valid and binding obligation of the
obligor named therein, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent
conveyance and other laws of general applicability relating
to or affecting creditors' rights and to general equity
principles.
3.17. Property. Seller Bank has good and marketable
title, free and clear of all liens, encumbrances, mortgages,
pledges, charges, defaults or equitable interests to all of the
properties and assets, real and personal, tangible or intangible,
which are reflected on the balance sheet of Seller Bank as of
December 31, 1999 or acquired after such date, except (i) liens
for taxes not yet due and payable or contested in good faith by
appropriate proceedings, (ii) pledges to secure deposits and
other liens incurred in the ordinary course of business, (iii)
such imperfections of title, easements and encumbrances, if any,
as do not interfere with the use of the respective property as
such property is used on the date of this Agreement or the
marketability thereof, (iv) dispositions and encumbrances of, or
on, such properties or assets in the ordinary course of business
or (v) mechanics', materialmen's, workmen's, repairmen's,
warehousemen's, carrier's and other similar liens and
encumbrances arising in the ordinary course of business. There
are no pending or threatened condemnation proceedings, lawsuits
or administrative actions relating to the real property used by
Seller Bank in its business or any other matters adversely
affecting the current use, occupancy or value thereof, and there
are no outstanding options or rights of first refusal to purchase
such property, or any portion of or interest in such property.
To First Tennessee's knowledge, all leases pursuant to which
Seller Bank as lessee leases real property are valid and
enforceable in accordance with their respective terms, and Seller
Bank is not, nor to the knowledge of First Tennessee, is any
other party thereto, in default thereunder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER BANK
Buyer Bank hereby represents and warrants to First
Tennessee as follows:
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4.1. Corporate Organization. Buyer Bank is a national
banking association validly existing and in good standing under
the NBA. The deposit accounts of Buyer Bank are insured by the
FDIC through the Bank Insurance Fund and the Savings Association
Insurance Fund to the fullest extent permitted by law, and all
premiums and assessments required in connection therewith have
been paid when due. Buyer Bank has the corporate power and
authority to own or lease all of its properties and assets and to
carry on its business as it is now being conducted, and is duly
licensed or qualified to do business in each jurisdiction in
which the nature of the business conducted by it or the character
or location of the properties and assets owned or leased by it
makes such licensing or qualification necessary.
4.2. Authority; No Violation.
(a) Buyer Bank has full corporate power and
authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have
been duly and validly approved by the Board of Directors of
Buyer Bank, and no other corporate proceedings on the part
of Buyer Bank or any shareholder of Buyer Bank are necessary
to approve this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and
validly executed and delivered by Buyer Bank and (assuming
due authorization, execution and delivery by Seller Bank and
First Tennessee) this Agreement constitutes a valid and
binding obligation of Buyer Bank, enforceable against Buyer
Bank in accordance with its terms, except as enforcement may
be limited by general principles of equity whether applied
in a court of law or a court of equity and by bankruptcy,
insolvency and similar laws affecting creditors' rights and
remedies generally.
(b) Neither the execution and delivery of this
Agreement by Buyer Bank, nor the consummation by Buyer Bank
of the transactions contemplated hereby, nor compliance by
Buyer Bank with any of the terms or provisions hereof, will
(i) violate any provision of the articles of association or
bylaws or similar governing documents of Buyer Bank or any
of its subsidiaries or (ii) assuming that the consents and
approvals referred to in Section 3.4 are duly obtained, (x)
violate any statute, code, ordinance, rule, regulation,
judgment, order, writ, decree or injunction applicable to
Buyer Bank or any of its subsidiaries or any of their
respective properties or assets, or (y) violate, conflict
with, result in a breach of any provision of or the loss of
any benefit under, constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a
default) under, result in the termination of or a right of
18
termination or cancellation under, accelerate the
performance required by, or result in the creation of any
lien, pledge, security interest, charge or other encumbrance
upon any of the properties or assets of Buyer Bank or any of
its subsidiaries under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, deed of
trust, license, lease, agreement or other instrument or
obligation to which Buyer Bank or any of its subsidiaries is
a party, or by which they or any of their respective
properties or assets may be bound or affected.
4.3. Consents and Approvals. Except for the filing of
applications and notices, as applicable, with the OCC and TDFI,
and approval of such applications and notices, no consents or
approvals of or filings or registrations with any Governmental
Entity or with any third party are necessary in connection with
(a) the execution and delivery by Buyer Bank of this Agreement
and (b) the consummation by Buyer Bank of the Merger and the
other transactions contemplated hereby.
4.4. Broker's Fees. Neither Buyer Bank nor any
subsidiary or affiliate of Buyer Bank, nor any of their
respective officers or directors, has employed any broker or
finder or incurred any liability for any broker's fees,
commissions or finder's fees in connection with any of the
transactions contemplated by this Agreement.
ARTICLE V
COVENANTS
5.1. Covenants of Seller Bank and First Tennessee.
(a) Relating to Conduct of Business. During the
period from the date of this Agreement and continuing until
the Effective Time, except as expressly permitted by this
Agreement, or with the prior written consent of Buyer Bank,
Seller Bank shall carry on its business in the ordinary
course consistent with past practice. Without limiting the
generality of the foregoing, and except as set forth in
Section 5.1 of the Seller Bank Disclosure Schedule or as
otherwise contemplated by this Agreement or as consented to
in writing by Buyer Bank, Seller Bank shall not and First
Tennessee shall not permit Seller Bank to:
(i) declare or pay any dividends on, or make
other distributions in respect of, any of its
capital stock, other than cash dividends
consistent with past practice as reflected in
Section 5.1(a) of the Disclosure Schedule, but
only to the extent that such cash dividends may be
declared and paid in compliance with applicable
banking laws and regulations;
19
(ii) (I) repurchase, redeem or otherwise
acquire any shares of the capital stock of Seller
Bank, or any securities convertible into or
exercisable for any shares of the capital stock of
Seller Bank, (II) split, combine or reclassify any
shares of its capital stock or issue or authorize
or propose the issuance of any other securities in
respect of, in lieu of or in substitution for
shares of its capital stock, or (III) issue,
deliver or sell, or authorize or propose the
issuance, delivery or sale of, any shares of its
capital stock or any securities convertible into
or exercisable for, or any rights, warrants or
options to acquire, any such shares, or enter into
any agreement with respect to any of the
foregoing;
(iii) amend its charter, bylaws or other
similar governing documents;
(iv) except as may be required with respect
to the fiduciary duties of the Board of Directors
of Seller Bank or First Tennessee, authorize or
permit any of its officers, directors, employees
or agents to directly or indirectly solicit,
initiate, facilitate or encourage any inquiries
relating to, or make any proposal which
constitutes, a "takeover proposal" (as defined
below), or participate in any discussions or
negotiations, or provide third parties with any
nonpublic information, relating to any such
inquiry or proposal or otherwise facilitate any
effort or attempt to make a takeover proposal. As
used in this Agreement, "takeover proposal" shall
mean any tender or exchange offer, proposal for a
merger, consolidation or other business
combination involving Seller Bank or any proposal
or offer to acquire in any manner a substantial
equity interest in or a substantial portion of the
assets of Seller Bank;
(v) make any capital expenditures other than
those which (I) are made in the ordinary course of
business or are necessary to maintain existing
assets in good repair and (II) in any event, other
than expenditures approved in advance by Buyer
Bank, are in an amount of no more than $25,000 in
the aggregate;
(vi) enter into any new line of business;
(vii) acquire or agree to acquire, by
merging or consolidating with, or by purchasing a
20
substantial equity interest in or a substantial
portion of the assets of, or by any other manner,
any business or any corporation, partnership,
association or other business organization or
division thereof or otherwise acquire any assets,
which would be material, individually or in the
aggregate, to Seller Bank, or which could
reasonably be expected to impede or delay
consummation of the Merger, other than in
connection with foreclosures, settlements in lieu
of foreclosure or troubled loan or debt
restructurings in the ordinary course of business
consistent with past practice;
(viii) take any action that is intended or
may reasonably be expected to result in any of its
representations and warranties set forth in this
Agreement being or becoming untrue, or in any of
the conditions to the Merger set forth in Article
VII not being satisfied;
(ix) change its methods of accounting in
effect at December 31, 1999, except as required by
changes in GAAP or regulatory accounting
principles as concurred to by Seller Bank's
auditors;
(x) (I) except as required by applicable law
as required to maintain qualification pursuant to
the Code, or except for changes made by First
Tennessee to its Employee Benefit Plans which
changes apply to all participants of such Employee
Benefit Plans and would not have an adverse effect
on Seller Bank, adopt, amend or terminate any
employee benefit plan (including, without
limitation, any Employee Benefit Plan) or any
agreement, arrangement, plan or policy between
Seller Bank and one or more of its current or
former directors, officers or employees or (II)
except for normal increases in the ordinary course
of business consistent with past practice or
except as required by applicable law, increase in
any manner the compensation or fringe benefits of
any director, officer or employee or pay any
benefit not required by any Plan or agreement in
effect as of the date hereof (including, without
limitation, the granting of stock options, stock
appreciation rights, restricted stock, restricted
stock units or performance units or shares);
(xi) other than activities in the ordinary
course of business consistent with past practice
and the disposition of Seller Bank's Class A-2, FT
Realty Securities Trust Mortgage Pass-Through
21
Certificates, Series 1998-1, sell, lease,
encumber, assign or otherwise dispose of, or agree
to sell, lease, encumber, assign or otherwise
dispose of, any of its material assets, properties
or other rights or agreements;
(xii) other than in the ordinary course
of business consistent with past practice, incur
any indebtedness for borrowed money or assume,
guarantee, endorse or otherwise as an
accommodation become responsible for the
obligations of any other individual, corporation
or other entity;
(xiii) file any application to relocate
or terminate the operations of any banking office;
(xiv) create, renew, amend or terminate
or give notice of a proposed renewal, amendment or
termination of, any material contract, agreement
or lease for goods, services or office space to
which Seller Bank is a party or by which Seller
Bank or its properties is bound, other than the
renewal in the ordinary course of business of any
lease the term of which expires prior to the
Closing Date;
(xv) except as may be required with respect
to the fiduciary duties of the Board of Directors
of Seller Bank or First Tennessee take any action
or enter into any agreement that could reasonably
be expected to jeopardize or materially delay the
receipt of any Requisite Regulatory Approval (as
defined in Section 7.1(a)); or
(xvi) agree or commit to do any of the
foregoing.
(b) Fiduciary Accounts. First Tennessee and
Seller Bank shall use their reasonable best efforts to
facilitate the appointment of Buyer Bank as successor
fiduciary for such persons and accounts for which Seller
Bank acts as a fiduciary, including but not limited to
accounts for which it serves as a trustee, agent, custodian,
personal representative, guardian, conservator or investment
advisor, as Buyer Bank agrees to accept.
(c) Actions with respect to Employee Benefit
Plans.
(i) With respect to any Employee Benefit
Plan in which employees of Seller Bank
participate, if requested by Buyer Bank, prior to
the Effective Time, Seller Bank hereby covenants
and agrees to take all actions necessary, if any,
22
to effect the withdrawal of its participation in
such Employee Benefit Plan.
(ii) With respect to any former employee of
Seller Bank who (including any eligible spouse and
dependent thereof) is currently covered under any
group health plan (as defined in Section 607 of
ERISA) of Seller Bank or First Tennessee or incurs
a qualifying event, as defined by Section 4980B of
the Code or by COBRA, as a result of the
transaction contemplated by this Agreement, or who
incurred a qualifying event prior to the Effective
Time (all such employees together with their
spouses and eligible dependents are referred to
herein as "Qualified Beneficiaries"), First
Tennessee shall be liable for providing notices
and continuation coverage under COBRA and shall
offer such Qualified Beneficiaries continuation
coverage under First Tennessee's group health,
dental or other medical plans to the fullest
extent required by COBRA. Further, with respect
to the Qualified Beneficiaries, First Tennessee
agrees to indemnify and hold Buyer Bank, its
affiliates and their group health plan(s) harmless
in the event (w) Buyer Bank or any affiliate or
their group health plan(s) shall be liable for any
COBRA continuation coverage for any of Seller
Bank's employees (and their eligible dependents)
and/or (x) Buyer Bank or any affiliate or their
group health plan(s) shall be liable for any claim
or liability with respect to COBRA continuation
coverage relating to the Qualified Beneficiaries.
(iii) Except as specifically otherwise
provided herein, First Tennessee and Seller Bank
shall take all actions necessary to ensure that,
as of and after the Effective Time, there shall be
no liabilities or payments due from Seller Bank to
or on account of any Employee Benefit Plan with
respect to which Buyer Bank shall be obligated or
for which Buyer Bank shall have any responsibility
as a result of the consummation of the
transactions contemplated hereby.
(d) Processing. First Tennessee agrees, as of
the Closing, to enter into an agreement with Buyer Bank to
provide data processing services for Buyer Bank, at the
request of Buyer Bank, for up to 120 days after the
Effective Time, at the same cost allocated for such services
by Seller Bank as of the date hereof.
23
5.2. Covenants of Buyer Bank. Except as otherwise
contemplated by this Agreement or consented to in writing by
Seller Bank or First Tennessee, Buyer Bank shall not:
(a) take any action that is intended or may
reasonably be expected to result in any of its
representations and warranties set forth in this Agreement
being or becoming untrue, or in any of the conditions to the
Merger set forth in Article VII not being satisfied;
(b) take any action or enter into any agreement
that could reasonably be expected to jeopardize or
materially delay the receipt of any Requisite Regulatory
Approval (as defined in Section 7.1(a)); or
(c) agree to do any of the foregoing.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1. Regulatory Matters.
(a) The parties hereto shall cooperate with each
other and use their reasonable best efforts to promptly
prepare and file all necessary documentation, to effect all
applications, notices, petitions and filings, and to obtain
as promptly as practicable all permits, consents, approvals
and authorizations of all third parties and Governmental
Entities which are necessary or advisable to consummate the
transactions contemplated by this Agreement (including,
without limitation, the Merger). The parties hereto shall
have the right to review in advance, and, to the extent
practicable, each will consult the other on, in each case
subject to applicable laws relating to the exchange of
information, all information relating to such parties, as
the case may be, and any of their respective subsidiaries,
which appears in any filing made with, or written materials
submitted to, any third party or any Governmental Entity in
connection with the transactions contemplated by this
Agreement. In exercising the foregoing right, each of the
parties hereto shall act reasonably and as promptly as
practicable. The parties hereto agree that they will consult
with each other with respect to the obtaining of all
permits, consents, approvals and authorizations of all third
parties and Governmental Entities necessary or advisable to
consummate the transactions contemplated by this Agreement,
and each party will keep the other apprised of the status of
matters relating to completion of the transactions
contemplated herein.
(b) Each party shall, upon request, furnish each
other party with all information concerning themselves,
24
their subsidiaries, directors, officers and shareholders and
such other matters as may be reasonably necessary or
advisable in connection with any statement, filing, notice
or application made to any Governmental Entity in connection
with the Merger and the other transactions contemplated by
this Agreement.
(c) Each party shall promptly furnish each other
with copies of written communications received by such party
or any of their respective Subsidiaries, Affiliates or
Associates (as such terms are defined in Rule 12b-2 under
the Securities Exchange Act of 1934, as in effect on the
date of this Agreement) from, or delivered by any of the
foregoing to, any Governmental Entity in respect of the
transactions contemplated hereby.
6.2. Access to Information.
(a) Upon reasonable notice and subject to
applicable laws relating to the exchange of information,
each party shall, and shall cause each of its subsidiaries
to, afford to the officers, employees, accountants, counsel
and other representatives of the other party, access, during
normal business hours during the period prior to the
Effective Time, to all of Buyer Bank's or Seller Bank's, as
the case may be, properties, books, contracts, commitments,
records, officers, employees, accountants, counsel and other
representatives and, during such period, it shall, and shall
cause its subsidiaries to, make available to the other party
all information concerning Buyer Bank's or Seller Bank's, as
the case may be, business, properties and personnel as the
other party may reasonably request. Neither party nor any of
its subsidiaries shall be required to provide access to or
to disclose information where such access or disclosure
would violate or prejudice the rights of its customers,
jeopardize any attorney-client privilege or contravene any
law, rule, regulation, order, judgment, decree, fiduciary
duty or binding agreement entered into prior to the date of
this Agreement. The parties hereto will make appropriate
substitute disclosure arrangements under circumstances in
which the restrictions of the preceding sentence apply.
(b) All information furnished be subject to, and
shall be held in confidence in accordance with the
provisions of the letter agreement, dated as of September
20, 2000, as confirmed and accepted by Buyer Bank (the
"Confidentiality Agreement").
(c) No investigation by any of the parties or
their respective representatives shall affect the
representations, warranties, covenants or agreements of the
other set forth herein; provided, however, that if Buyer
25
Bank becomes aware of any facts and circumstances which
would constitute a breach of any of First Tennessee's or
Seller Bank's representations and warranties pursuant to
this Agreement, Buyer Bank agrees to promptly notify First
Tennessee of such facts and circumstances.
6.3. Legal Conditions to Merger. Each of Buyer Bank,
First Tennessee and Seller Bank shall use its reasonable best
efforts (a) to take, or cause to be taken, all actions necessary,
proper or advisable to comply promptly with all legal
requirements which may be imposed on such party or its
subsidiaries with respect to the Merger and, subject to the
conditions set forth in Article VII hereof, to consummate the
transactions contemplated by this Agreement, and (b) to obtain
(and to cooperate with the other party to obtain) any consent,
authorization, order or approval of, or any exemption by, any
Governmental Entity and any other third party which is required
to be obtained by Seller Bank or Buyer Bank or any of their
respective subsidiaries in connection with the Merger and the
other transactions contemplated by this Agreement, and to comply
with the terms and conditions of such consent, authorization,
order or approval.
6.4. Employee Retention Agreements. Seller Bank and
First Tennessee acknowledge that the execution and enforceability
of the Employee Retention Agreements were an inducement to Buyer
Bank's willingness to proceed with the Merger, and First
Tennessee agrees to fully perform its obligations thereunder as
and when required under the terms of such Employee Retention
Agreements.
6.5. Additional Agreements. In case at any time after
the Effective Time any further action is necessary or desirable
to carry out the purposes of this Agreement or to vest the
Surviving Bank with full title to all properties, assets, rights,
approvals, immunities and franchises of any of the parties to the
Merger, the proper officers and directors of each party to this
Agreement and their respective subsidiaries shall take all such
necessary action as may be reasonably requested by the other
party, all at the sole cost and expense of the requesting party.
ARTICLE VII
CONDITIONS PRECEDENT
7.1. Conditions to Each Party's Obligation To Effect
the Merger. The respective obligation of each party to effect the
Merger shall be subject to the satisfaction at or prior to the
Effective Time of the following conditions:
(a) Other Approvals. All regulatory approvals
required to consummate the transactions contemplated hereby
26
(including the Merger) shall have been obtained and shall
remain in full force and effect and all statutory waiting
periods in respect thereof shall have expired (all such
approvals and the expiration of all such waiting periods
being referred to herein as the "Requisite Regulatory
Approvals").
(b) No Injunctions or Restraints; Illegality. No
order, injunction or decree issued by any court or agency of
competent jurisdiction or other legal restraint or
prohibition (an "Injunction") preventing the consummation of
the Merger shall be in effect or credibly threatened. No
statute, rule, regulation, order, injunction or decree shall
have been enacted, entered, promulgated or enforced by any
Governmental Entity which prohibits, restricts or makes
illegal consummation of the Merger, and no Governmental
Entity shall have imposed or credibly threatened any
condition or limitation with respect to any approval or
acquiescence relating to the Merger, which condition or
limitation, in Buyer Bank's reasonable judgment, would
materially adversely affect the Surviving Bank.
(c) First Tennessee Board Approval. First
Tennessee's Board of Directors or its designee shall have
approved this Agreement and the Merger.
7.2. Conditions to Obligations of Buyer Bank. The
obligation of Buyer Bank to effect the Merger is also subject to
the satisfaction or waiver by Buyer Bank at or prior to the
Effective Time of the following conditions:
(a) Representations and Warranties. (i) Except
for breaches which would not have a Material Adverse Effect,
the representations and warranties of First Tennessee set
forth in this Agreement shall be true and correct as of the
date of this Agreement and (except to the extent such
representations and warranties speak only as of an earlier
date) as of the Closing Date as though made on and as of the
Closing Date. Buyer Bank shall have received a certificate
signed on behalf of First Tennessee by a duly authorized
officer of First Tennessee to the foregoing effect.
(b) Performance of Obligations of First Tennessee
and Seller Bank. First Tennessee and Seller Bank shall have
each performed in all material respects all obligations
required to be performed by each of them under this
Agreement at or prior to the Closing Date, and Buyer Bank
shall have received a certificate signed on behalf of each
of First Tennessee and Seller Bank by a duly authorized
officer of each to such effect.
27
(c) No Pending Governmental Actions. No
proceeding initiated by any Governmental Entity seeking an
Injunction shall be pending or credibly threatened.
(d) Employment Agreements. Buyer Bank shall have
entered into employment agreements, on terms satisfactory to
Buyer Bank in its sole discretion, with such members of
Seller Bank's senior management as are listed on Schedule
7.2(d) attached hereto.
7.3. Conditions to Obligations of Seller Bank. The
obligation of Seller Bank to effect the Merger is also subject to
the satisfaction or waiver by Seller Bank at or prior to the
Effective Time of the following conditions:
(a) Representations and Warranties. Except for
breaches which would not have a Material Adverse Effect, the
representations and warranties of Buyer Bank set forth in
this Agreement shall be true and correct as of the date of
this Agreement and (except to the extent such
representations and warranties speak as of an earlier date)
as of the Closing Date as though made on and as of the
Closing Date. Seller Bank shall have received a certificate
signed on behalf of Buyer Bank by an executive officer of
Buyer Bank to the foregoing effect.
(b) Performance of Obligations of Buyer Bank.
Buyer Bank shall have performed in all material respects all
obligations required to be performed by it under this
Agreement at or prior to the Closing Date, and Seller Bank
shall have received a certificate signed on behalf of Buyer
Bank by an executive officer of Buyer Bank to such effect.
(c) No Pending Governmental Actions. No proceeding
initiated by any Governmental Entity seeking an Injunction shall
be pending or credibly threatened.
ARTICLE VIII
TERMINATION AND AMENDMENT
8.1. Termination. This Agreement may be terminated at
any time prior to the Effective Time as follows:
(a) By mutual consent of Buyer Bank, First
Tennessee and Seller Bank in a written instrument;
(b) by either Buyer Bank on one hand, or First
Tennessee or Seller Bank on the other hand, if the Merger
shall not have been consummated on or before March 31, 2001,
28
unless the failure of the Closing to occur by such date
shall be due to the failure of the party seeking to
terminate this Agreement to perform or observe the covenants
and agreements of such party set forth herein; or
(c) by either Buyer Bank on one hand, or First
Tennessee or Seller Bank on the other hand (provided that
the terminating party is not then in material breach of any
representation, warranty, covenant or other agreement
contained herein) if there shall have been a material breach
of any of the representations, warranties or covenants set
forth in this Agreement on the part of the other party,
which breach is not cured within 30 days following written
notice to the party committing such breach, or which breach,
by its nature, cannot be cured prior to the Closing.
8.2. Effect of Termination. In the event of termination
of this Agreement as provided in Section 8.1, this Agreement
shall forthwith become void and have no effect except (i)
Sections 6.2(b), 8.2 and 9.3 shall survive any termination of
this Agreement and (ii) notwithstanding anything to the contrary
contained in this Agreement, no party shall be relieved or
released from any liabilities or damages arising out of its
breach of any provision of this Agreement.
8.3. Amendment. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of
the parties hereto.
8.4. Extension; Waiver. At any time prior to the
Effective Time, each of the parties hereto, by action taken or
authorized by its Board of Directors, may, to the extent legally
allowed, (a) extend the time for the performance of any of the
obligations or other acts of the other party hereto, (b) waive
any inaccuracies in the representations and warranties of the
other party contained herein or in any document delivered
pursuant hereto and (c) waive compliance with any of the
agreements or conditions of the other party contained herein. Any
agreement on the part of a party hereto to any such extension or
waiver shall be valid only if set forth in a written instrument
signed on behalf of such party, but such extension or waiver or
failure to insist on strict compliance with an obligation,
covenant, agreement or condition shall not operate as a waiver
of, or estoppel with respect to, any subsequent or other failure.
ARTICLE IX
GENERAL PROVISIONS
9.1. Closing. Subject to the terms and conditions of
this Agreement, the closing of the Merger (the "Closing") will
take place at 10:00 a.m. on the first day which is (a) the last
business day of month and (b) at least two business days after
29
the satisfaction or waiver (subject to applicable law) of the
latest to occur of the conditions set forth in Article VII hereof
(other than those conditions which relate to actions to be taken
at the Closing) (the "Closing Date"), or at such time, date and
place as is agreed to by the parties hereto.
9.2. Indemnification.
(a) By First Tennessee. First Tennessee agrees
to indemnify, save and hold Buyer Bank and its officers,
directors, employees, agents, affiliates, successors and
permitted assigns (collectively, the "Buyer Bank
Indemnitees"), harmless against and from, and will reimburse
the Buyer Bank Indemnitees on demand for, any liability,
demands, claims, actions or causes of action, assessments,
losses, fines, penalties, costs, damages and expenses,
including reasonable attorneys' fees, disbursements and
expenses (collectively, "Damages"), sustained or incurred by
any of the Buyer Bank Indemnitees at any time after the
Effective Time as a result of, arising out of or by virtue
of any misrepresentation, breach of any warranty or
representation, or non-fulfillment of any agreement or
covenant on the part of First Tennessee or Seller Bank,
whether contained in this Agreement or any Exhibit or
Schedule hereto, or any written statement or certificate
furnished or to be furnished to Buyer Bank pursuant hereto
or in any closing document delivered by First Tennessee or
Seller Bank to Buyer Bank in connection herewith.
(b) By Buyer Bank. Buyer Bank agrees to
indemnify, save and hold First Tennessee, Seller Bank and
each of their respective officers, directors, employees,
agents, affiliates, successors and permitted assigns
(collectively, the "Seller Bank Indemnitees"), harmless
against and from, and will reimburse the Seller Bank
Indemnitees on demand for, any Damages sustained or incurred
by any of the Seller Bank Indemnitees at any time after the
Effective Time as a result of, arising out of or by virtue
of any misrepresentation, breach of any warranty or
representation or nonfulfillment of any agreement or
covenant on the part of Buyer Bank, whether contained in
this Agreement or any Exhibit or Schedule hereto, or any
written statement or certificate furnished or to be
furnished to First Tennessee or Seller Bank pursuant hereto
or in any closing document delivered by Buyer Bank to First
Tennessee or Seller Bank in connection herewith.
(c) Notice. In the event a Buyer Bank Indemnitee
or Seller Bank Indemnitee (each, an "Indemnitee") discovers
any claim or potential liability for which indemnification
is provided herein, such Indemnitee shall give prompt
30
written notice to First Tennessee in the case of a Buyer
Bank Indemnitee, or to Buyer Bank in the case of a Seller
Bank Indemnitee (each the "Indemnitor"), stating the nature
and basis of said claims and the amount thereof, to the
extent known. The failure to give such notice promptly
shall affect the Indemnitee's rights to indemnification only
to the extent such failure (i) actually materially adversely
affects the Indemnitor or its rights hereunder, or (ii)
results in a failure to give notice of such claim for
indemnification prior to the expiration of the survival
period to which such claim relates, as set forth in Section
9.2(f) hereof.
(d) Third Party Claims.
(i) Promptly following the receipt by an
Indemnitee of written notice of a demand, claim,
action, assessment or proceeding made or brought by a
third party, including a governmental agency (a "Third
Party Claim"), the Indemnitee receiving such notice of
the Third Party Claim (a) shall promptly notify the
Indemnitor of its existence, setting forth the facts
and circumstances of which such Indemnitee has received
notice, and (b) if the Indemnitee giving such notice is
a person entitled to indemnification under this Article
IX (an "Indemnified Party"), such Indemnified Party
shall specify in such notice the basis hereunder upon
which the Indemnified Party's claim for indemnification
is asserted.
(ii) The Indemnified Party shall, upon
reasonable request by the Indemnitor, tender the
defense of a Third Party Claim to the Indemnitor. If
the Indemnitor accepts responsibility for the defense
of a Third Party Claim, then the Indemnitor shall have
the exclusive right to contest, defend and litigate the
Third Party Claim and will not be liable to an
Indemnified Party for any fees of other counsel or any
other expenses with respect to the defense of such
proceeding which are incurred by the Indemnified
Person, other than fees incurred prior to the
acceptance of the defense of such Third Party Claims by
the Indemnitor. The Indemnitor shall have the
exclusive right, in its discretion exercised in good
faith and upon the advice of counsel, to settle any
such matter, either before or after the initiation of
litigation, at such time and upon such terms as it
deems fair and reasonable, provided that at least ten
days prior to any such settlement, it shall give
written notice of its intention to settle to the
Indemnified Party. Any such settlement or release
shall specifically name the Indemnified Party as a
released party. The Indemnified Party shall have the
31
right to be represented by counsel at its own expense
in any defense conducted by the Indemnitor. The
Indemnified Party shall provide access to the
Indemnitor with respect to any records in the
possession of the Indemnified Party which pertain to
the Third Party Claim and shall cooperate in such other
manner as the Indemnitor may reasonably request,
including, but not limited to, making employees
available for deposition or trial. Indemnitor shall be
liable for any direct out-of-pocket costs with respect
to any such cooperation provided by the Indemnified
Party.
(iii) If, in accordance with the
foregoing provisions of this Section 9.2, an
Indemnified Party shall be entitled to indemnification
against a Third Party Claim, and if the Indemnitor
shall fail to accept the defense of a Third Party Claim
that has been tendered in accordance with this Section
9.2, the Indemnified Party shall have the right,
without prejudice to its right of indemnification
hereunder, in its discretion exercised in good faith
and upon the advice of counsel, to contest, defend and
litigate such Third Party Claim, and may settle such
Third Party Claim, either before or after the
initiation of litigation, at such time and upon such
terms as the Indemnified Party deems fair and
reasonable, provided at least ten days prior to any
such settlement, written notice of its intention to
settle is given to the Indemnitor. If, pursuant to
this Section 9.2, the Indemnified Party so defends or
settles a Third Party Claim for which it is entitled to
indemnification hereunder, the Indemnified Party shall
be reimbursed by the Indemnitor for the amount of any
settlement or judgment paid and reasonable attorneys'
fees and other expenses of defending the Third Party
Claim that were incurred, immediately following the
presentation to the Indemnitor of itemized bills for
said attorneys' fees and other expenses. No failure by
the Indemnitor to acknowledge in writing its
indemnification obligations under this Article IX shall
relieve it of such obligations to the extent they
exist.
(iv) Notwithstanding the foregoing, in
connection with any settlement negotiated by the
Indemnitor, no Indemnified Party shall be required to
(a) enter into any settlement (I) that does not include
the delivery by the claimant or plaintiff to the
Indemnified Party of a release from all liability in
respect of such claim or litigation, or (II) if the
Indemnified Party shall, in writing to the Indemnitor
within the ten day period prior to such proposed
settlement, disapprove of such settlement proposal
(which settlement proposal will not be unreasonably
32
disapproved) and indicate a desire to have the
Indemnitor tender the defense of such matter back to
the Indemnified Party, or (b) consent to the entry of
any judgment that does not include a full dismissal of
the litigation or proceeding against the Indemnified
Party with prejudice; provided, however, that should
the Indemnified Party disapprove of a settlement
proposal pursuant to Clause (II) above, the Indemnified
Party shall thereafter have all of the responsibility
for defending, contesting and settling such Third Party
Claim, but shall not be entitled to indemnification by
the Indemnitor to the extent that, upon final
resolution of such Third Party Claim, the Indemnitor's
liability to the Indemnified Party exceeds what the
Indemnitor's liability to the Indemnified Party would
have been if the Indemnitor were permitted to settle
such Third Party Claim in the absence of the
Indemnified Party exercising its right under Clause
(II) above.
(e) Limitations. Each Indemnified Party shall be
entitled to indemnification from the Indemnitor only in the
event that the Damages incurred or suffered by such
Indemnified Party exceed $350,000 in the aggregate.
Notwithstanding the foregoing, First Tennessee shall
indemnify the Indemnified Parties for any and all Damages
arising from any breach of the representations and
warranties related to First Tennessee's ownership of all of
the issued and outstanding stock of Seller Bank (as set
forth in Section 3.2(a)), without regard to whether the
Damages incurred or suffered by the Indemnified Parties
exceed $350,000 in the aggregate. Each Indemnitor's
liability with respect to Damages incurred by an Indemnitee
shall not exceed $1,000,000 in the aggregate.
(f) Survival. All representations, warranties,
agreements and covenants, and the agreements to indemnify
set forth in this Article IX with respect to such
representations, warranties, agreements and covenants, shall
survive and continue for, and all claims with respect
thereto must be made prior to the end of, one year from the
Closing Date, except for (i) claims with respect to breaches
of the representations and warranties related to First
Tennessee's ownership of all of the issued and outstanding
stock of Seller Bank (as set forth in Section 3.2(a)),
Authority (Section 3.3(a)), Taxes (Section 3.10) and
Employee Benefit Plans (Sections 3.11 and 5.1(c)), all of
which shall survive until the later of one year from the
Closing Date or such time as any potential claim against a
Buyer Bank Indemnified Party is time barred by applicable
law, and (ii) indemnities for which an indemnification claim
shall be pending as of the end of the applicable period
33
referred to above, in which event such indemnities shall
survive with respect to such claim until the final
disposition thereof.
(g) Non-Exclusive Remedy. Notwithstanding the
foregoing, the indemnification provisions in this Article IX
are in addition to, and not in derogation of, any equitable
remedy or claim for common law fraud any party hereto may
have for breach of representations, warranties or covenants.
9.3. Expenses. All costs and expenses incurred in
connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such costs and
expenses.
9.4. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given on the
date of its receipt by the party to be so notified if delivered
personally, telecopied (with confirmation), mailed by registered
or certified mail (return receipt requested) or delivered by an
express courier (with confirmation) to the parties at the
following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to Buyer Bank, to:
First Farmers and Merchants Bank of Columbia,
Columbia, Tennessee
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to (which shall not constitute
notice):
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
A Professional Limited Liability Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
34
(b) if to First Tennessee or Seller Bank, to:
First Tennessee National Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to (which shall not constitute
notice):
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
First Tennessee National Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C.
20th Floor, First Tennessee Building
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
9.5. Interpretation. When a reference is made in this
Agreement to Sections, Exhibits or Schedules, such reference
shall be to a Section of or Exhibit or Schedule to this Agreement
unless otherwise indicated. The headings contained in this
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement. Whenever
the words "include", "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words
"without limitation".
9.6. Counterparts. This Agreement may be executed in
counterparts, all of which shall be considered one and the same
agreement, and shall become effective when counterparts have been
signed by each of the parties and delivered to the other parties,
it being understood that all parties need not sign the same
counterpart.
9.7. Entire Agreement. This Agreement (including the
documents and the instruments referred to herein) constitutes the
entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with
respect to the subject matter hereof, other than the
Confidentiality Agreement.
35
9.8. Governing Law. This Agreement shall be governed
and construed in accordance with the laws of the State of
Tennessee applicable to contracts made and to be performed wholly
within such state, without regard to the conflicts of law
principles thereof.
9.9. Enforcement of Agreement. The parties hereto agree
that irreparable damage would occur in the event that the
provisions contained in 6.2(b) of this Agreement were not
performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties
shall be entitled to an injunction or injunctions to prevent
breaches of Section 6.2(b) of this Agreement and to enforce
specifically the terms and provisions thereof in any court of the
United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or
in equity.
9.10. Severability. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction
shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability, without rendering invalid or
unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of
the terms or provisions of this Agreement in any other
jurisdiction. If any provision of this Agreement is so broad as
to be unenforceable, the provision shall be interpreted to be
only so broad as is enforceable.
9.11. Publicity. Except as required in the opinion
of counsel of the party seeking to disclose by applicable law or
the rules of any national securities exchange on which a party's
securities are listed, no party shall issue or cause the
publication of any press release or other public announcement
with respect to, or otherwise make any public statement
concerning, the transactions contemplated by this Agreement
without the consent of the other parties, which consent shall not
be unreasonably withheld.
9.12. Assignment; Third Party Beneficiaries.
Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties. Subject to the
preceding sentence, this Agreement shall be binding upon, inure
to the benefit of and be enforceable by the parties and their
respective successors and assigns. Except as otherwise expressly
provided herein, this Agreement (including the documents and
instruments referred to herein) is not intended to confer upon
any person other than the parties hereto any rights or remedies
hereunder.
The remainder of this page is intentionally left blank
36
IN WITNESS WHEREOF, Buyer Bank, First Tennessee and
Seller Bank have caused this Agreement to be executed by their
respective officers thereunto duly authorized as of the date
first above written.
FIRST FARMERS AND MERCHANTS NATIONAL
BANK OF COLUMBIA, COLUMBIA, TENNESSEE
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman and Chief Executive Officer
FIRST TENNESSEE NATIONAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Senior Vice President, Corporate Development
PEOPLES AND UNION BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer
37