EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION
DATED DECEMBER 26, 2001
BETWEEN
FIRST LAND AND INVESTMENT COMPANY
AND
BANCORPSOUTH, INC.
TABLE OF CONTENTS
PAGE
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ARTICLE 1 TRANSFER OF ASSETS; CONSIDERATION; CLOSING................................................... 1
1.1 Transfer of Assets........................................................................... 1
1.2 Liabilities.................................................................................. 1
1.3 Consideration for Transfer................................................................... 2
1.4 Expenses..................................................................................... 2
1.5 Transfer Taxes............................................................................... 2
1.6 Further Acts and Assurances.................................................................. 2
1.7 Closing...................................................................................... 2
1.8 Purchaser to Make Shares Available........................................................... 3
1.9 Tax Treatment................................................................................ 3
1.10 Dissolution of Seller........................................................................ 3
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF SELLER..................................................... 3
2.1 Organization................................................................................. 3
2.2 Authority.................................................................................... 3
2.3 Subsidiaries................................................................................. 4
2.4 Title to Assets.............................................................................. 4
2.5 Substantially All of the Assets.............................................................. 4
2.6 Type of Assets............................................................................... 4
2.7 Absence of Undisclosed Liabilities........................................................... 4
2.8 Contracts.................................................................................... 4
2.9 Defaults..................................................................................... 4
2.10 Environmental Matters........................................................................ 5
2.11 Litigation................................................................................... 5
2.12 Compliance with Law.......................................................................... 5
2.13 Taxes........................................................................................ 6
2.14 Employment Matters........................................................................... 6
2.15 Consent and Approvals........................................................................ 7
2.16 Seller Information........................................................................... 7
2.17 No Untrue or Inaccurate Representation or Warranty........................................... 7
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF PURCHASER.................................................. 7
3.1 Organization and Standing of Purchaser....................................................... 7
3.2 Authority of Purchaser....................................................................... 7
3.3 SEC Reports.................................................................................. 8
3.4 Purchaser Information........................................................................ 8
3.5 No Untrue or Inaccurate Representation or Warranty........................................... 8
3.6 Tax Representations.......................................................................... 8
ARTICLE 4 COVENANTS OF PURCHASER....................................................................... 9
4.1 Corporate Action............................................................................. 9
4.2 Confidential Handling of Documents........................................................... 9
4.3 Conduct of Business.......................................................................... 9
ARTICLE 5 COVENANTS OF SELLER.......................................................................... 9
5.1 Access and Information....................................................................... 9
5.2 Conduct of Business......................................................................... 10
5.3 Best Efforts to Secure Consents............................................................. 11
5.4 Unusual Events.............................................................................. 11
5.5 Press Releases.............................................................................. 11
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ARTICLE 6 ADDITIONAL AGREEMENTS....................................................................... 11
6.1 Regulatory Matters.......................................................................... 11
6.2 Shareholder Meeting......................................................................... 12
6.3 Legal Conditions............................................................................ 12
6.4 Stock Exchange Listing...................................................................... 12
6.5 Affiliates.................................................................................. 12
ARTICLE 7 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF EACH PARTY....................................... 13
7.1 Shareholder Approval........................................................................ 13
7.2 Listing of Shares........................................................................... 13
7.3 Other Approvals............................................................................. 13
7.4 S-4......................................................................................... 13
7.5 No Injunctions or Restraints; Illegality.................................................... 13
ARTICLE 8 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER........................................... 13
8.1 Representations and Warranties True......................................................... 13
8.2 Performance of Obligations of Purchaser..................................................... 13
8.3 Other Deliveries............................................................................ 14
8.4 Proceedings and Documents Satisfactory...................................................... 14
8.5 Fairness Opinion............................................................................ 14
8.6 Sale of Real Estate and Mineral Rights...................................................... 14
8.7 Tax Opinion................................................................................. 14
8.8 Dissenting Shares........................................................................... 14
ARTICLE 9 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PURCHASER........................................ 14
9.1 Representations and Warranties True......................................................... 14
9.2 Performance of Obligations of Seller........................................................ 14
9.3 Completion of Due Diligence Review.......................................................... 15
9.4 Board of Director Approval.................................................................. 15
9.5 ▇▇▇▇ of Sale................................................................................ 15
9.6 Other Deliveries............................................................................ 15
9.7 Proceedings and Documents Satisfactory...................................................... 15
9.8 No Adverse Change........................................................................... 15
9.9 Sale of Real Estate and Mineral Rights...................................................... 15
9.10 Loan Payoff................................................................................. 15
9.11 Dissenting Shares........................................................................... 15
ARTICLE 10 TERMINATION................................................................................. 15
10.1 Termination................................................................................. 15
10.2 Effect of Termination....................................................................... 17
ARTICLE 11 INDEMNIFICATION............................................................................. 17
ARTICLE 12 MISCELLANEOUS............................................................................... 17
12.1 Notices..................................................................................... 17
12.2 Entire Agreement............................................................................ 18
12.3 Governing Law............................................................................... 18
12.4 Section Headings............................................................................ 18
12.5 Waiver...................................................................................... 18
12.6 Exhibits.................................................................................... 18
12.7 Assignment.................................................................................. 18
12.8 Plain Meaning............................................................................... 18
12.9 Counterparts................................................................................ 18
12.10 Severability.................................................................................18
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AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement"), dated as of
December 26, 2001, between FIRST LAND AND INVESTMENT COMPANY, an Arkansas
corporation ("Seller"), and BANCORPSOUTH, INC., a Mississippi corporation
("Purchaser").
RECITAL:
WHEREAS, Seller is a corporation which owns the securities, cash,
furniture, fixtures and office equipment (collectively, the "Assets") used in
connection with its business (the "Business");
WHEREAS, Seller is a shareholder of Purchaser;
WHEREAS, Seller desires to transfer and Purchaser desires to acquire
the Assets (except for certain excluded assets as set forth herein), in exchange
for the issuance and delivery by Purchaser to Seller of certain shares of common
stock of Purchaser, with such shares to be further distributed by Seller to the
shareholders of Seller in complete liquidation and dissolution of Seller, all
upon terms and conditions hereinafter set forth; and
WHEREAS, for federal income tax purposes, it is intended that the
transactions provided for herein shall qualify as a reorganization ("the
Reorganization") within the meaning of Section 368(a)(1)(C) of the Internal
Revenue Code of 1986, as amended (the "Code").
The parties hereby agree as follows:
ARTICLE 1
TRANSFER OF ASSETS; CONSIDERATION; CLOSING
1.1 Transfer of Assets
(a) Upon the terms of this Agreement and based upon the
representations, warranties and agreements made herein by each of the parties to
the other, on the Closing Date (as defined below), Seller shall transfer and
Purchaser shall acquire all securities, cash, furniture, fixtures and office
equipment owned by Seller and utilized in the Business, as described in Schedule
1.1(a)(i) (the "Schedule of Assets"); provided, however, Seller shall not
transfer and Purchaser shall not acquire title to any of the excluded assets set
forth on Schedule 1.1(a)(ii), consisting of the real estate (the "Real Estate")
and the mineral rights (the "Mineral Rights") described therein; and
(b) In lieu of acquiring the Real Estate and the Mineral
Rights, prior to Closing, Seller intends to sell to one or more third parties
all of the Real Estate and the Mineral Rights and to transfer to Purchaser the
net proceeds of such sale or sales remaining after satisfaction of or provision
for all liabilities, claims and obligations of Seller; and
(c) Seller shall execute and deliver to Purchaser a ▇▇▇▇
of Sale in the form of Exhibit 1.1(c).
1.2 Liabilities. Seller has no liabilities, claims or obligations
(whether accrued, absolute, contingent or otherwise) related to the Business or
the Assets other than those set forth on Schedule 1.2 (the "Schedule of
Liabilities"). The Assets shall be sold free and clear of all liabilities,
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liens, charges and encumbrances. Purchaser shall not assume any liability or
obligation of Seller, fixed or contingent, disclosed or undisclosed, at the
closing of the transactions contemplated hereby or otherwise. Seller agrees to
satisfy, at or before the Closing (as defined below) all liabilities,
indebtedness and obligations related to the Assets and to have all liens related
to the Assets released. Notwithstanding the foregoing, the shareholders of
Seller (each a "Shareholder" and, collectively, the "Shareholders") will have
the right of dissent from the transactions proposed herein under Sections
4-27-1301, et seq., of the Arkansas Business Corporation Act of 1987 (the
"ABCA"); in the event one or more Shareholders dissents, the payments such
Shareholders may be entitled to receive may not be known or satisfied prior to
the Closing. Notwithstanding the foregoing, Seller shall be responsible for
making any and all payments which such dissenting shareholders shall be entitled
to receive.
1.3 Consideration for Transfer. The purchase price for the Assets
(the "Purchase Price") paid to Seller shall be that number of shares of Common
Stock, $2.50 par value per share, of Purchaser (the "Common Stock") determined
according to the following formula:
(I) (a) The market value of 433,593 shares of Common Stock,
determined by the average of the high and low prices of the
Common Stock on the New York Stock Exchange (the "NYSE") on
the trading day preceding the Closing Date, plus (b) all cash
held by Seller as of the Closing Date, less (c) cash
necessary to pay any and all known liabilities of Seller,
including without limitation (i) all income taxes accrued or
owed by Seller, (ii) all legal, accounting, NYSE listing and
other expenses relating to the transactions contemplated
hereby incurred by either Seller or Buyer, (iii) all amounts
reserved to pay dissenting shareholders and expenses relating
to dissenting shareholders, and (iv) all amounts reserved to
pay fractional shares upon distribution of the Common Stock
to the Shareholders, less (d) the sum of $500,000 all divided
by (II) the market value of a share of the Common Stock
determined by the average of the high and low prices of the
Common Stock on the NYSE on the trading day preceding the
Closing Date.
1.4 Expenses. All expenses of Purchaser in connection with this
Agreement or the transactions provided for hereby shall be borne by Seller,
whether or not such transactions are consummated.
1.5 Transfer Taxes. Seller shall be responsible for any
documentary transfer taxes and any sales, use or other taxes imposed by reason
of the transfer of the Assets, the fees and costs of recording or filing all
applicable conveyancing instruments necessary to transfer the Assets and any
transfer taxes, costs or fees by reason of the issuance of the shares of Common
Stock pursuant to Section 1.3.
1.6 Further Acts and Assurances. Seller shall, at any time and
from time to time at and after the Closing, upon the request of Purchaser, take
any and all steps necessary to place Purchaser in possession and operating
control of the Assets to be transferred hereunder, and will do, execute,
acknowledge and deliver, or will cause to be done, executed, acknowledged and
delivered, all such further acts, deeds, assignments, transfers, conveyances,
powers of attorney and assurances as may be required for the better transferring
and confirming to Purchaser or to its successors or assigns, or for reducing to
possession, any or all of the Assets.
1.7 Closing. Subject to the terms and conditions of this
Agreement, the transfer, acquisition and other activities provided for herein
(the "Closing") shall take place at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇, PLLC, on or before April 30, 2002 (the "Closing Date") or such other
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time, date and place as the parties shall mutually agree. The Closing will not
take place between the record date and the payable date for any dividend
declared by Purchaser.
1.8 Purchaser to Make Shares Available. On the Closing Date,
Purchaser shall deliver to Seller certificates representing the shares of Common
Stock and cash in lieu of fractional shares to be paid pursuant to Section 1.3.
Notwithstanding anything to the contrary contained herein, no certificate
representing a fractional share of Common Stock shall be issued hereunder, no
dividend or distribution with respect to Common Stock shall be payable on or
with respect to the fractional share, and such fractional share interest shall
not entitle the owner thereof to vote or to any other rights of a shareholder of
Purchaser. In lieu of the issuance of any such fractional share, Purchaser shall
pay to Seller an amount in cash equal to the product of (x) the market value of
a share of the Common Stock determined in accordance with Section 1.3 and (y)
the fraction of a share of Common Stock which Seller would otherwise be entitled
to receive pursuant to this Article 1.
1.9 Tax Treatment. Purchaser and Seller intend that the
transactions contemplated by this Agreement be treated for tax purposes as a
reorganization under Section 368(a)(1)(C) of the Code and that this Agreement
shall constitute a "plan or reorganization" for the purposes of Section 368(a)
of the Code. Purchaser does not make any representation or warranty with respect
to the transactions contemplated by this Agreement qualifying as a
reorganization under Section 368(a)(1)(C) of the Code, nor with respect to the
tax consequences of such transactions.
1.10 Dissolution of Seller. Approval of this Agreement by the
Shareholders shall constitute (i) adoption of a plan of reorganization meeting
the requirements of Section 368(a) of the Code (the "Plan of Reorganization"),
(ii) approval of the sale of all of the Real Estate and Mineral Rights, and
(iii) approval of the dissolution of Seller. Pursuant to this Plan of
Reorganization, Seller will take all steps necessary or appropriate so that the
dissolution of Seller pursuant to the laws of the State of Arkansas will occur
as soon as practicable after the Closing (and in any event within 120 days after
the Closing Date). At the conclusion of the Reorganization pursuant to the Plan
of Reorganization, (i) any assets of Seller that have not been conveyed to
Purchaser hereunder shall be distributed to the Shareholders in accordance with
their respective interests and applicable law, including Section 368 of the
Code, and Seller shall be responsible for filing any and all final tax returns
of Seller and for paying any liabilities associated therewith.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER
As of the date hereof and, when read in light of any Schedules that are
to be provided in accordance with the provisions of Section 12.7 hereof, Seller
represents and warrants to Purchaser as follows:
2.1 Organization. Seller is a corporation, duly organized, validly
existing and in good standing under and by virtue of the laws of the State of
Arkansas.
2.2 Authority. Seller has all requisite power and authority to (a)
own and lease Seller's properties and assets, (b) carry on Seller's business as
and where it is now being conducted, (c) execute, deliver and perform its
obligation under this Agreement and the documents to be executed in connection
herewith, and, (d) upon requisite approval of the Shareholders of Seller,
consummate the transactions contemplated hereby. All action on the part of
Seller necessary for the authorization, execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby has
been or will be taken prior to the Closing Date. This Agreement shall constitute
the legal, valid and binding obligation of Seller, enforceable in accordance
with its terms except as enforceability may be restricted, limited or delayed by
applicable
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bankruptcy or other laws affecting creditor's rights generally and except as
enforceability is subject to general principles of equity.
2.3 Subsidiaries. Seller does not have and has never had any
subsidiaries or affiliated organizations and does not otherwise own and has
never otherwise owned any shares of capital stock or any interest in, or control
of, directly or indirectly, any other corporation, partnership, limited
liability company, association, joint venture or other business entity, other
than shares of Common Stock in Purchaser.
2.4 Title to Assets. Seller has, and at Closing will have, good
and marketable title to all of the Assets subject to no mortgage, pledge, lien,
lease, conditional sales agreement, option, right of first refusal or any other
encumbrance or charge, including taxes. Seller agrees to remove all security
interests reflected on any search of public records, if any, prior to the
Closing and to remove any other security interests filed with respect to the
Assets between the date of such search of public records and the Closing Date.
The ▇▇▇▇ of Sale, in the form attached hereto as Exhibit 1.1(b), to be executed
and delivered by Seller at the Closing will be valid, binding and enforceable in
accordance with its terms, and will effectively vest in Purchaser good and
marketable title to all of the Assets. At the Closing, Seller shall deliver
certificates representing all of the securities owned by it, duly endorsed for
transfer.
2.5 Substantially All of the Assets. The Assets described in the
Schedule of Assets represent "substantially all" of the assets of Seller within
the meaning of Section 368(a)(1)(C) of the Code and applicable regulations of
the United States Department of the Treasury.
2.6 Type of Assets. The Assets consist solely of common stock of
Purchaser, cash, and equipment in the nature of furniture, fixtures and office
equipment.
2.7 Absence of Undisclosed Liabilities. Except as and to the
extent reflected in the Schedule of Liabilities, Seller, as of the date hereof,
has no liabilities, claims or obligations (whether accrued, absolute, contingent
or otherwise) related to the Business or the Assets and no knowledge of any
facts or circumstances that may give rise to a liability, claim or obligation in
the future.
2.8 Contracts. There are no contracts, leases, agreements or other
instruments to which Seller is a party or is bound which could either singularly
or in the aggregate have an adverse effect on the value to Purchaser of the
Assets or which could inhibit or prevent Seller in its ability effectively to
transfer to or vest in Purchaser good and sufficient title to the Assets.
2.9 Defaults. Seller is not in default under, nor has any event
occurred which, with the lapse of time or action by a third party, could result
in a default under, any outstanding indenture, mortgage, lease, contract or
agreement to which Seller is a party, except for defaults that would not have a
material adverse effect on Seller, the Assets or Purchaser. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated by this Agreement will not (i) violate any provision
of, or result in the breach of, or constitute a default under, any law the
violation of which would result in a significant liability to Seller, or any
order, writ, injunction or decree of any court, governmental agency or
arbitration tribunal; (ii) constitute a violation of or a default under, or
conflict with, any term or provision of any contract, commitment, indenture,
lease or other agreement, or any other restriction of any kind to which Seller
is a party or by which Seller is bound; or (iii) cause or give any party grounds
to cause (with or without notice, the passage of time or both) the maturity of
any liability or obligation of Seller to be accelerated, or increase any such
liability or obligation.
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2.10 Environmental Matters. There are no underground storage tanks
located on or under the Real Estate used by the Business on or prior to the date
hereof, which property is described on Schedule 1.1(a)(ii) attached hereto (the
"Property"). There are no "Hazardous Substances" (as hereinafter defined) on, in
or under the Property, and neither Seller nor, to Seller's knowledge, any third
party has engaged in the generation, production, use, handling, manufacture,
treatment, storage or disposal of any Hazardous Substances on, in or under the
Property. "Hazardous Substances" shall mean any substance, material, waste or
pollutant that is now or hereafter listed, defined, characterized or regulated
as hazardous, toxic or dangerous under or pursuant to any statute, law,
ordinance, rule or regulation of any federal, state, regional, county or local
governmental authority having jurisdiction over the Property or its use or
operation, including, without limitation, (i) any substance, material, element,
compound, mixture, solution, waste, chemical or pollutant listed, defined,
characterized or regulated as hazardous, toxic or dangerous under Applicable
Environmental Law, (ii) petroleum, petroleum derivatives or by-products and
other hydrocarbons, (iii) polychlorinated biphenyls (PCBs), asbestos and urea
formaldehyde and (iv) radioactive substances, materials or waste. "Applicable
Environmental Law" shall include (i) the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. ss. 9601 et seq. ("CERCLA"); (ii) the
Resource Conservation and Recovery Act, 42 U.S.C. ss. 6901 et seq. ("RCRA");
(iii) the Federal Water Pollution Control Act, 33 U.S.C. ss. 1251 et seq.; (iv)
the Clean Air Act, 42 U.S.C. ss. 7401 et seq.; (v) the Hazardous Material
Transportation Act, 49 U.S.C. ss. 1471 et seq.; (vi) the Toxic Substances
Control Act, 15 U.S.C. ss. 2601 et seq.; (vii) any amendments to the foregoing
Acts as adopted from time to time; (viii) any rule, regulation, order,
injunction, judgment, declaration or decree implementing or interpreting any of
the foregoing Acts, as amended; and (ix) any other federal, state or local
statute, law, ordinance, rule, regulation, order or decree regulating, relating
to, interpreting or imposing liability or standards of conduct concerning
hazardous, toxic or dangerous substances, material, waste, chemicals or
pollutants. There is no pending or, to the knowledge of Seller, threatened civil
or criminal litigation, notice of violation or administrative proceeding
relating in any way to any Applicable Environmental Law involving the Business,
the Property or the Assets, and, to the knowledge of Seller, there is no basis
for such litigation, notice or proceeding that could have a material adverse
effect on the Assets.
2.11 Litigation Except as set forth in Schedule 2.11, there is no
litigation, arbitration, governmental claim, investigation, workers compensation
claim or proceeding pending or threatened against Seller at law or in equity,
before any court, arbitration tribunal or governmental agency related to Seller,
the Business or the Assets. No such proceeding set forth in Schedule 2.11
concerns the ownership or any other rights with respect to the Assets. Seller
knows of no facts on which material claims may be hereafter made against Seller
related to the Assets. Any and all claims relating to Seller or the Business
arising from incidents on, before or after the Closing Date shall be the sole
responsibility of Seller and are specifically not assumed by Purchaser
hereunder. All claims and litigation against Seller are fully covered by
insurance. Seller shall unconditionally indemnify and hold Purchaser harmless
against any loss or liability including, without limitation, attorney's fees,
resulting from any claims or litigation arising out of incidents which occurred
prior to the Closing Date.
2.12 Compliance with Law. There is not outstanding or, to Seller's
knowledge, threatened any order, writ, injunction or decree of any court,
governmental agency or arbitration tribunal against or affecting Seller, the
Business or the Assets. Seller, the Business and the Assets are in compliance
with all applicable federal, state and local laws, regulations and
administrative orders which are significant to the Business (including, without
limitation, applicable statutes, rules, regulations, orders and restrictions
relating to licensure, equal employment opportunities or environmental standards
or controls), and Seller has received no notices of alleged violations thereof.
No governmental authorities are presently conducting proceedings against Seller
and, to Seller's knowledge, no such investigation or proceeding is pending or
being threatened. Seller has all federal, state and local permits, certificates,
licenses, approvals and other authorizations necessary
5
in the conduct and operation of the Business as currently conducted. All such
licenses and permits of Seller are in full force and effect, and no violations
are or have been recorded in respect thereof for which a fine or penalty may be
levied, and no proceeding is pending or threatened to revoke or limit any such
licenses and permits. Seller has obtained all consents, approvals and
authorizations of, and made all declarations, filings and registrations with any
governmental or regulatory authority, as required in connection with the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby.
2.13 Taxes. All federal, state, local and foreign tax returns,
information returns and other reports (the "Tax Returns") of Seller required by
law to be filed have been timely filed, and Seller has paid or provided for all
taxes (including taxes on properties (real and personal), income, franchises,
licenses, sales and payrolls) which have become due pursuant to such Tax Returns
or pursuant to any assessment, including any interest, penalty or addition
thereto, whether disputed or not. There are no tax liens on any of the Assets
except those with respect to taxes not yet due and payable. There are no pending
tax examinations of the Tax Returns of Seller nor has Seller received a revenue
agent's report asserting a tax deficiency. There are not now and will not be at
the Closing Date any claims pending or asserted against the Assets for unpaid
taxes by any federal, state, local or other governmental body. Seller has
withheld from each payment made to employees of Seller the amount of all taxes
(including, but not limited to, federal, state and local income taxes and
Federal Insurance Contribution Act taxes) required to be withheld therefrom, and
has set aside all other employee contributions or payments customarily set aside
with respect to such wages and has paid or will pay the same to, or has
deposited or will deposit such payment with, the proper tax receiving officers
or other appropriate authorities. Seller is not a partner or a member of any
partnership or joint venture or any other entity classified as a partnership for
federal income tax purposes.
2.14 Employment Matters.
(a) Seller is not a party to any written or oral
employment agreements with any of its employees (the "Employees"), consultants,
agents or other persons performing services for the Business except as set forth
on Schedule 2.14(a) attached hereto, and any such agreement is terminable by
Seller at will without penalty or cost to Seller. Seller has paid or made
provision for the payment of all salaries and wages of the Employees accrued
through the date hereof. Purchaser does not assume and is not responsible for
any obligation or liability arising out of any employment relationship of Seller
or the termination thereof. Purchaser shall have no obligation to hire any of
the Employees who are engaged in the Business as of the date hereof. Nothing in
this Agreement shall confer upon any of the Employees any rights or remedies,
including any right to employment or continued employment for any specified
period or of any nature or kind whatsoever. Seller is not a party to any
collective bargaining contracts or any other contracts, agreements or
understandings with any labor unions or other representatives of the Employees.
No collective bargaining agreement is currently being negotiated by Seller.
There exists no present or, to the best of Seller's knowledge, threatened labor
disturbance or pending arbitration, unfair labor practice, grievance or other
proceedings or litigation of any kind with respect to the Employees, and no such
labor disturbance, proceedings or litigation has existed during the past twelve
(12) months or exists which remains unresolved on the date hereof.
(b) Seller has not since inception, nor does it currently
sponsor, maintain, contribute to or participate in a Multiemployer Plan or a
"defined benefit plan" within the meaning of Section 3(35) of the Employee
Retirement Income Security Act of 1974 ("ERISA") covering employees of Seller.
None of the Employee Benefit Plans is an "employee pension benefit plan," or an
"employee welfare benefit plan," within the meaning of Section 3(3) of ERISA.
There are no pending or, to the best of Seller's knowledge, threatened claims,
lawsuits or arbitrations against any Employee Benefit Plan or any fiduciary
thereof. Each Employee Benefit Plan is, and has been, operated in compliance in
all material respects with the applicable provisions of federal and state
6
law. Seller has paid in full all insurance premiums or otherwise met all other
funding obligations with regard to all Employee Benefit Plans for policy years
or other applicable policy funding periods ending on or before the Closing Date.
Upon termination of employment of any Employee, neither Seller nor any employee
will incur any liability for any severance or termination pay, pension,
profit-sharing or other post-retirement benefit, including but not limited to
life, health and welfare benefits, or other similar payment. Seller does not
self-insure any Employee Benefit Plan. For purposes of this representation,
"Employee Benefit Plans" shall mean bonus, pension, benefit, welfare,
profit-sharing, retirement, disability, insurance, incentive, deferred
compensation and other similar fringe or employee benefit plans, funds, programs
or arrangements, and any employment contracts or executive compensation
agreements, written or oral, in each of the foregoing cases, which cover or
covered, are or were maintained for the benefit of, or relate or related to, any
or all current or former employees of Seller.
2.15 Consents and Approvals. Except for (a) the filing with the
Securities and Exchange Commission (the "SEC") of a proxy statement in
definitive form relating to the meeting of the Shareholders to be held in
connection with this Agreement and the transactions contemplated hereby (the
"Proxy Statement"), (b) the filing of applications and notices, as applicable,
with the Board of Governors of the Federal Reserve System, and any necessary
approval of such applications and/or notices and (c) the approval of this
Agreement by the requisite vote of the Shareholders, 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 the execution
and delivery by Seller of this Agreement and the consummation by Seller of the
transactions contemplated hereby
2.16 Seller Information. The information relating to Seller which
is provided to Purchaser by Seller or its representatives for inclusion in the
Proxy Statement and the post-effective amendment to Purchaser's shelf
registration statement on Form S-4 (such shelf registration statement and any
post-effective amendment thereto relating to this transaction, or any other S-4
Registration Statement used in connection with the transactions contemplated
hereby, the "S-4") in which the Proxy Statement will be included as a
prospectus, or in any other document filed with any other regulatory agency in
connection herewith, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in light
of the circumstances in which they are made, not misleading. The Proxy Statement
(except for such portions thereof that relate only to Purchaser or any of its
subsidiaries) will comply with the provisions of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the rules and regulations thereunder.
2.17 No Untrue or Inaccurate Representation or Warranty. No
representation or warranty by Seller contains or will contain any untrue
statement of material fact, or omits or will omit to state a material fact,
necessary to make the statements therein not misleading.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
3.1 Organization and Standing of Purchaser. Purchaser is a
corporation duly organized, validly existing and in good standing under and by
virtue of the laws of the State of Mississippi.
3.2 Authority of Purchaser. Purchaser has all requisite power and
authority to (a) execute, deliver and perform its obligations under this
Agreement and the documents to be
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executed in connection herewith, and (b) consummate the transactions
contemplated hereby. All action on the part of Purchaser necessary for the
authorization, execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby has been or will be taken
prior to the Closing Date. This Agreement shall constitute the legal, valid and
binding obligation of Purchaser, enforceable in accordance with its terms except
as enforceability may be restricted, limited or delayed by applicable bankruptcy
or other laws affecting creditor's rights generally and except as enforceability
is subject to general principles of equity
3.3 SEC Reports. Purchaser has previously made available to Seller
a true and correct copy of each (a) final registration statement, prospectus,
report, schedule and definitive proxy statement filed since December 31, 1999 by
Purchaser with the SEC pursuant to the Securities Act of 1933 (the "Securities
Act") or the Exchange Act (collectively, the "Purchaser Reports") and (b)
communication mailed by Purchaser to its shareholders since December 31, 1999,
and no such Purchaser Report or communication contained any untrue statement of
a material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances in which they were made, not misleading, except that information
as of a later date shall be deemed to modify information as of an earlier date.
Purchaser has timely filed all Purchaser Reports and other documents required to
be filed by it under the Securities Act and the Exchange Act, and, as of their
respective dates, all Purchaser Reports complied with the published rules and
regulations of the SEC with respect thereto.
3.4 Purchaser Information. The information relating to Purchaser
and its subsidiaries to be contained in the Proxy Statement and the S-4, or in
any other document filed with any other regulatory agency in connection
herewith, will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances in which they are made, not misleading. The Proxy Statement
(except for such portions thereof that relate only to Seller) will comply with
the provisions of the Exchange Act, and the rules and regulations thereunder.
3.5 No Untrue or Inaccurate Representation or Warranty. No
representation or warranty by Purchaser contains or will contain any untrue
statement of material fact, or omits or will omit to state a material fact,
necessary to make the statements therein not misleading.
3.6 Tax Representations.
(a) Purchaser has no intention or plan to reacquire any
of the Common Stock issued to Seller or, subsequently, to the Shareholders
pursuant to this Agreement. To the best knowledge of Purchaser, no person
related to Purchaser (within the meaning of Treasury Regulation
ss.1.368-1(e)(3)) and no person acting as an intermediary for Purchaser or such
a related person has a plan or intention to acquire any of the Common Stock
issued pursuant to this Agreement.
(b) Purchaser has no plan or intention to sell or
otherwise dispose of any of the assets of Seller acquired in this transaction,
except for dispositions made in the ordinary course of business or transfers
described in Treasury Regulation ss.1.368-2(k)(1).
(c) Purchaser is not a regulated investment company, a
real estate investment trust, or a corporation 50% or more of the value of whose
total assets (excluding cash, cash items, receivables and U.S. government
securities) are stock or securities and 80% or more of the value of whose total
assets (excluding cash, cash items, receivables and U.S. government securities)
are assets held for investment. For purposes of the 50% and 80% determinations
under the preceding sentence, stock and securities in any subsidiary corporation
shall be disregarded and the parent corporation shall be deemed to own its
ratable share of the subsidiary's assets. A corporation shall be considered a
subsidiary for purposes of this subparagraph if the parent owns
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50% or more or the combined voting power of all classes of stock entitled to
vote, or 50% or more of the total value of shares of all classes of stock
outstanding.
ARTICLE 4
COVENANTS OF PURCHASER
4.1 Corporate Action. Purchaser will take all necessary corporate
action required of it to carry out the transactions contemplated by this
Agreement and to satisfy the conditions specified herein.
4.2 Confidential Handling of Documents. Purchaser shall use its
best efforts to keep confidential all information provided by Seller pursuant to
this Agreement which is not in the public domain, and shall exercise the same
care in handling such information as it would exercise with similar information
of its own.
4.3 Conduct of Business. Except as otherwise contemplated by this
Agreement or consented to in writing by Seller, Purchaser shall not:
(a) 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 7.3 hereof);
(b) take any action, including entering into any
agreement with any other party, the effect of which would be to require
Purchaser to authorize additional shares of its common stock in order to fulfill
both Purchaser's obligations to Seller pursuant to this Agreement and
obligations to any such other party pursuant to any such agreement; or
(c) agree or commit to do any of the foregoing.
ARTICLE 5
COVENANTS OF SELLER
Seller hereby covenants and agrees as follows:
5.1 Access and Information. Between the date hereof and the
Closing Date, Seller shall give to representatives of Purchaser reasonable
access during normal business hours to Seller's premises, books, accounts and
records and all other relevant documents and will make available, and use its
best efforts to cause the independent accountants of Seller to make available,
copies of all such documents and information with respect to the business and
properties of Seller related to the Assets and the Business as representatives
of Purchaser may from time to time request, including, without limitation, the
working papers used to prepare the Schedule of Assets, all in such manner as not
unduly to disrupt the normal business activities of Seller. Such access shall
include consultations with the officers of Seller. During the period from the
date of this Agreement to the Closing Date, Seller shall confer on a regular and
frequent basis with one or more representatives of Purchaser to report material
operational matters and to report the general status of ongoing operations.
Seller shall notify Purchaser of any material adverse change in the financial
position, earnings or business of Seller after the date hereof and prior to the
Closing and of any governmental complaints, investigations, hearings or
adjudicatory proceedings (or communications indicating that the same may be
contemplated) or of any other matter which may be material to Seller and shall
keep Purchaser fully informed of such events and permit its representatives to
participate in all discussions relating thereto.
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5.2 Conduct of Business. Between the date hereof and the Closing
Date, except as otherwise contemplated by this Agreement or approved by
Purchaser, Seller shall conduct the Business only in the ordinary course thereof
consistent with past practice, in such a manner that the representations and
warranties contained in Article 2 shall be true and correct at and as of the
Closing Date (except for changes contemplated, permitted or required by this
Agreement) and so that the conditions to be satisfied by Seller at the Closing
shall have been satisfied. From the date hereof until Closing, except as
otherwise consented to by Purchaser in writing, Seller shall not:
(a) fail to use its best efforts to (i) maintain the Assets in
their present condition, (ii) comply with all laws and regulations of
governmental agencies or authorities, including applicable tax laws and
regulations, (iii) operate the Business in the manner necessary to maintain
its reputation and (iv) keep in force all licenses, permits and approvals
necessary to the operation of the Business as now conducted;
(b) fail to deliver to Purchaser any notices of any defaults or
noncompliance, cease and desist orders, notices of review or requests for
information received from lessors, mortgage holders, governmental bodies or
insurers relating to Seller, the Business or its operations;
(c) fail to deliver to Purchaser any notice or other information
regarding pending or threatened litigation with respect to Seller, the
Business or its operations;
(d) amend its Articles of Incorporation, Bylaws or other similar
governing documents;
(e) 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, are in an amount of no
more than $1,000 in the aggregate, or except as necessary to comply with
regulatory guidelines or requirements;
(f) enter into any new line of business;
(g) acquire or agree to acquire, by merging or consolidating with,
or by purchasing a 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, or which could reasonably be expected to impede or
delay consummation of the transactions contemplated hereby;
(h) change its methods of accounting in effect December 31, 2000,
except as required by changes in generally accepted accounting principles or
regulatory accounting principles as concurred to by Seller's independent
accountants;
(i) except as required by applicable law, (i) adopt, amend, or
terminate any employee benefit plan or any agreement, arrangement, plan or
policy between Seller and one or more of its current or former directors,
officers or employees or (ii) except for normal increases, in each case 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 employee benefit plan or agreement as 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);
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(j) 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;
(k) 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;
(l) 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 is a
party or by which Seller or its property is bound;
(m) 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 7.3 hereof); or
(n) agree or commit to do any of the foregoing.
5.3 Best Efforts to Secure Consents. Seller shall take the
necessary action and shall use its best efforts to secure before the Closing all
necessary consents and approvals required to carry out the transactions
contemplated by this Agreement and to satisfy all other conditions precedent to
the obligations of Purchaser and Seller.
5.4 Unusual Events. Seller shall deliver prompt written notice to
Purchaser of any material change in the Assets or the Business from the date of
this Agreement until the Closing. Until the Closing Date, Seller shall
supplement or amend all relevant Schedules and Exhibits with respect to any
matter thereafter arising or discovered which, if existing or known at the date
of this Agreement, would have been required to be set forth or described in such
Schedules and Exhibits.
5.5 Press Releases. Seller shall not issue any press release or
other public statement relating to this Agreement or the transactions
contemplated hereby except as may be required by law.
ARTICLE 6
ADDITIONAL AGREEMENTS
6.1 Regulatory Matters.
(a) Purchaser and Seller shall promptly prepare and file
with the SEC the Proxy Statement, and Purchaser shall promptly prepare and file
with the SEC the S-4, in which the Proxy Statement will be included as a
prospectus. Each of Seller and Purchaser shall use its reasonable best efforts
to have the S-4 declared effective under the Securities Act as promptly as
practicable after such filing, and Seller shall thereafter mail the Proxy
Statement to the Shareholders. Purchaser shall also use its reasonable best
efforts to obtain all necessary state securities law or "Blue Sky" permits and
approvals required to carry out the transactions contemplated by this Agreement.
(b) 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. Seller and
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Purchaser 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 the information relating to
Seller or Purchaser, as the case may be, 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.
(c) Seller and Purchaser shall, upon request, furnish
each other with all information concerning themselves, their directors, officers
and shareholders and such other matters as may be reasonably necessary or
advisable in connection with the Proxy Statement, the S-4 or any other
statement, filing, notice or application made by or on behalf of Purchaser or
Seller to any Governmental Entity in connection with the transactions
contemplated by this Agreement.
(d) Purchaser and Seller shall promptly furnish each
other with copies of written communications received by Purchaser or Seller, as
the case may be, or any of their respective Subsidiaries, Affiliates or
Associates (as such terms are defined in Rule 12b-2 under the Exchange Act 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 Shareholder Meeting. Seller shall take all steps necessary to
duly call, give notice of, convene and hold a meeting of the Shareholders to be
held as soon as is reasonably practicable after the date on which the S-4
becomes effective for the purpose of voting upon the approval and adoption of
this Agreement. Seller will, without recommendation due to conflicts of interest
of a majority of Seller's directors, submit this Agreement and the transactions
contemplated hereby to the Shareholders for their approval.
6.3 Legal Conditions. Each of Purchaser and Seller shall use their
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 with respect to the transactions contemplated
hereby and, subject to the conditions set forth in Articles 7, 8 and 9 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 or Purchaser in
connection with the transactions contemplated by this Agreement, and to comply
with the terms and conditions of such consent, authorization, order or approval.
6.4 Stock Exchange Listing. Purchaser shall make all filings
required of it to cause the shares of Common Stock issued pursuant to this
Agreement to be approved for listing on the NYSE, subject to official notice of
issuance, as of the Closing Date.
6.5 Affiliates. Seller shall provide a list to Buyer of all
directors, executive officers and other persons who are "affiliates" of Seller
(for purposes of Rule 145 of the Securities Act). Seller shall use its
reasonable best efforts to cause each such "affiliate" of Seller to deliver to
Purchaser as soon as practicable after the date of this Agreement a written
agreement in the form of Exhibit 6.5. Seller agrees and acknowledges that such
"affiliates" receiving Common Stock of Purchaser shall receive stock
certificates containing a legend stating that such shares may only be
transferred in accordance with such written agreement.
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ARTICLE 7
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF EACH PARTY EACH PARTY
The respective obligations of each party which are to be discharged
under this Agreement at the Closing are subject to the performance, at or prior
to the Closing, of the following conditions:
7.1 Shareholder Approval. This Agreement shall have been approved
and adopted by the requisite vote of the Shareholders under applicable law.
7.2 Listing of Shares. The shares of Common Stock which shall be
issued to the Shareholders upon consummation of the transactions contemplated
hereby shall have been authorized for listing on the NYSE, subject to official
notice of issuance.
7.3 Other Approvals. All regulatory approvals required to
consummate the transactions contemplated hereby 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").
7.4 S-4. The S-4 shall have become effective under the Securities
Act, no stop order suspending the effectiveness of the S-4 shall have been
issued and no proceedings for that purpose shall have been initiated or
threatened by the SEC.
7.5 No Injunctions or Restraints; Illegality. No action or
proceeding shall have been instituted against, and no order, decree or judgment
of any court, agency, commission or other Governmental Entity shall exist
against Purchaser or Seller, which seeks to or would render it unlawful as of
the Closing to effect the transactions contemplated hereby in accordance with
the terms hereof, and no such action shall seek damages by reason of the
transactions contemplated hereby. 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 transactions contemplated hereby. No substantive legal
objection to the transactions contemplated by this Agreement shall have been
received from or threatened by any Governmental Entity.
ARTICLE 8
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER
All obligations of Seller which are to be discharged under this
Agreement at the Closing are subject to the fulfillment at or prior to the
Closing of each of the following conditions (unless expressly waived in writing
by Seller at any time at or prior to the Closing):
8.1 Representations and Warranties True. All of the
representations and warranties made by Purchaser contained in Article 3 of this
Agreement shall be true as of the date of this Agreement, shall be deemed to
have been made again at and as of the date of the Closing, and shall be true at
and as of the date of the Closing in all material respects. On the Closing Date,
Purchaser shall have delivered a certificate signed by a duly authorized officer
of Purchaser certifying the foregoing.
8.2 Performance of Obligations of Purchaser. Purchaser shall have
performed in all material respects all obligations required to be performed by
it under this Agreement at or prior
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to the Closing Date, and Seller shall have received a certificate signed by a
duly authorized officer of Purchaser certifying the foregoing.
8.3 Other Deliveries. Purchaser shall have delivered such other
documents and instruments contemplated by this Agreement or the agreements
entered into in connection herewith, and such other documents and instruments as
Seller or its counsel may reasonably request.
8.4 Proceedings and Documents Satisfactory. All proceedings in
connection with the sale of the Assets and all certificates and documents
delivered to Seller pursuant to this Agreement shall be satisfactory in form and
substance to Seller and its counsel acting reasonably and in good faith.
8.5 Fairness Opinion. Prior to mailing the Proxy Statement, Seller
shall have received an opinion from ▇▇▇▇▇▇ Capital Management Services, Inc. to
the effect that as of the date thereof and based upon and subject to the matters
set forth therein, the Purchase Price is fair to the Shareholders from a
financial point of view.
8.6 Sale of Real Estate and Mineral Rights. Seller shall have
entered into one or more contracts to sell to third parties all of the Real
Estate and Mineral Rights for a cumulative sales price that, in the judgment of
Seller's Board of Directors, is reasonable, and the sale of all of the Real
Estate and Mineral Rights shall have occurred prior to Closing.
8.7 Tax Opinion. Seller shall have received an opinion from
Mitchell, Williams, ▇▇▇▇▇, Gates & ▇▇▇▇▇▇▇▇, P.L.L.C. ("Seller's Counsel") in
form and substance reasonably satisfactory to Seller, dated the Closing Date,
substantially to the effect that, on the basis of facts, representations and
assumptions set forth in such opinion which are consistent with the state of
facts existing on the Closing Date, the Reorganization will be treated as a
reorganization within the meaning of Section 368(a)(1)(C) of the Code and that
Purchaser and Seller will each be a party to that reorganization. In rendering
such opinion, Seller's Counsel may require and rely upon representations and
covenants, including those contained in certificates of officers of Seller and
others, reasonably satisfactory in form and substance to Seller's Counsel.
Seller will cooperate with Seller's Counsel in executing and delivering to
Seller's Counsel customary representations in connection with such opinion.
8.8 Dissenting Shares. Dissenters rights shall have been perfected
with respect to no more than two percent (2%) of Seller's outstanding shares.
ARTICLE 9
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PURCHASER
All obligations of Purchaser which are to be discharged under this
Agreement at the Closing are subject to the fulfillment at or prior to the
Closing of each of the following conditions (unless expressly waived in writing
by Purchaser at any time at or prior to the Closing):
9.1 Representations and Warranties True. All of the
representations and warranties of Seller contained in Article 2 of this
Agreement shall be true as of the date of this Agreement, shall be deemed to
have been made again at and as of the Closing, and shall be true at and as of
the date of the Closing. On the Closing Date, Seller shall have delivered a
certificate signed by a duly authorized officer of Seller certifying the
foregoing.
9.2 Performance of Obligations of Seller. Seller shall have
performed in all material respects all obligations required to be performed by
it under this Agreement at or prior to
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the Closing Date, and Purchaser shall have received a certificate signed by a
duly authorized officer of Seller certifying the foregoing.
9.3 Completion of Due Diligence Review. Purchaser shall have
completed due diligence review of the Business, the Assets and Seller by no
later than December 31, 2001, and Purchaser shall be satisfied in its sole
discretion with the information obtained.
9.4 Board of Director Approval. Purchaser's Board of Directors
shall have approved this Agreement and all transactions contemplated hereby no
later than January 31, 2002.
9.5 ▇▇▇▇ of Sale. Purchaser shall have received a ▇▇▇▇ of Sale in
the form of Exhibit 1.1(b), executed by a duly authorized officer of Seller.
9.6 Other Deliveries. Seller shall have delivered such other
documents and instruments contemplated by this Agreement or the agreements
entered into in connection herewith, and such other documents and instruments as
Purchaser or its counsel may reasonably request.
9.7 Proceedings and Documents Satisfactory. All proceedings in
connection with the sale of the Assets and all certificates and documents
delivered to Purchaser pursuant to this Agreement shall be satisfactory in form
and substance to Purchaser and its counsel acting reasonably and in good faith.
9.8 No Adverse Change. From the date of this Agreement until the
Closing, the operations of Seller shall have been conducted in the ordinary
course of business, consistent with Section 5.2 of this Agreement; no event
shall have occurred or have been threatened which has or would have a material
adverse affect upon the Business or Seller; and Seller shall not have sustained
any loss or damage to the Assets or the Business, whether or not insured.
9.9 Sale of Real Estate and Mineral Rights. All of the Real Estate
and Mineral Rights shall have been sold prior to Closing.
9.10 Loan Payoff. All amounts arising under any and all notes
payable from Seller to Purchaser shall have been paid in full.
9.11 Dissenting Shares. Dissenters rights shall have been perfected
with respect to no more than two percent (2%) of Seller's outstanding shares.
ARTICLE 10
TERMINATION
10.1 Termination. This Agreement may be terminated at any time
prior to the Closing Date, whether before or after approval of the matters
presented in connection with the transactions contemplated hereby by the
Shareholders:
(a) by mutual agreement of Seller and Purchaser in a written
instrument, if the Board of Directors of such party so determines by a vote
of a majority of the members of its entire Board;
(b) by either Purchaser or Seller, upon written notice to the
other party (i) 60 days after the date on which any request or application
for a Requisite Regulatory Approval shall have been denied or withdrawn at
the request or recommendation of the Governmental Entity which must grant
such Requisite Regulatory Approval, unless within the 60-day
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period following such denial or withdrawal a petition for rehearing or an
amended application has been filed with the applicable Governmental Entity;
provided, however, that no party shall have the right to terminate this
Agreement pursuant to this Section 10.1(b)(i) if such denial or request or
recommendation for withdrawal 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 (ii) if any Governmental
Entity of competent jurisdiction shall have issued a final nonappealable
order enjoining or otherwise prohibiting the transactions contemplated
hereby;
(c) by either Purchaser or Seller, if the transactions
contemplated hereby shall not have been consummated on or before April 30,
2002, 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;
(d) by either Purchaser or Seller (provided that Seller may not
terminate if it is in material breach of any of its obligations under
Section 6.2), if any approval of the Shareholders required for the
consummation of the transactions contemplated hereby shall not have been
obtained by reason of the failure to obtain the required vote at a duly held
meeting of such Shareholders or at any adjournment or postponement thereof;
(e) by either Purchaser or Seller, if any approval of Purchaser's
Board of Directors required for the consummation of the transactions
contemplated hereby shall not have been obtained by reason of the failure to
obtain the required vote at a duly held meeting of such Board of Directors
or at any adjournment or postponement thereof;
(f) by either Purchaser or Seller (provided that the terminating
party is not then in material breach of any representation, warranty,
covenant or other agreement contained herein), if any of the representations
or warranties set forth in this Agreement on the part of the other party
shall be untrue or incorrect in any material respect, which is not cured
within thirty (30) days following written notice to the party making such
representation, or which, by its nature, cannot be cured prior to the
Closing; provided, however, that neither party shall have the right to
terminate this Agreement pursuant to this Section 10.1(e) unless the
representation or warranty, together with all other representations and
warranties that are untrue or incorrect, would entitle the party receiving
such representation not to consummate the transactions contemplated hereby
under Section 9.1 (in the case of a representation or warranty by Seller) or
Section 8.1 (in the case of a representation or warranty by Purchaser);
(g) by either Purchaser or Seller (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 covenants or agreements set forth in this
Agreement on the part of the other party, which breach shall not have been
cured within thirty (30) days following receipt by the breaching party of
written notice of such breach from the other party hereto, or which breach,
by its nature, cannot be cured prior to the Closing;
(h) by Purchaser, if the Board of Directors of Seller shall have
withdrawn, modified or changed in a manner adverse to Purchaser its
submission of this Agreement and the transactions contemplated hereby to the
Shareholders or
(i) by either Purchaser or Seller, if any condition to the
terminating party's obligation to close, other than a condition contained in
Sections 7.1, 7.3, 8.1, 8.2, 9.1, 9.2 or
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9.4, is not satisfied or waived on or prior to the Closing Date, and if any
applicable cure period has lapsed, and if the failure to satisfy the
condition that is the basis for termination is not 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.
10.2 Effect of Termination. In the event of termination of this
Agreement by either Purchaser or Seller as provided in Section 10.1, this
Agreement shall forthwith become void and have no effect except that (i)
Sections 1.4 and 10.2 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.
ARTICLE 11
INDEMNIFICATION
Subject to the conditions and provisions herein set forth, Seller
agrees to indemnify, defend and hold harmless Purchaser from and against:
(a) All litigation, liabilities or obligations of and claims
against Purchaser arising out of the Business prior to the Closing Date;
(b) Any and all losses, damages, costs or deficiencies resulting
from any and all misrepresentations or breaches of warranty or failures to
perform the covenants or undertakings by Seller contained in or made
pursuant to this Agreement; and
(c) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses incident to any of the foregoing.
ARTICLE 12
MISCELLANEOUS
12.1 Notices. All notices, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered in person or mailed by certified mail, postage prepaid:
To Seller: First Land and Investment Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
With a copy (which Mitchell, Williams, ▇▇▇▇▇, Gates
shall not constitute & ▇▇▇▇▇▇▇▇, PLLC
notice) to: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
To Purchaser: BancorpSouth, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
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With a copy (which ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, PLLC
shall not constitute ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
notice) to: ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
or to such other address as either Seller or Purchaser may designate by notice
to the other.
12.2 Entire Agreement. This Agreement and the Exhibits, Schedules
and documents delivered pursuant hereto constitute the entire agreement between
the parties hereto relating to the subject matter of this Agreement. Subject to
compliance with applicable law, this Agreement may be amended by the parties
hereto, by action taken or authorized by their respective Boards of Directors,
at any time before or after approval of the matters presented in connection with
the transactions contemplated hereby by the Shareholders; provided, however,
that after any approval of the transactions contemplated by this Agreement by
the Shareholders, there may not be, without further approval of such
Shareholders, any amendment of this Agreement which reduces the amount or
changes the form of the consideration to be delivered to the Shareholders
hereunder other than as contemplated by this Agreement. This Agreement may not
be amended except by an instrument in writing signed on behalf of each of the
parties hereto.
12.3 Governing Law. The validity and construction of this Agreement
shall be governed by the laws of the State of Mississippi applicable to
contracts made and to be performed wholly within such State.
12.4 Section Headings. The Section headings are for reference only
and shall not limit or control the meaning of any provision of this Agreement.
12.5 Waiver. No delay or omission on the part of any party hereto
in exercising any right hereunder shall operate as a waiver of such right or any
other right under this Agreement.
12.6 Exhibits. All Exhibits, Schedules and documents referred to in
or attached to this Agreement are integral parts of this Agreement as if fully
set forth herein, and all statements appearing therein shall be deemed to be
representations.
12.7 Assignment. No party hereto shall assign this Agreement
without first obtaining the written consent of the other party. Without waiver
of the foregoing provisions, all of the rights, benefits, duties, liabilities
and obligations of the parties hereto shall inure to the benefit of and be
binding upon the parties and their respective successors and assigns.
12.8 Plain Meaning. Seller and Purchaser have each negotiated the
terms hereof, reviewed this Agreement carefully, and discussed it with their
legal counsel. It is the intent of the parties that each word, phrase and
sentence and other part hereof shall be given its plain meaning, and that rules
of interpretation or construction of contracts that would construe any ambiguity
of any part hereof against the draftsman, by virtue of being the draftsman,
shall not apply.
12.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall comprise one and the same instrument.
12.10 Severability. If any one or more of the provisions of this
Agreement is determined to be illegal or unenforceable, all other provisions of
this Agreement shall be given effect separately from the provision or provisions
determined to be illegal or unenforceable and shall not be affected thereby.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
"SELLER"
FIRST LAND AND INVESTMENT COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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President
"PURCHASER"
BANCORPSOUTH, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Chairman and Chief Executive Officer
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