<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
June 27, 1995 (June 20, 1995)
------------------------------------------------
Date of Report (Date of earliest event reported)
UNION PLANTERS CORPORATION
--------------------------------------------------
(Exact name of registrant as specified in charter)
TENNESSEE 0-10160 62-0859007
- ------------------------ ------------ -------------------
(State of incorporation) (Commission (I.R.S. Employer
File Number) Identification No.)
UNION PLANTERS ADMINISTRATIVE CENTER
7130 GOODLETT FARMS PARKWAY
MEMPHIS, TENNESSEE 38018
----------------------------------------
(Address of principal executive offices)
Registrant's telephone number, including area code: (901) 383-6000
---------------
Not Applicable
-------------------------------------------------------------
(Former name or former address, if changed since last report)
<PAGE> 2
ITEM 5. OTHER EVENTS
Union Planters Corporation, a Tennessee corporation ("UPC"), executed
an Agreement and Plan of Reorganization (the "Reorganization Agreement") dated
June 20, 1995, (as amended and restated June 22, 1995) with Capital
Bancorporation, Inc., a Missouri corporation ("CBI"), pursuant to which UPC
would acquire CBI through the merger of CBI with and into CBI Acquisition
Company, Inc., a wholly owned subsidiary of UPC ("CBIAC"). UPC and CBI, bank
holding companies registered under the Bank Holding Company Act of 1956, as
amended, had total assets of approximately $9.7 billion and $982 million,
respectively, as of March 31, 1995, and operate subsidiary banks located in
Tennessee, Arkansas, Kentucky, Mississippi, Louisiana, and Alabama and in
Missouri, respectively. CBIAC was formed solely to effectuate the Merger.
Under the terms of the Reorganization Agreement, UPC would exchange 1.185
shares of UPC common stock for each common share of CBI. The acquisition, which
is to be accounted for as a pooling of interests, is expected to be completed
during the first quarter of 1996, and is subject to due diligence review,
shareholder and regulatory approval, and the satisfaction of certain normal
contractual closing conditions.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL STATEMENTS, AND EXHIBITS
C. Exhibits
2 Plan of Acquisition, Reorganization, Arrangement,
Liquidation, or Succession
(a) Agreement and Plan of Reorganization dated as of
June 20, 1995 (as amended and restated June 22,
1995) between Union Planters Corporation, CBI
Acquisition Company, Inc., and Capital
Bancorporation, Inc.
99 Additional Exhibits
(a) Press Release dated June 20, 1995
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Union Planters Corporation
------------------------------------
Registrant
Date: June 27, 1995 /s/ Jack W. Parker
-------------------- ------------------------------------
Jack W. Parker
Executive Vice President and
Chief Financial Officer
-3-
<PAGE> 1
EXHIBIT 2(a)
Agreement and Plan of Reorganization dated
June 20, 1995 (amended and restated June 22, 1995)
between Union Planters Corporation, CBI Acquisition
Company, Inc. and Capital Bancorporation, Inc.
<PAGE> 2
EXHIBIT 2(A)
AGREEMENT AND PLAN OF REORGANIZATION
Dated as of June 20, 1995
(As amended and restated June 22, 1995)
Between
UNION PLANTERS CORPORATION and
CBI ACQUISITION COMPANY, INC.
and
CAPITAL BANCORPORATION, INC.
Joined in for limited purposes by:
WILLIAM G. LAUBER AND DOUGLAS D. HOMMERT,
AS CO-TRUSTEES OF CERTAIN TRUSTS DESCRIBED HEREIN
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
AGREEMENT AND PLAN OF REORGANIZATION . . . . . . . . . . . . . 1
AGREEMENT . . . . . . . . . . . . . . . . . . . 3
ARTICLE 1
DEFINITIONS
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
-----------
ARTICLE 2
TERMS OF THE REORGANIZATION
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.1 The Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
----------
2.2 Charter, Bylaws, Directors, Officers and Name of the Surviving Corporation . . . . . . . . . . 10
--------------------------------------------------------------------------
(a) Charter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
-------
(b) Bylaws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
------
(c) Directors and Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
----------------------
(d) Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
----
2.3 Due Diligence Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
--------------------
2.4 Availability of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
---------------------------
2.5 UPC's Right to Revise the Structure of the Transaction . . . . . . . . . . . . . . . . . . . . 12
------------------------------------------------------
2.6 Holding Period of UPC Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
----------------------------------
2.7 CBI Stock Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
-----------------
2.8 CBI Convertible Subordinated Capital Notes . . . . . . . . . . . . . . . . . . . . . . . . . . 14
------------------------------------------
2.9 CBI 9.5% Increasing Rate, Redeemable, Cumulative, Perpetual Preferred Stock, Series C . . . . 14
-------------------------------------------------------------------------------------
2.10 CBI Treasury Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
------------------
ARTICLE 3
DESCRIPTION OF THE TRANSACTION
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.1 Terms of the Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
-------------------
(a) Satisfaction of Conditions to Closing . . . . . . . . . . . . . . . . . . . . . . . . 15
-------------------------------------
(b) Effective Time of the Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
----------------------------
(c) Shares of INTERIM to Remain Outstanding . . . . . . . . . . . . . . . . . . . . . . . 16
---------------------------------------
(d) Conversion of Outstanding Shares of CBI . . . . . . . . . . . . . . . . . . . . . . . 16
---------------------------------------
(e) Conversion and Exchange of Shares of CBI Common Stock; Exchange Ratio . . . . . . . . 16
---------------------------------------------------------------------
(f) Mechanics of Payment of Consideration . . . . . . . . . . . . . . . . . . . . . . . . 19
-------------------------------------
(g) Stock Transfer Books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
--------------------
(h) Effects of the Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
---------------------
(i) Transfer of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
------------------
(j) Assumption of Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
-------------------------
</TABLE>
i
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(k) Dissenters' Rights of CBI Shareholders . . . . . . . . . . . . . . . . . . . . . . . 22
--------------------------------------
3.2 Time and Place of Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
-------------------------
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF UPC AND INTERIM
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.1 Organization and Corporate Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
------------------------------------
4.2 Authorization, Execution and Delivery; Reorganization Agreement Not in Breach . . . . . . . . 24
-----------------------------------------------------------------------------
4.3 No Legal Bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
------------
4.4 Government and Other Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
------------------------------
4.5 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
--------------
4.6 UPC Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
------------------------
4.7 Exchange Act and Listing Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
--------------------------------
4.8 The UPC Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
--------------------
4.9 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
----------
4.10 Labor and Employment Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
----------------------------
4.11 Absence of Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
----------------------------------
4.12 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
----------
4.13 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
--------------------
4.14 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
-------
4.15 Statements True and Correct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
---------------------------
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF CBI COMPANIES
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.1 Organization and Qualification of CBI and Subsidiaries . . . . . . . . . . . . . . . . . . . . 31
------------------------------------------------------
5.2 Authorization, Execution and Delivery; Reorganization Agreement Not in Breach . . . . . . . . 32
-----------------------------------------------------------------------------
5.3 No Legal Bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
------------
5.4 Government and Other Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
------------------------------
5.5 Compliance With Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
-------------------
5.6 Charter Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
-----------------
5.7 CBI Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
------------------------
5.8 Absence of Certain Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
--------------------------
5.9 Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
--------
5.10 Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
----------
5.11 CBI Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
----------------
5.12 Condition of Fixed Assets and Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
---------------------------------------
5.13 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
-----------
5.14 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
----------
5.15 Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
-------------------
5.16 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
---------
5.17 Labor and Employment Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
----------------------------
5.18 Records and Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
---------------------
5.19 Capitalization of CBI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
---------------------
5.20 Sole Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
--------------
5.21 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
----------
5.22 Absence of Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
----------------------------------
</TABLE>
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<TABLE>
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5.23 Allowance for Possible Loan or ORE Losses . . . . . . . . . . . . . . . . . . . . . . . . . . 47
-----------------------------------------
5.24 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
--------------------
5.25 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
----------------------
5.26 Material Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
------------------
5.27 Material Contract Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
--------------------------
5.28 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
-------
5.29 Exchange Act Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
--------------------
5.30 Statements True and Correct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
---------------------------
ARTICLE 6
COVENANTS OF UPC
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
6.1 Regulatory Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
--------------------
6.2 Registration of UPC Common Stock under the Securities Laws . . . . . . . . . . . . . . . . . . 57
----------------------------------------------------------
6.3 Employee Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
-----------------
6.4 Conduct of Business -- Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . 58
--------------------------------------------
6.5 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
---------------
ARTICLE 7
COVENANTS OF CBI COMPANIES
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.1 Proxy Statement; CBI Shareholder Approval . . . . . . . . . . . . . . . . . . . . . . . . . . 60
-----------------------------------------
7.2 Conduct of Business -- Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . 61
--------------------------------------------
7.3 Conduct of Business -- Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . 63
-----------------------------------------
7.4 Certain Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
---------------
ARTICLE 8
CONDITIONS TO CLOSING
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
8.1 Conditions to the Obligations of CBI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
------------------------------------
(a) Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
-----------
(b) Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
------------------------------
(c) Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
---------
(d) Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
-------------
(e) Opinion of UPC's and INTERIM's Counsel . . . . . . . . . . . . . . . . . . . . . . . 70
--------------------------------------
(f) Destruction of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
-----------------------
(g) Inspections Permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
---------------------
(h) No Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
--------------------------
(i) Fairness Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
----------------
(j) Tax Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
-----------
8.2 Conditions to Obligations of UPC and INTERIM . . . . . . . . . . . . . . . . . . . . . . . . . 73
--------------------------------------------
(a) Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
-----------
(b) Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
------------------------------
(c) Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
---------
(d) Destruction of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
-----------------------
(e) Inspections Permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
---------------------
(f) No Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
--------------------------
(g) Opinion of CBI's Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
------------------------
</TABLE>
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(h) Other Business Combinations, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . 76
--------------------------------
(i) Maintenance of Certain Covenants, Etc . . . . . . . . . . . . . . . . . . . . . . . . 76
-------------------------------------
(j) Non-Compete Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
----------------------
(k) Tax Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
-----------
(l) Receipt of Affiliate Letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
----------------------------
(m) Fairness Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
----------------
(n) Pooling of Interests Accounting Treatment . . . . . . . . . . . . . . . . . . . . . . 79
-----------------------------------------
8.3 Conditions to Obligations of All Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
----------------------------------------
(a) No Pending or Threatened Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
-------------------------------
(b) Government Approvals and Acquiescence Obtained . . . . . . . . . . . . . . . . . . . 79
----------------------------------------------
(c) Shareholder Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
--------------------
(d) Registration Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
----------------------
ARTICLE 9
TERMINATION
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
9.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
-----------
9.2 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
---------------------
ARTICLE 10
GENERAL PROVISIONS
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
10.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
-------
10.2 Assignability and Parties in Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
-------------------------------------
10.3 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
-------------
10.4 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
------------
10.5 Best Efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
------------
10.6 Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
---------
10.7 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
----------------
10.8 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
------------
10.9 Modifications, Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
-------------------------------------
10.10 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
--------------
10.11 Payment of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
-------------------
10.12 Finders and Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
-------------------
10.13 Equitable Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
------------------
10.14 Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
---------------
10.15 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
---------
10.16 Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
-------------------
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AGREEMENT AND PLAN OF REORGANIZATION
(as amended and restated June 22, 1995)
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Reorganization
Agreement") dated as of the 20th day of June, 1995, by and between UNION
PLANTERS CORPORATION ("UPC"), a corporation chartered and existing under the
laws of the State of Tennessee which is registered both as a bank holding
company and as a savings and loan holding company and whose principal offices
are located at 7130 Goodlett Farms Parkway, Memphis, Shelby County, Tennessee
38018; CBI ACQUISITION COMPANY, INC. ("INTERIM" or the "Surviving Corporation"
as the context may require), a corporation chartered and existing under the
laws of the State of Tennessee whose principal place of business is located at
7130 Goodlett Farms Parkway, Memphis, Shelby County, Tennessee 38018 and which
is a wholly-owned subsidiary of UPC; and CAPITAL BANCORPORATION, INC. ("CBI"),
a corporation chartered and existing under the laws of the State of Missouri
which is registered as a bank holding company and whose principal offices are
located at 407 North Kingshighway, Fourth Floor, Cape Girardeau, Cape Girardeau
County, Missouri 63701.
UPC and INTERIM may sometimes be referred to herein collectively as
the "UPC Parties" and UPC, INTERIM and CBI are sometimes referred to herein
collectively as the "Parties."
Certain other capitalized terms used in this Reorganization Agreement
are defined below in ARTICLE 1.
CAPITAL BANK OF CAPE GIRARDEAU COUNTY, CAPITAL BANK OF COLUMBIA,
CAPITAL BANK OF SOUTHWEST MISSOURI, CAPITAL BANK AND TRUST and CAPITAL BANK OF
SIKESTON, each a Missouri-chartered banking corporation; CAPITAL BANK OF
PERRYVILLE, NATIONAL ASSOCIATION, a National Banking Association chartered
under the Acts of Congress; MARYLAND AVENUE BANCORPORATION, INC. and CENTURY
STATE BANCSHARES, INC., both Missouri corporations registered as bank holding
companies under the BHCA (collectively, the "CBI Financial Subsidiaries") are
each wholly-owned subsidiaries of CBI.
CBI is currently in the process of acquiring HOME FEDERAL SAVINGS AND
LOAN ASSOCIATION, a thrift institution chartered under the Acts of Congress and
headquartered in Jonesboro, Craighead County, Arkansas. When and if said
acquisition should be consummated, HOME FEDERAL SAVINGS AND LOAN ASSOCIATION
shall also be deemed to be one of the CBI Financial Subsidiaries for purposes
of this Reorganization Agreement.
Although they shall not be deemed to be formal parties to it, in
consideration of UPC and INTERIM executing this Reorganization Agreement, each
of the CBI Financial Subsidiaries
REORGANIZATION AGREEMENT - PAGE 1
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shall, during the "initial Due Diligence Review" period described in Section
2.3 below, execute and deliver to UPC a CERTIFICATION in the form of Exhibit B
hereto in which each of them shall make the same warranties, representations
and covenants to UPC and INTERIM as CBI shall make to UPC and INTERIM in
Article 5, Article 7 and elsewhere in this Reorganization, limited, however, in
the case of each CBI Financial Subsidiary to the properties, operations and
other activities of such Subsidiary.
William G. Lauber and Douglas D. Hommert, co-trustees of the Capital
Trust dated February 4, 1994, PAN-Bank Trust dated February 11, 1994, CNN-Bank
Trust dated February 11, 1994, JJN-Bank Trust dated February 4, 1994, and
MDN-Bank Trust dated February 4, 1994 beneficially own as co-trustees of such
trusts an aggregate 603,142 shares of CBI Common Stock (including shares
issuable upon the exercise of CBI warrants). William G. Lauber and Douglas D
Hommert are executing this Reorganization Agreement for the sole purpose of
binding themselves, as co-trustees of the foregoing trusts, to vote such shares
of CBI Common Stock held as co-trustees of the foregoing trusts in favor of
the Reorganization Agreement and Plan of Merger annexed hereto as Exhibit A
(the "Plan of Merger"), and they acknowledge that the execution of this
Reorganization Agreement by UPC constitutes a sufficient consideration to
support their said undertaking.
RECITALS
A. CBI is the beneficial owner and holder of record of all of the
issued and outstanding shares of the capital stock of each of the CBI Financial
Subsidiaries and desires to have itself and, indirectly, all of its assets,
including the capital stock of each of the CBI Financial Subsidiaries, acquired
by UPC on the terms and subject to the conditions set forth in this
Reorganization Agreement and the Plan of Merger.
B. UPC is the beneficial owner and holder of record of 1,000
shares of common stock having a par value of $1.00 per share of INTERIM (the
"INTERIM Common Stock") which constitute all of the shares of INTERIM Common
Stock which are issued and outstanding and UPC desires to acquire CBI and,
indirectly, CBI's assets, including the capital stock of the CBI Financial
Subsidiaries, on the terms and subject to the conditions set forth in this
Reorganization Agreement and the accompanying Plan of Merger.
C. The Board of Directors of CBI deems it desirable and in the
best interests of CBI and the shareholders of CBI (the "CBI Shareholders") that
CBI be merged with and into INTERIM (which would survive the merger as the
Surviving Corporation, as defined herein) on the terms and subject to the
conditions set forth in
REORGANIZATION AGREEMENT - PAGE 2
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this Reorganization Agreement and in the manner provided in this Reorganization
Agreement and the Plan of Merger (the "Merger") and has directed that the
Reorganization Agreement and annexed Plan of Merger be submitted to the CBI
Shareholders with the recommendation that it be approved by them.
D. The Boards of Directors of UPC and INTERIM deem it desirable
and in the best interests of UPC and INTERIM and the shareholders of UPC and
INTERIM that CBI be merged with and into INTERIM on the terms and subject to
the conditions set forth in this Reorganization Agreement and in the manner
provided in this Reorganization Agreement and the Plan of Merger and have
directed that the Reorganization Agreement and annexed Plan of Merger be
submitted to UPC as the sole shareholder of INTERIM with the recommendation
that it be approved.
E. The respective Boards of Directors of UPC, INTERIM and CBI
have each adopted (or will each adopt) resolutions setting forth and adopting
this Reorganization Agreement and the annexed Plan of Merger, and have directed
that this Reorganization Agreement and the annexed Plan of Merger and all
resolutions adopted by said Boards of Directors and by the CBI Shareholders and
INTERIM Shareholder related to this Reorganization Agreement, be submitted with
appropriate applications to, and filed with the Board of Governors of the
Federal Reserve System (the "Federal Reserve"), the Division of Finance of the
Department of Consumer Affairs Regulation and Licensing of the State of
Missouri (the "Missouri Division"); the Tennessee Department of Financial
Institutions (the "TDFI") and such other regulatory agencies or authorities as
may be necessary in order to obtain all prior governmental authorizations
required to consummate the proposed Merger and the transactions contemplated in
this Reorganization Agreement in accordance with this Reorganization Agreement,
the Plan of Merger and applicable law.
NOW THEREFORE, in consideration of the foregoing premises and the
mutual representations, warranties, covenants and agreements herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties agree as follows:
AGREEMENT
ARTICLE 1
DEFINITIONS
1.1 Definitions. As used in this Reorganization
Agreement, the following terms have the definitions indicated:
REORGANIZATION AGREEMENT - PAGE 3
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"AFFILIATE" of a party means any person, partnership,
corporation, association, limited liability company, business trust, or other
legal entity directly or indirectly controlling, controlled by or under common
Control, as that term is defined herein, with that party.
"APPLICABLE ENVIRONMENTAL LAWS" shall have the meaning
assigned to such term in Section 5.15(a) of this Reorganization Agreement.
"AUDITED FINANCIAL STATEMENTS OF CBI" shall have the meaning
assigned to such term in Section 5.7 of this Reorganization Agreement.
"BALANCE SHEET DATE" shall have the meaning assigned to such
term in Section 5.8 of this Reorganization Agreement.
"BHCA" shall mean the Bank Holding Company Act of 1956, as
amended.
"BUSINESS DAY" shall mean any Monday, Tuesday, Wednesday,
Thursday or Friday that is not a federal or state holiday generally recognized
or observed by banks in the States of Missouri or Tennessee.
"CBI" means Capital Bancorporation, Inc., a corporation
chartered and existing under the laws of the State of Missouri which is
registered as a bank holding company under the BHCA and whose principal offices
are located at 407 North Kingshighway, Cape Girardeau, Cape Girardeau County,
Missouri 63701.
"CBI COMMON STOCK" has the meaning assigned to such term in
Section 3.1(d) of this Reorganization Agreement.
"CBI COMPANIES" shall mean CBI and all of its Subsidiaries,
whether direct or indirect.
"CBI EMPLOYEE PLANS" shall mean any pension plans, profit
sharing plans, deferred compensation plans, stock option plans, cafeteria
plans, and any other such or related benefit plans or arrangements offered or
funded by CBI or any CBI Subsidiary, to or for the benefit of the officers,
directors or employees of CBI or any CBI Subsidiary.
"CBI RECORD HOLDERS" means those Persons who shall be the
holders of record of all of the issued and outstanding shares of CBI Common
Stock immediately prior to the Effective Time of the Merger.
"CBI SERIES C PREFERRED STOCK" shall have the meaning assigned
in Section 5.19.
REORGANIZATION AGREEMENT - PAGE 4
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"CBI SHAREHOLDERS" shall have the meaning assigned to such
term in Recital C of this Reorganization Agreement.
"CBI STOCK OPTIONS" shall have the meaning assigned to such
term in Section 2.7 of this Reorganization Agreement.
"CBI FINANCIAL SUBSIDIARIES" shall have the meaning assigned
in the Preamble.
"CERCLA" shall have the meaning set forth in Section 5.15(a)
of this Reorganization Agreement.
"CLOSING" shall have the meaning assigned to such term in
Section 3.1(a) of this Reorganization Agreement.
"CLOSING DATE" shall have the meaning assigned to such term in
Section 3.2 of this Reorganization Agreement.
"COMPTROLLER" shall mean the Office of the Comptroller of the
Currency, or any successor thereto.
"CONSIDERATION" shall mean the value to be received by the CBI
Record Holders in exchange for their shares of CBI Common Stock, such value to
be determined as provided in Article 3, Section 3.1(e), of this Reorganization
Agreement.
"CONTROL" shall have the meaning assigned to such term in
Section 2(a)(2) of the Bank Holding Company Act of 1956, as amended.
"DEPOSITS" shall mean all deposits (including, but not limited
to, certificates of deposit, savings accounts, NOW accounts and checking
accounts) of the CBI Financial Subsidiaries and other deposit-taking
Affiliates.
"EFFECTIVE DATE OF THE MERGER" shall mean that date on which
the Effective Time of the Merger shall have occurred.
"EFFECTIVE TIME OF THE MERGER" shall have the meaning assigned
in Section 3.3 of the Plan of Merger and Section 3.1(b) of this Reorganization
Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"EXCHANGE AGENT" shall mean Union Planters National Bank,
Memphis, Tennessee, a wholly-owned subsidiary of UPC, acting through its
Corporate Trust Department.
"EXCHANGE RATIO" shall have the meaning assigned to such term
in Section 3.1(e) of this Reorganization Agreement.
REORGANIZATION AGREEMENT - PAGE 5
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"FDIC" means the Federal Deposit Insurance Corporation, or any
successor thereto.
"FEDERAL RESERVE" shall mean the Board of Governors of the
Federal Reserve System and shall include the Federal Reserve Bank of St. Louis
when acting under delegated authority.
"FIXED ASSETS" shall mean the furniture, fixtures and
equipment of the referenced Party.
"GAAP" shall mean generally accepted accounting principles as
in effect from time to time, consistently applied.
"GOVERNMENT APPROVALS" shall have the meaning assigned to such
term in Section 4.4 of this Reorganization Agreement.
"HOLA" shall mean the Home Owners' Loan Act of 1933, as
amended and recodified.
"HAZARDOUS SUBSTANCES" shall have the meaning set forth in
Section 5.15(a) of this Reorganization Agreement.
"INTERIM" shall mean CBI Acquisition Company, Inc., a
corporation chartered and existing under the laws of the State of Tennessee,
whose principal place of business is located at 7130 Goodlett Farms Parkway,
Memphis, Shelby County, Tennessee 38018, and which is a wholly-owned subsidiary
of UPC formed solely to effect the Merger.
"INTERIM COMMON STOCK" shall have the meaning assigned to such
term in Section 3.1(c) of this Reorganization Agreement.
"IRC" shall mean the Internal Revenue Code of 1986, as amended.
"MERGER" shall, as described in Section 2.1 of this
Reorganization Agreement, mean the merger of CBI with and into INTERIM, in
which INTERIM shall survive the Merger as the Surviving Corporation.
"MISSOURI CODE" shall mean the Revised Statutes of the State
of Missouri 1994.
"MISSOURI DIVISION" shall mean the Division of Finance of the
Department of Consumer Affairs Regulation and Licensing of the State of
Missouri.
"NYSE" shall mean the New York Stock Exchange, or its
successor, upon which shares of the UPC Common Stock are listed for trading.
REORGANIZATION AGREEMENT - PAGE 6
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"1933 ACT" shall mean the Securities Act of 1933, as amended.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"OFFICER" shall have the meaning set forth in Section 5.8(k)
of this Reorganization Agreement.
"ORE" shall mean real estate and other property acquired
through foreclosure, deed in lieu of foreclosure or similar procedures.
"OTS" shall mean the Office of Thrift Supervision, or any
successor thereto.
"PARTIES" shall mean CBI, UPC and INTERIM collectively; CBI on
the one hand or UPC and INTERIM on the other hand, may sometimes be referred to
as a "PARTY."
"PENSION PLAN" shall mean any employee pension benefit plan as
such term is defined in Section 3(2) of ERISA which is maintained by the
referenced Party.
"PERSON" shall mean any natural person, fiduciary,
corporation, partnership, joint venture, association, business trust or any
other entity of any kind.
"PLAN OF MERGER" shall mean the Plan of Merger substantially
in the form of Exhibit A hereto to be executed by authorized representatives of
CBI, UPC and INTERIM and filed with the Tennessee Secretary of State along with
Articles of Merger prepared in accordance with Section 48-21-107 of the
Tennessee Code and providing for the Merger of CBI with and into INTERIM, the
Surviving Corporation, as contemplated by Section 2.1 of this Reorganization
Agreement.
"PROPERTY" shall have the meaning assigned to such term in
Section 5.15(a) of this Reorganization Agreement.
"PROXY STATEMENT" shall mean the proxy statement to be used by
CBI to solicit proxies with a view to securing the approval of the CBI
Shareholders of this Reorganization Agreement and the Plan of Merger.
"REALTY" means the real property of CBI or of any CBI
Subsidiary owned or leased by CBI or any CBI Subsidiary.
"RECORDS" means all available records, minutes of meetings of
the Board of Directors, committees and shareholders of CBI or any CBI
Subsidiary; original instruments and other
REORGANIZATION AGREEMENT - PAGE 7
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documentation, pertaining to CBI or any CBI Subsidiary, CBI's or any CBI
Subsidiary's assets (including plans and specifications relating to the
Realty), CBI's or any CBI Subsidiary's liabilities, the CBI Common Stock, the
common stock of any CBI Subsidiary, the Deposits and the loans; and all other
business and financial records which are necessary or customary for use in the
conduct of CBI's or any CBI Subsidiary's business by UPC or CBI on and after
the Effective Time of the Merger as it was conducted prior to the Closing Date.
"REGULATORY AUTHORITIES" shall mean, collectively, the Federal
Reserve, the Missouri Division, the TDFI, the SEC, or any other state or
federal governmental or quasi-governmental entity which has, or may hereafter
have, jurisdiction over any aspect of any of the transactions described in this
Reorganization Agreement.
"RELEASE" shall have the meaning assigned to such term in
Section 5.15(b)(i) of this Reorganization Agreement.
"REORGANIZATION" shall mean the Merger (as described in
Section 2.1 of this Reorganization Agreement) and the ancillary transactions
contemplated in this Reorganization Agreement and the Plan of Merger annexed
hereto as Exhibit A.
"REORGANIZATION AGREEMENT" means collectively this Agreement
and Plan of Reorganization together with the Plan of Merger (Exhibit A) and all
Exhibits and Schedules annexed to, and incorporated by specific reference as a
part of, this Reorganization Agreement except where the context indicates
otherwise.
"SEC" shall mean the United States Securities and Exchange
Commission, or any successor thereto.
"SEC DOCUMENTS" shall mean all reports, proxy statements and
registration statements filed, or required to be filed, by a Party or any of
its Subsidiaries pursuant to the Securities Laws, whether filed, or required to
be filed, with the SEC, the OTS, the Comptroller, the FDIC, the Missouri
Division, the TDFI, the Federal Reserve or with any other Regulatory Authority
pursuant to the Securities Laws.
"SECURITIES LAWS" shall mean the 1933 Act, the 1934 Act, the
Investment Company Act of 1940, as amended, the Investment Advisors Act of
1940, as amended, the Trust Indenture Act of 1939, as amended, and the rules
and regulations of the SEC promulgated thereunder, as well as any similar state
securities laws and any similar rules and regulations promulgated by the
applicable federal or state bank Regulatory Authorities.
REORGANIZATION AGREEMENT - PAGE 8
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"SHAREHOLDERS MEETING" shall mean the Special Meeting of the
CBI Shareholders to be held pursuant to Section 7.1 of this Reorganization
Agreement, including any adjournment or adjournments thereof.
"SUBSIDIARIES" shall mean all of those corporations, banks,
associations or other entities of which the entity in question owns or controls
5% or more of the outstanding voting equity securities either directly or
through an unbroken chain of entities as to each of which 5% or more of the
outstanding equity securities is owned directly or indirectly by its parent;
provided, however, that there shall not be included any such entity acquired
through foreclosure or in satisfaction of a debt previously contracted in good
faith, any such entity that owns or operates an automatic teller machine
interchange network, any such entity that is a joint venture of the parent or
of a Subsidiary of the parent, or any such entity the equity securities of
which are owned or controlled in a fiduciary capacity or through a small
business investment corporation.
"SURVIVING CORPORATION" shall mean INTERIM as the corporation
resulting from and surviving the consummation of the Merger as set forth in
Section 2.1(a) of this Reorganization Agreement.
"TENNESSEE CODE" shall mean the Tennessee Code Annotated, as
amended.
"TDFI" shall mean the Tennessee Department of Financial
Institutions.
"TENNESSEE COMMISSIONER" shall mean the Commissioner of
Financial Institutions of the State of Tennessee.
"UPC" means Union Planters Corporation, a corporation
chartered and existing under the laws of the State of Tennessee which is
registered both as a bank holding company and as a savings and loan holding
company and whose principal offices are located at 7130 Goodlett Farms Parkway,
Memphis, Shelby County, Tennessee 38018.
"UPC COMMON STOCK" shall have the meaning set forth in Section
4.5 of this Reorganization Agreement.
"UPC FINANCIAL STATEMENTS" shall mean (i) the audited
consolidated balance sheets as of December 31, 1994 and 1993 and the related
consolidated statements of earnings, of changes in shareholders' equity, and of
cash flows for the three years ended December 31, 1994 (including related
notes) of UPC and its Subsidiaries and as of each subsequent December 31 prior
to the Effective Time of the Merger, and (ii) the quarterly unaudited
REORGANIZATION AGREEMENT - PAGE 9
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consolidated balance sheets and related consolidated statements of earnings, of
changes in shareholders' equity, and of cash flows (including related notes) of
UPC and its Subsidiaries for each of the quarters ended or ending after January
1, 1995, as filed by UPC in SEC Documents.
"UPC PREFERRED STOCK" shall have the meaning assigned to such
term in Section 4.5 of this Reorganization Agreement.
ARTICLE 2
TERMS OF THE REORGANIZATION
2.1 The Merger. Subject to the satisfaction (or the
lawful waiver) of all of the conditions to the obligations of each of the
Parties to this Reorganization Agreement, at the Effective Time of the Merger,
CBI shall be merged with and into INTERIM (the "Merger"). INTERIM shall
survive the Merger as the "Surviving Corporation."
2.2 Charter, Bylaws, Directors, Officers and Name of the
Surviving Corporation.
(a) Charter. At the Effective Time of the
Merger, the Charter of INTERIM as in effect immediately prior to the Effective
Time of the Merger, shall continue to be the Charter of INTERIM as the
Surviving Corporation unless and until the same shall be amended thereafter as
provided by law and the terms of such Charter.
(b) Bylaws. At the Effective Time of the Merger,
the Bylaws of INTERIM, as in effect immediately prior to the Effective Time of
the Merger, shall continue to be the Bylaws of INTERIM as the Surviving
Corporation unless and until amended or repealed as provided by law, its
Charter and such Bylaws.
(c) Directors and Officers. The directors and
officers of INTERIM in office immediately prior to the Effective Time of the
Merger shall continue to be the directors and officers of the Surviving
Corporation subsequent to the Effective Time of the Merger and to hold office
as provided in the Charter and Bylaws of the Surviving Corporation unless and
until their successors shall have been elected or appointed and shall have
qualified or until they shall have been removed in the manner provided therein.
(d) Name. At the Effective Time of the Merger,
the name of INTERIM as the Surviving Corporation of the Merger shall be changed
to and be: CAPITAL BANCORPORATION, INC.
REORGANIZATION AGREEMENT - PAGE 10
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2.3 Due Diligence Review. At the time of execution of
this Reorganization Agreement, neither Party has received from the other
Party(ies) any Schedules of Exceptions which are to become a part of this
Reorganization Agreement and no Party has conducted its due diligence
investigation of the other(s). Within 15 days after the date of this
Reorganization Agreement, each Party shall deliver to the opposite Party(ies)
any Schedules of Exceptions which it is required or may desire to provide
hereunder. Upon execution hereof, each Party shall be entitled forthwith to
commence its due diligence review of the books, records and operations of the
other Party, including, but not limited to, a review of the other Party's loan
portfolios, ORE and classified assets, investment portfolios and properties, to
verify the quality of such assets, the adequacy of any allowances or reserves
which have been provided against them and the reasonableness of the other
Party's earnings projections, growth projections and sustained earnings
prospects after consummation of the Merger at reasonable growth rates;
provided, however, that any review conducted by a Party pursuant to the
provisions of this Section 2.3 shall be completed within thirty (30) days from
the date of this Reorganization Agreement or within fifteen (15) days of
receipt of all Schedules of Exceptions from the opposite Party, whichever shall
be the longer period. Should, as a result of such review, either Party find in
good faith that the allowances/reserves provided by the other Party are
insufficient to absorb any losses inherent in such other Party's assets or that
the earnings projections, growth projections or sustained earnings prospects
provided by the other Party are not likely to be achieved or maintained after
consummation of the Merger, it may, prior to the expiration of said due
diligence review period (as extended by failure of a Party to provide its
Schedules of Exceptions on a timely basis), terminate this Reorganization
Agreement without penalty by giving the other Party written notice of such
termination in the manner provided in Section 10.1. Nothing in this Section
2.3 shall be construed to limit the right of any party to continue its due
diligence review through the Closing Date.
2.4 Availability of Information. Promptly after the
execution by the Parties of this Reorganization Agreement, each Party shall
provide to the other Party, its Officers, employees, agents, and
representatives access, on reasonable notice and during customary business
hours, to all of the books, records, properties and facilities of the Party and
shall use its best efforts to cause its Officers, employees, agents and
representatives to cooperate with any of the reviewing Party's reasonable
requests for information which would be customary in order to conduct the
review provided for in Section 2.3 of this Reorganization Agreement as well as
its ongoing review through Closing. Except as expressly permitted by the
disclosing Party, the receiving Party shall keep confidential all non-public
REORGANIZATION AGREEMENT - PAGE 11
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information received by the disclosing Party in connection with the provisions
of this Section 2.4, which covenant shall survive the Closing of this
Reorganization Agreement.
2.5 UPC's Right to Revise the Structure of the
Transaction. UPC shall have the unilateral right to revise the structure of
the corporate reorganization contemplated by this Reorganization Agreement in
order to achieve tax benefits or for any other reason which UPC may deem
advisable; provided, however, that UPC shall not have the right, without the
approval of the Board of Directors of CBI, to make any revision to the
structure of the Reorganization which (i) changes the amount of the
Consideration which the CBI Record Holders are entitled to receive [determined
in the manner provided in Section 3.1(e) of this Reorganization Agreement];
(ii) changes the intended tax-free effect of the Merger to UPC, INTERIM, CBI or
to any CBI Shareholder or CBI Subsidiary; or (iii) would permit UPC to pay the
Consideration other than by delivery of shares of UPC Common Stock registered
with the SEC (in the manner described in Section 6.2 of this Reorganization
Agreement). UPC may exercise this right of revision by giving written Notice
to CBI in the manner provided in Section 10.1 of this Reorganization Agreement,
which Notice shall be in the form of an amendment to this Reorganization
Agreement or in the form of an Amended and Restated Agreement and Plan of
Reorganization.
2.6 Holding Period of UPC Common Stock. CBI hereby
acknowledges and agrees that, in order to qualify the Merger under the IRC as a
tax-free reorganization, any CBI Record Holder who would be deemed an Affiliate
of CBI at the time of Closing under the Securities Laws and who shall accept
shares of UPC Common Stock as Consideration for the cancellation, exchange and
conversion of his or her shares of CBI Common Stock pursuant to the terms and
conditions of this Reorganization Agreement, shall not pledge, assign, sell,
transfer, or otherwise alienate or take any action which would eliminate or
diminish the risk of owning or holding the shares of UPC Common Stock to be
received by such CBI Record Holder upon consummation of the Merger, nor shall
such Affiliate enter into any formal or informal agreement to pledge, assign,
sell or transfer or otherwise alienate his right, title or interest in any of
the shares of UPC Common Stock to be delivered by UPC to such CBI Record Holder
pursuant to the terms and conditions of this Reorganization Agreement except in
accordance with the Securities Laws and consistently with the transaction being
treated as one or more tax-free "reorganizations" as defined in Section 368 of
the IRC. Moreover, no person who would be deemed an Affiliate of CBI shall
pledge, assign, sell, transfer, or otherwise alienate or take any action which
would eliminate or diminish the risk of owning or holding the shares of UPC
Common Stock to be received by such CBI Record Holder upon consummation of the
Merger or enter into any
REORGANIZATION AGREEMENT - PAGE 12
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formal or informal agreement to pledge, assign, sell or transfer or otherwise
alienate his right, title or interest in any of the shares of UPC Common Stock
to be delivered by UPC to such CBI Record Holder pursuant to the terms and
conditions of this Reorganization Agreement until there shall have been
published financial information which reflects the results of combined
operations of UPC and CBI for a period of not less than 30 days in order to
permit the Parties to account for the acquisition of CBI by UPC as a "pooling
of interests" under Accounting Principles Bulletin No. 16 and GAAP.
CBI further acknowledges and agrees that any certificates representing
and evidencing UPC Common Stock issued in connection with the Merger to CBI
Record Holders who would be deemed Affiliates of CBI or UPC at the time of
Closing under the Securities Laws shall be subject to, and bear two restrictive
legends in substantially the following form:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE SHALL NOT BE
PLEDGED, ASSIGNED, SOLD, TRANSFERRED, OR OTHERWISE ALIENATED NOR SHALL
THE HOLDER TAKE ANY ACTION WHICH WOULD ELIMINATE OR DIMINISH THE RISK
OF OWNING OR HOLDING SUCH SHARES OR ENTER INTO ANY FORMAL OR INFORMAL
AGREEMENT TO PLEDGE, ASSIGN, SELL, TRANSFER OR OTHERWISE ALIENATE THE
HOLDER'S RIGHT, TITLE OR INTEREST IN ANY OF THE SHARES OF STOCK
REPRESENTED BY THIS CERTIFICATE UNTIL THERE SHALL HAVE BEEN PUBLISHED
FINANCIAL INFORMATION CONCERNING UNION PLANTERS CORPORATION
("UPC") WHICH REFLECTS THE RESULTS OF THE COMBINED OPERATIONS OF UPC
AND CAPITAL BANCORPORATION, INC. FOR A PERIOD OF NOT LESS THAN 30
DAYS.
IN ADDITION, THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE
HELD SUBJECT TO ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THE RULES AND REGULATIONS
PROMULGATED BY THE SECURITIES AND EXCHANGE COMMISSION ("SEC")
THEREUNDER. NO SALES, TRANSFERS OR OTHER DISPOSITION OF THESE SHARES
MAY BE MADE EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT (OTHER THAN A REGISTRATION STATEMENT ON SEC
FORM S-4) OR UPON THE PRIOR DELIVERY TO UNION PLANTERS CORPORATION
("UPC") OF AN OPINION FROM LEGAL COUNSEL SATISFACTORY TO UPC AND IN
FORM AND SUBSTANCE SATISFACTORY TO UPC AND ITS LEGAL COUNSEL, STATING
THAT SUCH SALE OR OTHER DISPOSITION IS BEING MADE PURSUANT TO AND IN
ACCORDANCE WITH THE REQUIREMENTS OF SEC RULES 144 AND 145 OR IS
OTHERWISE EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT.
2.7 CBI Stock Options. Except as described in Schedule
2.7 hereto, as of the date of this Reorganization Agreement there are no
validly issued and outstanding options to
REORGANIZATION AGREEMENT - PAGE 13
<PAGE> 20
purchase shares of CBI Common Stock, and no other options, rights, warrants,
scrip or similar rights to purchase shares of CBI Common Stock (collectively,
the "CBI Stock Options") are (or have been) issued and outstanding by CBI.
Therefore, at the Effective Time of the Merger, there will be no issued and
outstanding CBI Stock Options, warrants or similar instruments other than those
described in Schedule 2.7 hereto. Each CBI Stock Option or warrant which shall
be outstanding at the Effective Time of the Merger shall, without any action on
the part of anyone, be automatically converted into an option to acquire at the
exercise price per share of CBI Common Stock that number of shares of UPC
Common Stock as shall be equal to the Exchange Ratio; e.g., assuming that the
Exchange Ratio were 1.185 shares of UPC Common Stock for each share of CBI
Common Stock, a holder of an option or warrant to purchase 100 shares of CBI
Common Stock for $20.00 per share would, upon exercise by paying the exercise
price of $2,000, receive, after aggregation, 118 full shares of UPC Common
Stock and a cash settlement for the remaining .5 share based upon the closing
price of the UPC Common Stock on the date of exercise of the option or warrant.
[100 X 1.185 = 118.5]
2.8 CBI Convertible Subordinated Capital Notes. As of
the date hereof, CBI has outstanding $207,400 in principal amount of 9%
Convertible Subordinated Capital Notes which are due and payable on June 30,
1997 (the "CBI Convertible Notes" or "Notes"). At the option of the holders,
the Notes are convertible into shares of CBI Common Stock prior to maturity at
the rate of one share of CBI Common Stock for each $20.00 of principal
outstanding on the Notes. At the Effective Time of the Merger, without any
action on the part of anyone, the Notes shall automatically be modified such
that each $20.00 of outstanding principal would be convertible at the option of
the holder into that number of shares and fractional shares of UPC Common Stock
which shall be equal to the Exchange Ratio; i.e., assuming that the Exchange
Ratio were 1.185 shares of UPC Common Stock for one share of CBI Common Stock,
$20.00 of outstanding principal would be convertible into 1.185 shares of UPC
Common Stock. (A cash settlement would be paid for any fractional share
remaining after aggregation of all whole and fractional shares to which a CBI
convertible noteholder would be entitled.)
2.9 CBI 9.5% Increasing Rate, Redeemable, Cumulative,
Perpetual Preferred Stock, Series C. At the Effective Time of the Merger, each
share of CBI Series C Preferred Stock which shall be validly issued and
outstanding immediately prior to the Effective Time of the Merger shall, by
virtue of the Merger becoming effective and without any further action on the
part of anyone, be converted, exchanged and cancelled as provided in Section
3.1(d)(1) hereof.
REORGANIZATION AGREEMENT - PAGE 14
<PAGE> 21
2.10 CBI Treasury Stock. Except as described in Schedule
2.10 hereto, within two (2) years prior to the date of this Reorganization
Agreement, CBI has not repurchased any CBI Stock Options and CBI has not
repurchased any shares of its capital stock. Therefore, as of the date of this
Reorganization Agreement, there are no shares of CBI Common Stock held by CBI
as Treasury Stock nor will there be any such shares at the Effective Time of
the Merger.
ARTICLE 3
DESCRIPTION OF THE TRANSACTION
3.1 Terms of the Merger.
(a) Satisfaction of Conditions to Closing. After
the transactions contemplated herein shall have been approved by the
shareholders of CBI and INTERIM and each other condition to the obligations of
the Parties hereto (other than those conditions which are to be satisfied by
delivery of documents by any Party to any other Party) shall have been
satisfied or, if lawfully permitted, waived by the Party or Parties entitled to
the benefits thereof, a closing (the "Closing") shall be held on the date (the
"Closing Date") and at the time of day and place referred to in Section 3.2 of
this Reorganization Agreement. At the Closing the Parties shall use their
respective best efforts to deliver the certificates, letters and opinions which
constitute conditions to effecting the Merger and each Party shall provide the
other Parties with such proof or indication of satisfaction of the conditions
to the obligations of such other Parties to consummate the Merger as such other
Parties may reasonably require. If all conditions to the obligations of each
of the Parties shall have been satisfied or lawfully waived by the Party(ies)
entitled to the benefits thereof, the Parties shall, at the Closing, duly
execute Articles of Merger for filing with the Secretary of State of the State
of Tennessee and its banking authorities and promptly thereafter CBI and
INTERIM shall take all steps necessary or desirable to consummate the Merger in
accordance with all applicable laws, rules and regulations and the Plan of
Merger which is attached hereto as Exhibit A and incorporated by reference as
part of this Reorganization Agreement. The Parties shall thereupon take such
other and further actions as UPC shall direct or as may be required by law or
this Reorganization Agreement to consummate the transactions contemplated
herein.
(b) Effective Time of the Merger. Upon the
satisfaction of all conditions to Closing, the Merger shall become effective
upon the filing of Articles of Merger and other required documentation with the
Secretary of State of the State
REORGANIZATION AGREEMENT - PAGE 15
<PAGE> 22
of Tennessee or on such later date and time as may be specified in such
Articles of Merger (the "Effective Time of the Merger").
(c) Shares of INTERIM to Remain Outstanding.
Each share of $1.00 par value common stock of INTERIM (the "INTERIM Common
Stock") which shall be issued and outstanding immediately prior to the
Effective Time of the Merger shall remain outstanding after the Effective Time
of the Merger as one share of the issued and outstanding common stock of
INTERIM as the Surviving Corporation.
(d) Conversion of Outstanding Shares of CBI.
(1) CBI PREFERRED STOCK. CBI has outstanding
27,600 shares of its Series C Preferred Stock having a stated value
and redemption value of $500.00 per share. The CBI Series C Preferred
Stock is currently redeemable at the option of CBI at $500 per share
together with unpaid accrued dividends thereon with the prior written
consent of the Federal Reserve. Unless earlier redeemed by CBI, the
Series C Preferred Stock shall, as a result of the Merger becoming
effective and without any action on the part of anyone, be converted
exclusively into the right of the holders thereof to receive in cash
Five Hundred Dollars ($500) per share, together with all accrued and
unpaid dividends thereon (whether or not declared) calculated to the
Effective Date of the Merger in the manner provided in CBI's
CERTIFICATE OF PREFERRED STOCK DESIGNATION dated June 10 1992 pursuant
to which the CBI Series C Preferred Stock has been issued.
(2) CBI COMMON STOCK. At the Effective Time
of the Merger, each share of common stock of CBI having a par value of
$.10 per share (the "CBI Common Stock") which shall be validly issued
and outstanding immediately prior to the Effective Time of the Merger
shall, by virtue of the Merger becoming effective and without any
further action on the part of anyone, be converted, exchanged and
cancelled as provided in Section 3.1(e) hereof.
(e) Conversion and Exchange of Shares of CBI
Common Stock; Exchange Ratio. At the Effective Time of the Merger, all
outstanding shares of CBI Common Stock held by the CBI Record Holders
immediately prior to the Effective Time of the Merger shall, without any
further action on the part of anyone, cease to represent any interest (equity,
shareholder or otherwise) in CBI and shall, except for those shares held by any
CBI Record Holders who shall have properly perfected such Holders' dissenters'
rights and shall have maintained the perfected status of such dissenters'
rights through the Effective Time of the Merger, automatically be converted
exclusively into, and constitute only the right of each CBI Record Holder to
REORGANIZATION AGREEMENT - PAGE 16
<PAGE> 23
receive in exchange for such holder's shares of CBI Common Stock, whole shares
of UPC Common Stock and a cash payment in settlement of any fractional share of
UPC Common Stock which shall remain after aggregating all whole and fractional
shares of UPC Common Stock to which the CBI Record Holder is entitled as
provided in this Section 3.1(e). The shares of UPC Common Stock and the cash
settlement of any remaining fractional share of UPC Common Stock deliverable by
UPC to the CBI Record Holders pursuant to the terms of this Reorganization
Agreement are sometimes collectively referred to herein as the "Consideration."
(1) THE EXCHANGE RATIO. Subject to any
adjustments which may be required by an event described in Subsections
3.1(e)(3) and 3.1(e)(4) below, the number of shares of UPC Common
Stock to be exchanged for each share of CBI Common Stock which shall
be issued and outstanding immediately prior to the Effective Time of
the Merger shall be based on an exchange ratio (the "Exchange Ratio")
of One and 185/1000 (1.185) shares of UPC Common Stock for each share
of CBI Common Stock which shall be outstanding immediately prior to
the Effective Time of the Merger. The Exchange Ratio specified in this
Section 3.1(e) is based upon there being no more than an aggregate of
3,067,268 shares of CBI Common Stock validly issued and outstanding
immediately prior to the Effective Time of the Merger in addition to
any shares of CBI Common Stock which shall have been issued in
connection with: (i) the exercise of options or warrants which are
outstanding on the date of this Reorganization Agreement, the
existence of which is specifically disclosed in this Reorganization
Agreement or in a Schedule of Exceptions hereto or (ii) the conversion
of the principal of the CBI Convertible, Subordinated Capital Notes
referred to in Section 2.8, above; provided, however, that no
fractional shares of UPC Common Stock shall be issued in the
transaction and if, after aggregating all of the whole and fractional
shares of UPC Common Stock to which a CBI Record Holder shall be
entitled based upon the Exchange Ratio, there should be a fractional
share of UPC Common Stock remaining, such fractional share shall be
settled by a cash payment therefor pursuant to the Mechanics of
Payment of the Consideration set forth in Section 3.1(f) hereof, which
cash settlement shall be based upon the Current Market Price Per Share
of one (1) full share of UPC Common Stock.
(2) DEFINITION OF "CURRENT MARKET PRICE PER
SHARE." The "Current Market Price Per Share" shall be the average
price per share of the "last" real time trades (i.e., the "closing
price") of the UPC Common Stock on the New York Stock Exchange
("NYSE") Consolidated Tape (the information as published in The Wall
Street Journal,
REORGANIZATION AGREEMENT - PAGE 17
<PAGE> 24
Midwestern Edition, shall be rebuttably presumed to be correct) for
each of the ten (10) general market trading days next preceding the
Closing Date on which the NYSE shall have been open for business (the
"Pricing Period"). In the event the UPC Common Stock should not trade
on one or more of the trading days during the Pricing Period (a "No
Trade Date"), any such No Trade Date shall be disregarded in computing
the average closing price per share of UPC Common Stock and the
average shall be based upon the "last" real time trades and the number
of days on which the UPC Common Stock actually traded on the NYSE
during the Pricing Period.
(3) EFFECT OF EXERCISE OF DISSENTERS' RIGHTS ON THE
EXCHANGE RATIO. Should CBI Record Holders holding as much as seven
percent (7%) of the shares of CBI Common Stock issued and outstanding
at the time of Closing have perfected such CBI Record Holders'
Dissenters' Rights pursuant to the Missouri Code and have maintained
the perfected status of such Dissenters' Rights through the Closing
Date, UPC and INTERIM shall have the right, exercisable in their sole
discretion, to either terminate this Reorganization Agreement without
penalty or, subject to the prior approval of a committee consisting of
those persons who were serving on the CBI Board of Directors
immediately prior to the Effective Time of the Merger, to reduce the
per share Consideration to be delivered by UPC hereunder (i.e., the
Exchange Ratio) by an amount sufficient to offset against the
aggregate Consideration the amount by which (A) the aggregate amount
paid, or required to be paid, by INTERIM as the Surviving Corporation
to such dissenting CBI Record Holders in satisfaction of their
Dissenters' Rights shall exceed (B) the value of the Consideration
which would have been delivered hereunder to such dissenting Record
Holders had they not exercised their Dissenters' Rights. The "value"
referred to in the previous sentence shall be the Current Market Price
Per Share of the UPC Common Stock as defined in Subsection 3.1(e)(2)
above.
(4) EFFECT OF STOCK SPLITS, REVERSE STOCK SPLITS,
STOCK DIVIDENDS AND SIMILAR CHANGES IN THE CAPITAL OF CBI. Should CBI
effect any stock splits, reverse stock splits, stock dividends or
similar changes in its respective capital accounts subsequent to the
date of this Reorganization Agreement but prior to the Effective Time
of the Merger, the Exchange Ratio shall be adjusted in such a manner
as the Board of Directors of UPC shall deem in good faith to be fair
and reasonable in order to give effect to such changes.
REORGANIZATION AGREEMENT - PAGE 18
<PAGE> 25
(f) Mechanics of Payment of Consideration.
(1) THE CBI COMMON STOCK. Within five days after the
Effective Time of the Merger and the receipt of a certified list of
all of the CBI Record Holders, the Corporate Trust Department of Union
Planters National Bank, Memphis, Tennessee (the "Exchange Agent")
shall deliver to each of the CBI Record Holders such materials and
information as may be deemed necessary by the Exchange Agent to advise
the CBI Record Holders of the procedures required for proper surrender
of their certificates formerly evidencing and representing shares of
the CBI Common Stock in order for the CBI Record Holders to receive
the Consideration. Such materials shall include, without limitation,
a Letter of Transmittal, an Instruction Sheet, and a return envelope
addressed to the Exchange Agent (collectively the "Shareholder
Materials"). All Shareholder Materials shall be sent by First Class
United States mail to the CBI Record Holders at the addresses set
forth on a certified shareholder list to be delivered by CBI to UPC at
the Closing (the "Shareholder List"). As soon as reasonably
practicable thereafter, the CBI Record Holders of all of the
outstanding shares of CBI Common Stock, shall deliver, or cause to be
delivered, to the Exchange Agent, pursuant to the Shareholder
Materials, the certificates formerly evidencing and representing all
of the shares of CBI Common Stock which were validly issued and
outstanding immediately prior to the Effective Time of the Merger, and
the Exchange Agent shall take prompt action to process such
certificates formerly evidencing and representing shares of CBI Common
Stock received by it (including the prompt return of any defective
submissions with instructions as to those actions which the Exchange
Agent may deem necessary to remedy any defects). Upon receipt of the
proper submission of the certificate(s) formerly representing and
evidencing ownership of the shares of CBI Common Stock, the Exchange
Agent shall, on or prior to the 10th day after the receipt of such
certificates, mail to the former CBI Record Holders in exchange for
the certificate(s) surrendered by them, the Consideration to be paid
for each such CBI Record Holder's shares of CBI Common Stock evidenced
by the certificate or certificates which were cancelled and converted
exclusively into the right to receive the Consideration upon the
Merger becoming effective. After the Effective Time of the Merger and
until properly surrendered to the Exchange Agent, each outstanding
certificate or certificates which formerly evidenced and represented
the shares of CBI Common Stock of a CBI Record Holder, subject to the
provisions of this Section, shall be deemed for all corporate purposes
to represent and evidence only the right to receive the Consideration
into which such CBI Record Holder's shares of
REORGANIZATION AGREEMENT - PAGE 19
<PAGE> 26
CBI Common Stock were converted and aggregated at the Effective Time
of the Merger. Unless and until the outstanding certificate or
certificates which immediately prior to the Effective Time of the
Merger evidenced and represented the CBI Record Holder's CBI Common
Stock shall have been properly surrendered as provided above, the
Consideration payable to the CBI Record Holder(s) of the cancelled
shares as of any time after the Effective Date shall not be paid to
the CBI Record Holder(s) of such certificate(s) until such
certificates shall have been surrendered in the manner required. No
dividends or other distributions which shall otherwise be payable on
the shares of UPC Common Stock constituting the Consideration shall be
paid to any CBI Record Holders entitled to receive such shares until
such persons shall have surrendered in accordance with the Shareholder
Materials their certificates formerly representing shares of CBI
Common Stock. Upon such proper surrender, there shall be paid to such
person in whose name the shares of UPC Common Stock shall be issued
any dividends or other distributions, the record date of which shall
have occurred between the Effective Time of the Merger and such
surrender, with respect to such shares of UPC Common Stock, without
interest thereon. Each CBI Record Holder will be responsible for all
federal, state and local taxes which may be incurred by him or her on
account of his or her receipt of the Consideration to be paid in the
Merger. The CBI Record Holder(s) of any certificate(s) which shall
have been lost or destroyed may nevertheless, subject to the
provisions of this Section 3.1(f), receive the Consideration to which
each such CBI Record Holder is entitled, provided that each such CBI
Record Holder shall deliver to UPC and to the Exchange Agent: (i) a
sworn statement certifying the fact of such loss or destruction and
specifying the circumstances thereof and (ii) a lost instrument bond
in form satisfactory to UPC and the Exchange Agent which shall have
been duly executed by a corporate surety satisfactory to UPC and the
Exchange Agent, indemnifying the Surviving Corporation, UPC, the
Exchange Agent (and their respective successors) to their satisfaction
against any loss or expense which any of them may incur as a result of
such lost or destroyed certificates being thereafter presented. Any
costs or expenses which may arise from such replacement procedure,
including the premium on the lost instrument bond, shall be for the
account of the CBI Record Holder. Should the Exchange Ratio
potentially be subject to adjustment in the manner provided in
Subsection 3.1(e)(3) above, the Exchange Agent shall, with the
presumed consent of each CBI Record Holder, withhold delivery of the
Consideration until such time as the amount of the adjustment to the
Exchange Ratio shall have been determined upon the proceedings upon
the Dissenters' Rights having
REORGANIZATION AGREEMENT - PAGE 20
<PAGE> 27
become final; provided, however, that if a CBI Record Holder
should so elect in his or her Letter of Transmittal, the Exchange
Agent shall retain for future delivery only such part of the
Consideration as shall be reasonably estimated to be required to
effect the adjustment described in Section 3.1(e)(3) and shall deliver
to the CBI Record Holder the remainder of the Consideration.
(2) THE CBI PREFERRED STOCK. Within five days after
the Effective Time of the Merger and the receipt of a certified list
of all of those persons who shall be holders of record of the CBI
Series C Preferred Stock immediately prior to the Effective Time of
the Merger, the Exchange Agent shall deliver to each of such holders
of CBI Series C Preferred Stock such materials and information as may
be deemed necessary by the Exchange Agent to advise them of the
procedures required for proper surrender of their certificates
formerly evidencing and representing shares of the CBI Series C
Preferred Stock in order for such holders thereof to receive the
consideration into which such shares shall have been converted upon
the Merger becoming effective. Such procedures shall be similar to
the procedures set forth above with respect to the surrender of the
CBI Common Stock; provided, however, that if all of such CBI Series C
Preferred Stock shall be held of record at the Effective Time of the
Merger by Capital Bank of Cape Girardeau County or its successor as
Depositary for the benefit of the holders of Depositary Shares each
representing a 1/25th (or other)interest in a share of CBI Series C
Preferred Stock, the Exchange agent shall, by prior arrangement with
such Depositary, cause to be transferred by wire transfer to the
Depositary against delivery of the certificates formerly evidencing
and representing shares of the CBI Series C Preferred Stock
immediately available funds in an amount sufficient to pay the
redemption price plus unpaid accrued dividends as provided in
Subsection 3.1(d)(1) above. This transfer shall be effected by the
Exchange Agent as soon as practicable after the Effective Time of the
Merger.
(g) Stock Transfer Books. At the Effective Time
of the Merger, the stock transfer books of CBI shall be closed and no transfer
of shares of CBI Common Stock or CBI Series C Preferred Stock shall be made
thereafter.
(h) Effects of the Merger. At the Effective Time
of the Merger, the separate existence of CBI shall cease, and CBI shall be
merged with and into INTERIM which, as the Surviving Corporation, shall
thereupon and thereafter possess all of the assets, rights, privileges,
appointments, powers, licenses, permits and franchises of the two merged
corporations, whether of
REORGANIZATION AGREEMENT - PAGE 21
<PAGE> 28
a public or a private nature, and shall be subject to all of the liabilities,
restrictions, disabilities and duties of both CBI and INTERIM as provided in
Section 48-21-108 of the Tennessee Code.
(i) Transfer of Assets. At the Effective Time of
the Merger, all rights, assets, licenses, permits, franchises and interests of
CBI and INTERIM in and to every type of property, whether real, personal, or
mixed, whether tangible or intangible, and to choses in action shall be deemed
to be vested in INTERIM as the Surviving Corporation by virtue of the Merger
having become effective and without any deed or other instrument or act of
transfer whatsoever as provided in Section 48-21-108(2) of the Tennessee Code..
(j) Assumption of Liabilities. At the Effective
Time of the Merger, the Surviving Corporation shall become and be liable for
all debts, liabilities, obligations and contracts of CBI as well as those of
INTERIM, whether the same shall be matured or unmatured; whether accrued,
absolute, contingent or otherwise; and whether or not reflected or reserved
against in the balance sheets, other financial statements, books of account or
records of CBI or INTERIM as provided in Section 48-21-108(3) of the Tennessee
Code.
(k) Dissenters' Rights of CBI Shareholders. Any
CBI Record Holder of shares of CBI Common Stock who shall comply strictly with
the provisions of Sections 351.455, et seq. of the Missouri Code, shall be
entitled to dissent from the Merger and to seek those appraisal remedies
afforded by the Missouri Code. Such a CBI Shareholder is referred to herein as
a "CBI Dissenting Shareholder." However, UPC and INTERIM shall not be
obligated to consummate the Merger if CBI Record Holders holding or controlling
more than ten percent (10%) of the shares of the CBI Common Stock issued and
outstanding immediately prior to the Effective Time of the Merger shall have
perfected and maintained in perfected status their Dissenters' Rights in
accordance with the Missouri Code and the perfected status of said Dissenters'
Rights shall have continued to the time of Closing.
(l) Reservation, Registration and Listing of
shares of UPC Common Stock. UPC shall reserve for issuance, register under the
Securities Laws and apply for listing for trading on the NYSE a sufficient
number of shares of UPC Common Stock for the purpose of having available such
shares for issuance to the CBI Record Holders of the Consideration to which
they shall become entitled under the provisions of this Reorganization
Agreement and for issuance to the holders of CBI Stock Options, CBI Warrants
and CBI Convertible Notes upon the exercise or conversion thereof.
REORGANIZATION AGREEMENT - PAGE 22
<PAGE> 29
3.2 Time and Place of Closing. The Closing shall take
place at 10:00 a.m. on the Business Day next preceding the date on which the
Effective Time of the Merger is expected to occur, or at such other time as the
Parties, acting through their respective chief executive officers, presidents
or chief financial officers, may mutually agree (the "Closing Date"). The place
of Closing shall be at the Union Planters Administrative Center, Union Planters
Corporation Executive Offices (Fourth Floor), 7130 Goodlett Farms Parkway,
Memphis, Shelby County, Tennessee 38018. The Closing may be held at such other
time or place as may be mutually agreed upon by the Parties.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF UPC AND INTERIM
As of the date hereof and as of the Effective Time of the
Merger, UPC and INTERIM represent and warrant to CBI as follows:
4.1 Organization and Corporate Authority. (a) UPC is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Tennessee. UPC is registered with the Federal Reserve
under the BHCA as a bank holding company. INTERIM is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Tennessee. UPC and INTERIM (i) have, in all material respects, all requisite
corporate power and authority to own, operate and lease their material
properties and to carry on their businesses as they are currently being
conducted; (ii) are in good standing and are duly qualified to do business in
each jurisdiction where the character of their properties owned or held under
lease or the nature of their business makes such qualification necessary; and
(iii) have in effect all material federal, state, local and foreign
governmental authorizations, permits and licenses which are necessary for them
to own or lease their properties and assets and to carry on their businesses as
they are currently being conducted. The corporate Charter and Bylaws of UPC
and the Charter and Bylaws of INTERIM, as amended to date, are in full force
and effect.
(b) Each UPC Subsidiary is duly chartered, validly
existing and in good standing under the laws of the state or jurisdiction of
its incorporation and (i) has all requisite corporate power and authority to
own, operate and lease its properties and to carry on its business as it is
currently being conducted and (ii) is in good standing and is duly qualified to
do business in each jurisdiction where the character of its properties owned or
held under lease or the nature of its
REORGANIZATION AGREEMENT - PAGE 23
<PAGE> 30
business makes such qualification necessary. Each UPC Subsidiary has in effect
all material federal, state, local and foreign governmental authorizations,
permits and licenses necessary for it to own or its respective properties and
assets and to carry on its business as it is currently being conducted.
(c) UPC's bank and thrift Subsidiaries' deposit
accounts are insured by the Bank Insurance Fund (the "BIF") and the Savings
Association Insurance Fund ("SAIF"), respectively, as administered by the FDIC
to the fullest extent permitted under applicable law.
4.2 Authorization, Execution and Delivery; Reorganization
Agreement Not in Breach.
(a) UPC and INTERIM have all requisite corporate
power and authority to execute and deliver this Reorganization Agreement and
the Plan of Merger and to consummate the transactions contemplated hereby and
thereby. This Reorganization Agreement, and all other agreements contemplated
to be executed in connection herewith by UPC and/or INTERIM, have been (or upon
execution will have been) duly executed and delivered by UPC and/or INTERIM,
have been (or upon execution will have been) effectively authorized by all
necessary action, corporate or otherwise, and, other than the approval of UPC
as sole shareholder of INTERIM and UPC's Board of Directors, no other corporate
proceedings on the part of UPC or INTERIM are (or will be) necessary to
authorize such execution and delivery, and constitute (or upon execution will
constitute) legal, valid and enforceable obligations of UPC and INTERIM,
subject as to enforceability, to applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally, and to the application of equitable principles and
judicial discretion.
(b) Except as described in Schedule 4.2(b), the
execution and delivery of this Reorganization Agreement, the consummation of
the transactions contemplated hereby and the fulfillment of the terms hereof
will not result in a violation or breach of any of the terms or provisions of,
or constitute a default under (or an event which, with the passage of time or
the giving of notice or both, would constitute a default under), or conflict
with, or permit the acceleration of any obligation under, any material
mortgage, lease, covenant, agreement, indenture or other instrument to which
UPC or INTERIM or any UPC Subsidiary is a party or by which they or their
property or any of their assets are bound; the corporate Charter and Bylaws of
UPC or the Charter and Bylaws of INTERIM or any UPC Subsidiary; or any material
judgment, decree, order or award of any court, governmental body or arbitrator
by which UPC or INTERIM or any UPC Subsidiary is bound; or any material permit,
concession,
REORGANIZATION AGREEMENT - PAGE 24
<PAGE> 31
grant, franchise, license, law, statute, ordinance, rule or regulation
applicable to UPC or INTERIM or any UPC Subsidiary or their properties; or
result in the creation of any lien, claim, security interest, encumbrance,
charge, restriction or right of any third party of any kind whatsoever upon the
property or assets of UPC or INTERIM or any UPC Subsidiary, except that the
Government Approvals shall be required in order for UPC and INTERIM to
consummate the Merger.
4.3 No Legal Bar. Neither UPC nor INTERIM is a party to,
subject to or bound by any agreement, judgment, order, letter of understanding,
writ, prohibition, injunction or decree of any court or other governmental body
of competent jurisdiction, or any law which would prevent the execution of this
Reorganization Agreement by UPC or INTERIM or the Plan of Merger by INTERIM, or
the delivery thereof to CBI and the CBI Companies or the consummation of the
transactions contemplated hereby or thereby, and no action or proceeding is
pending, or to the best of the knowledge of UPC, INTERIM or any UPC Subsidiary,
threatened against UPC or INTERIM or any UPC Subsidiary in which the validity
of this Reorganization Agreement, any of the transactions contemplated hereby
or any action which has been taken by any of such parties in connection
herewith or in connection with any of the transactions contemplated hereby is
at issue.
4.4 Government and Other Approvals. No consent,
approval, order or authorization of, or registration, declaration or filing
with, any federal, state or local governmental authority is required to be made
or obtained by UPC or INTERIM in connection with the execution and delivery of
this Reorganization Agreement or the consummation of the transactions
contemplated hereby by UPC or INTERIM, except for: (a) the prior approval of
the Board of Governors of the Federal Reserve System (the "Federal Reserve") of
the Merger under the Bank Holding Company Act of 1956, as amended; (b) the
prior approval of the Director of Finance of the Missouri Division under
Sections 362.925, et seq of the Missouri Code and the regulations promulgated
by the Missouri Division thereunder; (c) the prior approval of the Tennessee
Department of Financial Institutions ("TDFI") under Sections 45-12-101 et seq
of the Tennessee Code and the regulations promulgated by the TDFI thereunder;
and (d) if required, the prior approval of the OTS and HOLA, as amended
(collectively, the "Government Approvals"). Neither UPC nor Interim is aware
of any facts, circumstances or reasons why such Government Approvals should not
be forthcoming or which would prevent or hinder such approvals from being
obtained. Except as described in Schedule 4.4, no consent or approval is
required from any non-governmental party in connection with the execution and
delivery of this Reorganization Agreement or the consummation of the
transactions contemplated hereby.
REORGANIZATION AGREEMENT - PAGE 25
<PAGE> 32
4.5 Capitalization. (a) The authorized capital stock of
UPC consists of 10,000,000 shares of preferred stock having no par value (the
"UPC Preferred Stock") and 100,000,000 shares of common stock having a par
value of $5.00 per share (the "UPC Common Stock"). As of March 31, 1995, UPC
had issued and outstanding: 44,000 shares of $8.00 Nonredeemable Cumulative
Convertible Preferred Stock, Series B; 253,655 shares of 9.5% Redeemable,
Cumulative Preferred Stock, Series D; and 3,107,922 shares of 8% Cumulative,
Convertible Preferred Stock, Series E. In addition, 250,000 shares of UPC
Preferred Stock have been reserved for issuance as Series A Preferred Stock
pursuant to the UPC Share Purchase Rights Agreement dated January 19, 1989,
between UPC and Union Planters National Bank as Rights Agent (the "UPC Share
Purchase Rights Agreement"). As of April 30,1995, there were 40,415,368 shares
of UPC Common Stock issued and outstanding. All of the issued and outstanding
shares of UPC Common Stock and UPC Preferred Stock are duly and validly issued
and outstanding and are fully-paid and non-assessable. None of the outstanding
shares of UPC Common Stock or UPC Preferred Stock has been issued in violation
of any preemptive rights.
As of the date hereof, UPC is the holder, directly or indirectly, of
all of the outstanding capital stock of its Subsidiaries, except for directors'
qualifying shares.
(b) The authorized capital stock of INTERIM consists
of 1,000 shares of common stock having a par value of $1.00 per share (the
"INTERIM Common Stock") and no preferred stock. As of the date hereof, INTERIM
had issued all 1,000 shares of the authorized INTERIM Common Stock to UPC.
Therefore, UPC is the record holder and beneficial owner of all of the INTERIM
Common Stock outstanding.
4.6 UPC Financial Statements. UPC has delivered and, to
the extent reference is made to financial statements not yet available or
capable of development, will deliver to CBI true and complete copies of: (i)
UPC's audited Consolidated Financial Statements for the calendar years ended
December 31, 1994 and 1993 (as originally issued, but without giving effect to
subsequently effected business combinations accounted for as poolings of
interests); (ii) UPC's Forms 10-K filed under the 1934 Act for the years ended
December 31, 1994 and 1993, including UPC's annual reports to shareholders
filed as Exhibits 13 thereto; (iii) UPC's unaudited consolidated financial
statements for each of the calendar quarters ending in calendar year 1995 and
thereafter through the Closing Date; and (iv) upon issuance thereof, UPC's
audited Consolidated Financial Statements for the calendar year ending December
31, 1995. Such financial statements and the notes thereto present fairly, or
will present fairly when issued, in all material respects, the consolidated
financial position of UPC at the respective dates thereof and the
REORGANIZATION AGREEMENT - PAGE 26
<PAGE> 33
consolidated results of operations and consolidated cash flow of UPC for the
periods indicated, and in each case in conformity with GAAP consistently
applied and maintained.
4.7 Exchange Act and Listing Filings.
(a) The outstanding shares of UPC Common Stock are
registered with the SEC pursuant to Section 12(b) of the 1934 Act and UPC has
filed with the SEC all material forms and reports required by law to be filed
by UPC with the SEC, which forms and reports, taken as a whole, are true and
correct in all material respects, and do not misstate a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading.
(b) The outstanding shares of UPC Common Stock are
listed for trading on the NYSE (under the symbol "UPC") pursuant to the listing
rules of the NYSE and UPC has made all required filings with the NYSE and has
filed with the NYSE all reports required by the NYSE to be filed by UPC with
the NYSE, which filings and reports, taken as a whole, are true and correct in
all material respects, and do not misstate a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
contained therein, in light of the circumstances under which they were made,
not misleading.
4.8 The UPC Common Stock. All shares of UPC Common Stock
to be issued by UPC and delivered to the CBI Record Holders in exchange for all
of the CBI Common Stock will be duly authorized, validly issued, fully paid and
non-assessable and none of such shares of UPC Common Stock will have been
issued in violation of any preemptive rights of any UPC shareholders. The
shares of UPC Common Stock to be delivered in payment of the Consideration
shall have in all material respects such distinguishing characteristics as
those of the shares of UPC Common Stock which shall be outstanding immediately
prior to the Effective Time of the Merger.
4.9 Litigation. Except as set forth in Schedule 4.9
hereto, there is no action, suit or proceeding pending against UPC or any UPC
Subsidiary, or to the best knowledge of UPC or any UPC Subsidiary, threatened
against or affecting UPC, any UPC Subsidiary or any of their assets, before any
court or arbitrator or any governmental body, agency or official that (i)
would, if decided against UPC or the UPC Subsidiary, have a material adverse
impact on the business, properties, assets, liabilities, condition (financial
or other) or prospects of UPC or any significant UPC Subsidiary and that are
not reflected in the UPC Financial Statements or (ii) has been brought by or on
behalf of
REORGANIZATION AGREEMENT - PAGE 27
<PAGE> 34
any employee employed or formerly employed by UPC or any UPC Subsidiary.
4.10 Labor and Employment Matters. Except as reflected in
Schedule 4.10 hereto, there is no (i) collective bargaining agreement or other
labor agreement to which UPC or any UPC Subsidiary is a party or by which any
of them is bound; (ii) employment, profit sharing, deferred compensation,
bonus, stock option, purchase, retainer, consulting, retirement, welfare or
incentive plan or contract to which UPC or any UPC Subsidiary is a party or by
which it is bound; or (iii) plan or agreement under which "fringe benefits"
(including, but not limited to, vacation plans or programs, sick leave plans or
programs and related benefits) are afforded any of the employees of UPC or any
UPC Subsidiary. No party to any such agreement, plan or contract is in default
with respect to any material term or condition thereof, nor has any event
occurred which, through the passage of time or the giving of notice, or both,
would constitute a default thereunder or would cause the acceleration of any
obligation of any party thereto. Neither UPC nor any UPC Subsidiary has
received notice from any governmental agency of any alleged violation of
applicable laws that remains unresolved respecting employment and employment
practices, terms and conditions of employment and wages and hours. UPC and
each UPC Subsidiary have complied in all material respects with all applicable
laws, rules and regulations relating to the employment of labor, including
those related to its employment practices, employee disabilities, wages, hours,
collective bargaining and the payment and withholding of taxes and other sums
as required by the appropriate governmental authorities, and UPC and each UPC
Subsidiary have withheld and paid to the appropriate governmental authorities
or are holding for payment not yet due to such authorities, all amounts
required to be withheld from the employees of UPC and each UPC Subsidiary and
are not liable for any arrears of wages, taxes, penalties or other sums for
failure to comply with any of the foregoing. Except as set forth in Schedule
4.10, there is no: unfair labor practice complaint against UPC or any UPC
Subsidiary pending before the National Labor Relations Board or any state or
local agency; pending labor strike or other labor trouble affecting UPC or any
UPC Subsidiary; labor grievance pending against UPC or any UPC Subsidiary;
pending representation question respecting the employees of UPC or any UPC
Subsidiary; pending arbitration proceedings arising out of or under any
collective bargaining agreement to which UPC or any UPC Subsidiary is a party,
or to the best knowledge of UPC, any basis for which a claim may be made under
any collective bargaining agreement to which UPC or any UPC Subsidiary is a
party.
4.11 Absence of Undisclosed Liabilities. Except as
described in Schedule 4.11 hereto, neither UPC nor any UPC
REORGANIZATION AGREEMENT - PAGE 28
<PAGE> 35
Subsidiary has any obligation or liability (contingent or otherwise) that is
material to the financial condition or operations of UPC or any significant UPC
Subsidiary, or that, when combined with all similar obligations or liabilities,
would be material to the financial condition or operations of UPC or any
material UPC Subsidiary (i) except as disclosed in the UPC Financial Statements
delivered to CBI prior to the date of this Reorganization Agreement, or (ii)
except obligations or liabilities incurred in the ordinary course of its
business consistent with past practices, or (iii) except as is contemplated
under this Reorganization Agreement. Since December 31, 1994, neither UPC nor
any UPC Subsidiary has incurred or paid any obligation or liability or entered
into any transactions which would be material to the financial condition or
operations of UPC except for obligations paid in connection with transactions
made by it in the ordinary course of its business consistent with past
practices, laws and regulations applicable to UPC, and there has not been any
material change in the capital stock or long-term debt of UPC or any material
adverse change in the condition (financial or otherwise), net worth, business,
affairs, prospects or the results of operations of UPC.
4.12 Disclosure. The information concerning, and the
representations or warranties made by UPC and INTERIM as set forth in this
Reorganization Agreement or in the Schedules of Exceptions of UPC and INTERIM
hereto, or in any document, statement, certificate or other writing furnished
or to be furnished by UPC and INTERIM to CBI pursuant hereto, do not and will
not contain any untrue statement of a material fact and do not and will not
omit to state a material fact required to be stated herein or therein which is
necessary to make the statements and facts contained herein or therein, in
light of the circumstances under which they were or are made, not false or
misleading. Copies of all documents heretofore or hereafter delivered or made
available to CBI by UPC or INTERIM pursuant hereto were or will be complete and
accurate copies of such documents.
4.13 Compliance with Laws. UPC and each UPC Subsidiary:
(a) Is in compliance with all laws, rules,
regulations, reporting and licensing requirements, and orders applicable to its
business or employees conducting its business (including, but not limited to,
those relating to consumer disclosure and currency transaction reporting) the
breach or violation of which would or could reasonably be expected to have a
material adverse effect on the financial condition or operations of UPC or of
any UPC Subsidiary or which would or could reasonably be expected to subject
UPC, or any UPC Subsidiary or any of the directors or officers of UPC or of a
UPC Subsidiary to civil money penalties; and
REORGANIZATION AGREEMENT - PAGE 29
<PAGE> 36
(b) Has received no notification or communication
from any agency or department of federal, state, or local government or any of
the Regulatory Authorities, or the staff thereof (i) asserting that UPC or any
UPC Subsidiary is not in compliance with any of the statutes, rules,
regulations, or ordinances which such governmental authority or Regulatory
Authority enforces, which, as a result of such noncompliance, would result in a
material adverse impact on UPC or on any UPC Subsidiary; (ii) threatening to
revoke any license, franchise, permit, or governmental authorization which is
material to the financial condition or operations of UPC or any UPC Subsidiary;
or (iii) requiring UPC or any UPC Subsidiary to enter into a cease and desist
order, consent, agreement, or memorandum of understanding.
4.14 Reports. Since January 1, 1990, UPC and each UPC
Subsidiary have filed all reports and statements, together with any amendments
required to be made with respect thereto, that it was required to file with (i)
the Tennessee Department, (ii) the Federal Reserve, (iii) the Comptroller, (iv)
the FDIC, (v) the OTS or (vi) the SEC, including, but not limited to, Annual
Reports on Form 10-K; Quarterly Reports on Form 10-Q; Current Reports on Form
8-K; Reports on Form 2900 and FFIEC Forms 032, 033 and 034 and proxy
statements; and (vi) any other applicable federal or state securities or
banking authorities (except, in the case of federal or state securities
authorities, filings which are not material). As of their respective dates,
each of such reports and documents, including the financial statements, tables,
exhibits, and schedules thereto, complied in all material respects with all of
the requirements of the respective forms on which they were filed and with all
of the statutes, rules, and regulations enforced or promulgated by the
Regulatory Authority with which they were filed. All such reports were true
and complete in all material respects and did not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. UPC will provide to
CBI true and correct copies of all such reports filed by UPC or by any UPC
Subsidiary subsequent to January 1, 1990.
4.15 Statements True and Correct. None of the information
prepared by, or on behalf of UPC or by any UPC Subsidiary regarding UPC, any
UPC Subsidiary or any Subsidiary of a UPC Subsidiary included or to be included
in the Proxy Statement to be mailed to CBI's shareholders in connection with
the Shareholders Meeting and any other documents to be filed with the SEC, or
any other Regulatory Authority in connection with the transaction contemplated
herein, will, at the respective times such documents are filed, and, with
respect to the Proxy Statement, when first mailed to the shareholders of CBI,
be false
REORGANIZATION AGREEMENT - PAGE 30
<PAGE> 37
or misleading with respect to any material fact, or omit to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or, in the case of the Proxy
Statement or any amendment thereof or supplement thereto, at the time of the
Shareholders Meeting, be false or misleading with respect to any material fact,
or omit to state any material fact necessary to correct any statement in any
earlier communication with respect to the solicitation of any proxy for the
Shareholders Meeting. All documents which UPC or any UPC Subsidiary is
responsible for filing with the SEC or any other Regulatory Authority in
connection with the transactions contemplated hereby will comply as to form in
all material respects with the provisions of applicable law, including
applicable provisions of the Securities Laws and the rules and regulations
issued thereunder.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF CBI COMPANIES
Both as of the date hereof and as of the Effective Time of the Merger,
both CBI and each of the CBI Financial Subsidiaries represent and warrant to
UPC and INTERIM as follows:
5.1 Organization and Qualification of CBI and
Subsidiaries.
(a) CBI is a corporation duly organized, validly
existing and in good standing under the laws of the State of Missouri and (i)
has all requisite corporate power and authority to own, operate and lease its
properties and to carry on its business as it is currently being conducted;
(ii) is in good standing and is duly qualified to do business in each
jurisdiction where the character of its properties owned or held under lease or
the nature of its business makes such qualification necessary; and (iii) is
registered with the Federal Reserve under the BHCA as a bank holding company.
(b) Each CBI Subsidiary is duly chartered, validly
existing and in good standing under the laws of the state or jurisdiction of
its incorporation and (i) has all requisite corporate power and authority to
own, operate and lease its properties and to carry on its business as it is
currently being conducted and (ii) is in good standing and is duly qualified to
do business in each jurisdiction where the character of its properties owned
or held under lease or the nature of its business makes such qualification
necessary. CBI and each of its Subsidiaries have in effect all material
federal, state, local and foreign governmental authorizations, permits and
licenses
REORGANIZATION AGREEMENT - PAGE 31
<PAGE> 38
necessary for them to own or lease their respective properties and assets and
to carry on their business as it is currently being conducted.
(c) CBI's Financial Subsidiaries are: CAPITAL BANK
OF CAPE GIRARDEAU COUNTY, CAPITAL BANK OF COLUMBIA, CAPITAL BANK OF SOUTHWEST
MISSOURI, CAPITAL BANK AND TRUST and CAPITAL BANK OF SIKESTON, each a
Missouri-chartered banking corporation; CAPITAL BANK OF PERRYVILLE, NATIONAL
ASSOCIATION, a National Banking Association chartered under the Acts of
Congress; and MARYLAND AVENUE BANCORPORATION, INC. and CENTURY STATE
BANCSHARES, INC., Missouri-chartered corporations registered as bank holding
companies. Each is a wholly-owned subsidiary of CBI. If and when HOME FEDERAL
SAVINGS AND LOAN ASSOCIATION, Jonesboro, Arkansas, should become a Subsidiary
of CBI, it shall be included as a CBI Financial Subsidiary for all purposes of
this Reorganization Agreement. Each of said CBI Financial Subsidiaries is duly
organized, validly existing and in good standing under the laws of the State of
its incorporation (or of the United States) and engages only in activities (and
holds properties only of the types) permitted by applicable state and federal
law and the rules and regulations promulgated thereunder by the Missouri
Division, the Federal Reserve, the FDIC and the Comptroller. CBI's bank
Subsidiaries' deposit accounts are insured by the Bank Insurance Fund (the
"BIF") or the Savings Association Insurance Fund (the "SAIF") as administered
by the FDIC to the fullest extent permitted under applicable law.
5.2 Authorization, Execution and Delivery; Reorganization
Agreement Not in Breach.
(a) CBI has all requisite power and authority to
execute and deliver this Reorganization Agreement and the Plan of Merger and to
consummate the transactions contemplated hereby and thereby. The execution and
delivery of this Reorganization Agreement and the Plan of Merger and the
consummation of the proposed transaction have been [or, upon expiration of the
initial due diligence review period described in Section 2.3, will have been]
duly authorized by a majority of the entire Board of Directors of CBI and,
except for the approval of the CBI Shareholders, no other corporate
authorizations on the part of CBI are necessary to authorize the execution and
delivery of this Reorganization Agreement and the Plan of Merger and the
consummation of the transactions contemplated hereby and thereby. This
Reorganization Agreement and all other agreements and instruments herein
contemplated to be executed by CBI or a CBI Financial Subsidiary have been (or
upon execution will have been) duly executed and delivered by CBI or such CBI
Financial Subsidiary and constitute (or upon execution will constitute) legal,
valid and enforceable obligations of CBI or such CBI Financial Subsidiary
subject, as to enforceability, to applicable
REORGANIZATION AGREEMENT - PAGE 32
<PAGE> 39
bankruptcy, insolvency, receivership, conservatorship, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and to the application of equitable principles and judicial
discretion.
(b) Except as described in Schedule 5.2(b)
hereto, the execution and delivery of this Reorganization Agreement and the
Plan of Merger, the consummation of the transactions contemplated hereby and
thereby, and the fulfillment of the terms hereof and thereof will not result in
a violation or breach of any of the terms or provisions of, or constitute a
default under (or an event which, with the passage of time or the giving of
notice, or both, would constitute a default under), or conflict with, or permit
the acceleration of, any obligation under any mortgage, lease, covenant,
agreement, indenture or other instrument to which CBI or any CBI Subsidiary is
a party or by which CBI or any CBI Subsidiary is bound; the Restated Articles
of Incorporation and Bylaws of CBI or the Articles of Incorporation, Articles
of Association or Articles of Agreement and Bylaws of any CBI Subsidiary; or
any judgment, decree, order, regulatory letter of understanding or award of any
court, governmental body, authority or arbitrator by which CBI or any CBI
Subsidiary is bound; or any permit, concession, grant, franchise, license, law,
statute, ordinance, rule or regulation applicable to CBI or any CBI Subsidiary
or the properties of any of them; or result in the creation of any lien, claim,
security interest, encumbrance, charge, restriction or right of any third party
of any kind whatsoever upon the properties or assets of CBI or any CBI
Subsidiary.
5.3 No Legal Bar. Neither CBI nor any CBI Subsidiary is
a party to, or subject to, or bound by, any agreement or judgment, order,
letter of understanding, writ, prohibition, injunction or decree of any court
or other governmental body of competent jurisdiction, or any law which would
prevent the execution of this Reorganization Agreement by CBI or the execution
of the Plan of Merger by CBI, or the delivery thereof to UPC and INTERIM, or
the consummation of the transactions contemplated hereby and thereby, and no
action or proceeding is pending against CBI or any CBI Subsidiary in which the
validity of this Reorganization Agreement, the transaction contemplated hereby
or any action which has been taken by any of such parties in connection
herewith or in connection with the transaction contemplated hereby is at issue.
5.4 Government and Other Approvals. Except for the
Government Approvals described in Section 4.4, no consent, approval, order or
authorization of, or registration, declaration or filing with, any federal,
state or local governmental authority is required to be made or obtained by CBI
or any CBI Subsidiary in connection with the execution and delivery of this
REORGANIZATION AGREEMENT - PAGE 33
<PAGE> 40
Reorganization Agreement or the consummation of the transactions contemplated
by this Reorganization Agreement nor is any consent or approval required from
any landlord, licensor or other non-governmental party in connection with the
execution and delivery of this Reorganization Agreement or the Plan of Merger
or the consummation of the transactions contemplated therein. Neither CBI nor
any CBI Subsidiary is aware of any facts, circumstances or reasons why such
Government Approvals should not be forthcoming or which would prevent or hinder
such approvals from being obtained.
5.5 Compliance With Law. CBI and all CBI Subsidiaries
hold all licenses, franchises, permits and authorizations necessary for the
lawful conduct of their respective businesses, and CBI and each CBI Subsidiary,
respectively, as the owners of the Realty have complied in all material
respects with all applicable statutes, laws, ordinances, rules and regulations
of all federal, state and local governmental bodies, agencies and subdivisions
having, asserting or claiming jurisdiction over CBI's or any CBI Subsidiary's
properties or over any other part of CBI's or any CBI Subsidiary's assets,
liabilities or operations. The benefits of all of such licenses, franchises,
permits and authorizations are in full force and effect and may continue to be
enjoyed by CBI and each CBI Subsidiary subsequent to the Closing of the
transactions contemplated herein without any consent or approval. Neither CBI
nor any CBI Subsidiary has received notice of any proceeding for the suspension
or revocation of any such license, franchise, permit, or authorization and no
such proceeding is pending or has been threatened by any governmental
authority.
5.6 Charter Documents. Included in Schedule 5.6 hereto
are true and correct copies of the Articles of Incorporation and Bylaws of CBI
and the Articles of Incorporation or Articles of Association or Articles of
Agreement and Bylaws of each CBI Subsidiary, respectively. The Articles of
Incorporation and Bylaws of CBI and the Articles of Incorporation, Articles of
Association or Articles of Agreement and Bylaws of each CBI Subsidiary, as
amended to date, are in full force and effect.
5.7 CBI Financial Statements. Accompanying Schedule 5.7
hereto are true copies of the audited Consolidated Balance Sheets of Capital
Bancorporation, Inc. and Subsidiaries as of December 31, 1994 and 1993 together
with the related Consolidated Statements of Income, Consolidated Statements of
Changes in Stockholders' Equity and Consolidated Statements of Cash Flows of
CBI for the years ended December 31, 1994, 1993 and 1992 (the "Audited
Financial Statements of CBI") and the unaudited comparative interim (or annual)
consolidated financial statements of CBI for any subsequent quarter ending
after December 31, 1994 and prior to the Closing Date; the audited comparative
parent
REORGANIZATION AGREEMENT - PAGE 34
<PAGE> 41
company only balance sheets of CBI as of December 31, 1994 and 1993; certain
unaudited Selected Consolidated Financial Data of Capital Bancorporation, Inc.
and Subsidiaries for the years ended December 31, 1994, 1993, 1992, 1991 and
1990; and all Call Reports, including any amendments thereto, filed with the
federal bank regulatory authorities by each of CBI's deposit-taking
Subsidiaries, CAPITAL BANK OF CAPE GIRARDEAU COUNTY, CAPITAL BANK OF COLUMBIA,
CAPITAL BANK OF SOUTHWEST MISSOURI, CAPITAL BANK AND TRUST, CAPITAL BANK OF
SIKESTON, CAPITAL BANK OF PERRYVILLE, NATIONAL ASSOCIATION and, if and when it
should be acquired by CBI, HOME FEDERAL SAVINGS AND LOAN ASSOCIATION, for the
years ended December 31, 1994, 1993, 1992 and 1991 together with any
correspondence with the SEC or with any financial institution regulatory
authority concerning any of the aforesaid financial statements. Such financial
statements (i) were (or will be) prepared from the books and records of CBI
and/or each CBI Subsidiary; (ii) were (or will be) prepared in accordance with
GAAP (or, where applicable, regulatory accounting principles) consistently
applied; (iii) accurately present (or, when prepared, will present) CBI's and
each CBI Subsidiary's financial condition and the results of its operations,
changes in stockholders' equity and cash flows at the relevant dates thereof
and for the periods covered thereby; (iv) do contain or reflect (or, when
prepared, will contain and reflect) all necessary adjustments and accruals for
an accurate presentation of CBI's and each CBI Subsidiary's financial condition
and the results of CBI's and each CBI Subsidiary's operations and cash flows
for the periods covered by such Financial Statements; (v) do contain and
reflect (or, when prepared, will contain and reflect) adequate provisions for
loan losses, for ORE reserves and for all reasonably anticipatable liabilities
for all taxes, federal, state, local or foreign, with respect to the periods
then ended; and (vi) do contain and reflect (or, when prepared, will contain
and reflect) adequate provisions for all reasonably anticipated liabilities for
Post Retirement Benefits Other Than Pensions ("OPEB") pursuant to SFAS Nos. 106
and 112.
5.8 Absence of Certain Changes. Except as disclosed in
Schedule 5.8 or as provided for or contemplated in this Reorganization
Agreement, since December 31, 1994 (the "Balance Sheet Date") there has not
been:
(a) any material transaction by CBI or any CBI
Subsidiary not in the ordinary course of business and in conformity with past
practice;
(b) any material adverse change in the business,
property, assets (including loan portfolios), liabilities (whether absolute,
accrued, contingent or otherwise), prospects,
REORGANIZATION AGREEMENT - PAGE 35
<PAGE> 42
operations, liquidity, income, condition (financial or otherwise) or net worth
of CBI or of any CBI Subsidiary;
(c) any damage, destruction or loss, whether or
not covered by insurance, which has had or which may be reasonably expected to
result in a material adverse effect on any of the properties, business or
prospects of CBI or any CBI Subsidiary or their future use and operation by CBI
or any CBI Subsidiary;
(d) any acquisition or disposition by CBI or any
CBI Subsidiary of any property or asset of CBI or any CBI Subsidiary, whether
real or personal, having a fair market value, singularly or in the aggregate
for each CBI Company, in an amount greater than One Hundred Thousand Dollars
($100,000), except in the ordinary course of business and in conformity with
past practice;
(e) any mortgage, pledge or subjection to lien,
charge or encumbrance of any kind on any of the respective properties or assets
of CBI or any CBI Subsidiary, except to secure extensions of credit in the
ordinary course of business and in conformity with past practice;
(f) any amendment, modification or termination of
any contract or agreement, relating to CBI or any CBI Subsidiary, to which CBI
or any CBI Subsidiary is a party which would have an adverse effect upon the
financial condition or operations of CBI or any CBI Subsidiary.
(g) any increase in, or commitment to increase,
the compensation payable or to become payable to any officer, director,
employee or agent of CBI or any CBI Subsidiary, or any bonus payment or similar
arrangement made to or with any of such officers, directors, employees or
agents, other than routine increases made in the ordinary course of business
not exceeding the greater of ten percent (10%) per annum or $6,000 for any of
them individually;
(h) any incurring of, assumption of, or taking
of, by CBI or any CBI Subsidiary, any property subject to, any liability,
except for liabilities incurred or assumed or property taken subsequent to the
Balance Sheet Date in the ordinary course of business and in conformity with
past practice;
(i) any material alteration in the manner of
keeping the books, accounts or Records of CBI or of any CBI Subsidiary, or in
the accounting policies or practices therein reflected;
REORGANIZATION AGREEMENT - PAGE 36
<PAGE> 43
(j) any release or discharge (or partial release
or discharge) of any obligation or liability of any person or entity related to
or arising out of any loan made by CBI or any CBI Subsidiary of any nature
whatsoever, except in the ordinary course of business and in conformity with
past practice; or
(k) any loan or other extension of credit (except
credit card loans, loans secured by certificates of deposit, automobile loans,
passbook loans or home loans) by CBI or any CBI Subsidiary to any Officer,
director or 2% shareholder of CBI or of any CBI Subsidiary or to any Affiliate
of CBI or any CBI Subsidiary; or to any member of the immediate family of such
Officer, director or 2% shareholder of CBI or to any CBI Subsidiary or any
Affiliate of CBI; or to any Person in which such Officer, director or 2%
shareholder directly or indirectly owns beneficially or of record ten percent
(10%) or more of any class of equity securities in the case of a corporation,
or of any equity interest, in the case of a partnership or other non-corporate
entity; or to any trust or estate in which such Officer, director or 2%
shareholder has a ten percent (10%) or more beneficial interest or as to which
such Officer, director or 2% shareholder serves as a trustee or in a similar
capacity. As used in this Section 5.8(k), "Officer" shall refer to a person
who holds the title of chairman, president, executive vice president, senior
vice president, controller, secretary, cashier or treasurer or who performs the
normal duties of such officer whether or not he or she is compensated for such
service or has an official title.
5.9 Deposits. None of the Deposits of any CBI Subsidiary
is a "brokered" Deposit or subject to any encumbrance, legal restraint or other
legal process. Except as set forth in Schedule 5.9, no portion of the Deposits
represents a Deposit by any Affiliate of CBI or any CBI Subsidiary.
5.10 Properties. Except as described in Schedule 5.10
hereto or adequately reserved against in the Audited Financial Statements of
CBI, CBI and each CBI Subsidiary has good and marketable title free and clear
of all material liens, encumbrances, charges, defaults, or equities of whatever
character to all of the material properties and assets, tangible or intangible,
reflected in the Audited Financial Statements of CBI as being owned by CBI or
any CBI Subsidiary as of the dates thereof. All buildings, and all fixtures,
equipment, and other property and assets which are material to the business of
CBI or any of its Subsidiaries held under leases or subleases by CBI or any CBI
Subsidiary, are held under valid instruments enforceable in accordance with
their respective terms (except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or other laws affecting the
enforcement of creditors' rights generally, and except that
REORGANIZATION AGREEMENT - PAGE 37
<PAGE> 44
the availability of the equitable remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceedings
may be pending). The policies of fire, theft, liability, and other insurance
maintained with respect to the properties, assets or businesses of the CBI
Companies provide adequate coverage against loss, and the fidelity bonds in
effect as to which any of the CBI Companies is a named insured are believed to
be sufficient.
5.11 CBI Subsidiaries. Schedule 5.11 hereto lists all of
the active and inactive CBI Subsidiaries (including any Subsidiary of a CBI
Subsidiary) as of the date of this Reorganization Agreement and describes
generally the business activities conducted, or permitted to be conducted by
each CBI Subsidiary. Except as described in Schedule 5.11 hereto, no equity
securities of any of the CBI Subsidiaries are, or may become required to be
issued (other than to CBI or any CBI Subsidiary) by reason of any options,
warrants, scrip, rights to subscribe to, calls, or commitments of any character
whatsoever relating to, or securities or rights convertible into or
exchangeable for, shares of the capital stock of any CBI Subsidiary, and there
are no contracts, commitments, understandings, or arrangements by which any CBI
Subsidiary is bound to issue (other than to CBI) any additional shares of its
capital stock or options, warrants, or rights to purchase or acquire any
additional shares of its capital stock. Except as described in Schedule 5.11
hereto, all of the shares of capital stock of each CBI Subsidiary held by CBI
or by any CBI Subsidiary are fully paid and nonassessable and are owned by CBI
or by such CBI Subsidiary free and clear of any claim, lien, or encumbrance of
any nature whatsoever, whether perfected or not.
5.12 Condition of Fixed Assets and Equipment. Except as
disclosed in Schedule 5.12 hereto, each item of CBI's or any CBI Subsidiary's
fixed assets and equipment having a net book value in excess of One Hundred
Thousand Dollars ($100,000) included in the Fixed Assets is in good operating
condition and repair, normal wear and tear excepted.
5.13 Tax Matters. Except as described in Schedule 5.13
hereto:
(a) all federal, state, local, and foreign tax
returns required to be filed by or on behalf of CBI and each CBI Subsidiary
have been timely filed or requests for extensions have been timely filed,
granted, and have not expired for periods ended on or before the date of this
Reorganization Agreement, and all returns filed are, and the information
contained therein is, complete and accurate. All tax obligations reflected in
such returns have been paid. As of the date of this Reorganization Agreement,
there is no audit examination, deficiency, or refund
REORGANIZATION AGREEMENT - PAGE 38
<PAGE> 45
litigation or matter in controversy with respect to any taxes that might result
in a determination materially adverse to CBI or any CBI Subsidiary except as
fully reserved for in the Audited Financial Statements of CBI. All taxes,
interest, additions, and penalties due with respect to completed and settled
examinations or concluded litigation have been paid.
(b) Neither CBI nor any CBI Subsidiary has executed
an extension or waiver of any statute of limitations on the assessment or
collection of any tax due that is currently in effect.
(c) Adequate provision for any federal, state,
local, or foreign taxes due or to become due for CBI and all CBI Subsidiaries
for all periods through and including December 31, 1994, has been made and is
reflected on the December 31, 1994 financial statements included in the Audited
Financial Statements of CBI, and have been, and will continue to be made with
respect to periods ending after December 31, 1994.
(d) Deferred taxes of CBI and each CBI Subsidiary
have been and will be provided for in accordance with GAAP.
(e) To the best knowledge of CBI and all CBI
Subsidiaries, neither the Internal Revenue Service nor any foreign, state,
local or other taxing authority is now asserting or threatening to assert
against CBI or any CBI Subsidiary any deficiency or claim for additional taxes,
or interest thereon or penalties in connection therewith. All material income,
payroll, withholding, property, excise, sales, use, franchise and transfer
taxes, and all other taxes, charges, fees, levies or other assessments, imposed
upon CBI by the United States or by any state, municipality, subdivision or
instrumentality of the United States or by any other taxing authority,
including all interest, penalties or additions attributable thereto, which are
due and payable by CBI or any CBI Subsidiary, either have been paid in full, or
have been properly accrued and reflected in the Audited Financial Statements of
CBI referred to in Section 5.7 of this Reorganization Agreement.
5.14 Litigation. Except as set forth in Schedule 5.14
hereto, there is no action, suit or proceeding pending against CBI or any CBI
Subsidiary, or to the best knowledge of CBI or any CBI Subsidiary threatened
against or affecting CBI, any CBI Subsidiary or any of their assets, before any
court or arbitrator or before any governmental body, agency or official that
(i) would, if decided against CBI or the CBI Subsidiary, have a material
adverse impact on the business, properties, assets, liabilities, condition
(financial or other) or prospects of CBI or any CBI Subsidiary and that are not
fully reflected in the Audited Financial Statements of CBI or (ii) which has
been
REORGANIZATION AGREEMENT - PAGE 39
<PAGE> 46
brought by or on behalf of any employee employed or formerly employed by CBI or
any CBI Subsidiary.
5.15 Hazardous Materials.
(a) CBI and all CBI Subsidiaries have obtained
all material permits, licenses and other authorizations which are required to
be obtained by CBI or its Subsidiaries with respect to the Property (as defined
herein) under all Applicable Environmental Laws (as defined herein). All
Property controlled, directly or indirectly, by CBI or any CBI Subsidiary is in
material compliance with the terms and conditions of all of such permits,
licenses and authorizations, and is also in material compliance with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any Applicable Environmental
Laws or in any regulation, code, plan, order, decree, judgment, injunction,
notice or demand letter issued, entered, promulgated or approved thereunder,
except as described in detail in Schedule 5.15 hereto. For purposes hereof,
the following terms shall have the following meanings:
"APPLICABLE ENVIRONMENTAL LAWS" shall mean all federal, state,
local and municipal environmental laws, rules or regulations to the extent
applicable to the Property, including, but not limited to, (a) the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
Section 9601 et seq. ("CERCLA"); (b) the Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901 et seq. "RCRA"; (c) the Federal Water Pollution
Control Act, 33 U.S.C. Section 1251 et seq.; (d) the Clean Air Act, 42 U.S.C.
Section 7401 et seq.; (e) the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1471 et seq.; (f) the Toxic Substances Control Act, 15 U.S.C. Section
2601 et seq.; (g) the Emergency Planning and Community Right-to-Know Act, 42
U.S.C. Section 11001 et seq.; (h) the National Environmental Policy Act, 42
U.S.C. Section 4321 et seq.; (i) the Rivers and Harbours Act of 1899, 33 U.S.C.
Section 401 et seq.; (j) the Occupational Safety and Health Act, 29 U.S.C.
Section 651 et seq.; (k) the Safe Drinking Water Act, 42 U.S.C. Section 300(f)
et seq.; (l) the Oil Pollution Act of 1990, 33 U.S.C. Section 2701 et seq.; (m)
the Missouri Clean Water Law, Title XL Section 644.006 et seq. of the Missouri
Code; (n) the Air Quality Attainment Act, Title XL Section 643.300 et seq. of
the Missouri Code; (o) the "Missouri Air Conservation Law," Title XL Section
643.010 of the Missouri Code; (p) the "Missouri Hazardous Waste Management
Law," Title XVI Section 260.350 of the Missouri Code; (q) the Missouri statutes
dealing with "abandoned or uncontrolled" sites where hazardous waste has been
disposed of illegally or prior to regulation, Title XVI Section 260.435 of the
Missouri Code; (r) the Arkansas Water and Air Pollution Control Act, Section
8-4-101 et seq. of the Arkansas Code of 1987 Annotated; (s) the Arkansas Solid
Waste Management
REORGANIZATION AGREEMENT - PAGE 40
<PAGE> 47
Act, Section 8-6-201 et seq. of the Arkansas Code of 1987 Annotated; (t) the
Hazardous Waste Management Act of 1979, Section 8-7-301 et seq. of the Arkansas
Code of 1987 Annotated; (u) the Arkansas Resource Reclamation Act of 1979,
Section 8-7-301 et seq. of the Arkansas Code of 1987 Annotated; (v) the
Emergency Response Fund Act, Section 8-7-401 et seq. of the Arkansas Code of
1987 Annotated; (w) Remedial Act Trust Fund Act, Section 8-7-501 et seq. of the
Arkansas Code of 1987 Annotated; (x) the Arkansas statute dealing with
Regulated Substance Storage Tanks, Sections 8-7-801 et seq. of the Arkansas
Code of 1987 Annotated; (y) the Petroleum Storage Tank Trust Fund Act, Sections
8-7-901 et seq. of the Arkansas Code of 1987 Annotated; (z) any amendments to
the foregoing Acts and regulations as may be adopted from time to time on or
before the Closing; and (aa) any rule, regulation, order, injunction, judgment,
declaration or decree implementing or interpreting any of the foregoing Acts,
as amended.
"HAZARDOUS SUBSTANCES" shall mean any substance, material,
waste, or pollutant that is now (or prior to the Closing) 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 of CBI or any CBI Subsidiary or its use or operation, including,
without limitation, (a) any substance, material, element, compound, mixture,
solution, waste, chemical or pollutant listed, defined, characterized or
regulated as hazardous, toxic or dangerous under any Applicable Environmental
Laws, (b) petroleum, petroleum derivatives or by-products, and other
hydrocarbons, (c) polychlorinated biphenyls (PCBs), asbestos and urea
formaldehyde, and (d) radioactive substances, materials or waste.
"PROPERTY" shall be deemed to include, but shall not be
limited to, all real property owned, controlled, leased or held by CBI or a CBI
Subsidiary, in whole or in part, solely or in a joint venture or other business
arrangement, either for operational or investment purposes, and whether
assigned, purchased, or obtained through foreclosure (or similar action) or in
satisfaction of debts previously contracted.
(b) In addition, except as set forth in Schedule
5.15(b) hereto:
(i) No notice, notification, demand,
request for information, citation, summons or order has been issued,
no complaint has been filed, no penalty has been assessed and no
investigation or review is pending by any governmental or other entity
with respect to any alleged failure by CBI or any CBI Subsidiary to
have any permit,
REORGANIZATION AGREEMENT - PAGE 41
<PAGE> 48
license or authorization required in connection with the conduct of
the business of CBI or any CBI Subsidiary or with respect to any
generation, treatment, storage, recycling, transportation, release or
disposal, or any release as defined in 42 U.S.C. Section 9601(22)
("Release"), of any Hazardous Substances generated by CBI or any
Affiliate of CBI at the Property;
(ii) To the best knowledge of CBI or any
CBI Subsidiary, none of the Property has received or held any
Hazardous Substances in such amount and in such manner as to
constitute a violation of the Applicable Environmental Laws, and no
Hazardous Substances have been Released or disposed of on, in or under
any of the Property during or prior to CBI's or any CBI Subsidiary's
occupancy thereof, or during or, to the best knowledge of CBI or any
CBI Subsidiary, prior to the occupancy thereof by any assignee or
sublessee of CBI or any CBI Subsidiary, except in compliance with all
Applicable Environmental Laws;
(iii) There are no Hazardous Substances
being stored at any Property or located in, on or upon, any Property
(including the subsurface thereof) or installed or affixed to
structures or equipment on the Property; and there are no underground
storage tanks for Hazardous Substances, active or abandoned, at any
Property; and
(iv) No Hazardous Substances have been
Released during, or to the best knowledge of CBI or any CBI
Subsidiary, prior to CBI's or any CBI Subsidiary's occupancy thereof,
in a reportable quantity, where such a quantity has been established
by statute, ordinance, rule, regulation or order, at, on or under any
Property.
(c) Neither CBI nor any Affiliate of CBI has
transported or arranged for the transportation of any Hazardous Substances to
any location which is listed on the National Priorities List under CERCLA,
listed for possible inclusion on the National Priorities List by the
Environmental Protection Agency in the CERCLA Information System ("CERCLIS") or
on any similar state list or which is the subject of federal, state or local
enforcement actions or other investigations which may lead to claims against
the owner of the Property for cleanup costs, remedial work, damages to natural
resources or for personal injury claims, including, but not limited to, claims
under CERCLA.
(d) Except as set forth in Schedule 5.15(d), no
Hazardous Substances have been generated, recycled, treated, stored, disposed
of or Released by, CBI or any Affiliate of CBI in violation of Applicable
Environmental Laws.
REORGANIZATION AGREEMENT - PAGE 42
<PAGE> 49
(e) No oral or written notification of a Release
of Hazardous Substances has been filed by or on behalf of CBI or any Affiliate
of CBI relating to the Property and no Property is listed or proposed for
listing on the National Priority List promulgated pursuant to CERCLA, on
CERCLIS or on any similar state list of sites requiring investigation or
clean-up.
(f) There are no liens arising under or pursuant
to any Applicable Environmental Laws on any Property, and no government actions
have been taken or, to the best knowledge of CBI, threatened, or are in process
which could subject any of such properties to such liens and none of the
Property would be required to place any notice or restriction relating to the
presence of Hazardous Substances at any Property in any deed to such Property.
(g) Except as described in Schedule 5.15(g)
hereto, there have been no environmental investigations, studies, audits,
tests, reviews or other analyses conducted by or which are in the possession of
CBI or any Affiliate of CBI in relation to any Property, which have not been
made available to UPC.
(h) Neither CBI nor any CBI Subsidiary is aware
of any facts which might suggest that CBI or any CBI Subsidiary has engaged in
any management practice with respect to any of its past or existing borrowers
which could reasonably be expected to subject CBI or any CBI Subsidiary or the
Property to any liability, either directly or indirectly, under the principles
of law as set forth in United States v. Fleet Factors Corporation, 901 F.2d
1550 (11th Cir. 1990).
5.16 Insurance. CBI and each CBI Subsidiary have paid all
material amounts due and payable under any insurance policies and guaranties
applicable to CBI and any CBI Subsidiary and CBI's or any CBI Subsidiary's
assets and operations; all such insurance policies and guaranties are in full
force and effect; and CBI and each CBI Subsidiary and all of CBI's and each CBI
Subsidiary's material Realty and other material properties are insured against
fire, casualty, theft, loss, and such other hazards and occurrences against
which it is customary to insure, all such insurance policies being in amounts
that are adequate and consistent with past practice and experience.
5.17 Labor and Employment Matters. Except as reflected in
Schedule 5.17 hereto, there is no (i) collective bargaining agreement or other
labor agreement to which CBI or any CBI Subsidiary is a party or by which any
of them is bound; (ii) employment, profit sharing, deferred compensation,
bonus, stock option, purchase, retainer, consulting, retirement, welfare or
incentive plan or contract to which CBI or any CBI Subsidiary is a party or by
which it is bound; or (iii) plan or agreement under
REORGANIZATION AGREEMENT - PAGE 43
<PAGE> 50
which "fringe benefits" (including, but not limited to, vacation plans or
programs, sick leave plans or programs and related benefits) are afforded any
of the employees of CBI or any CBI Subsidiary. No party to any such agreement,
plan or contract is in default with respect to any material term or condition
thereof, nor has any event occurred which, through the passage of time or the
giving of notice, or both, would constitute a default thereunder or would cause
the acceleration of any obligation of any party thereto. Neither CBI nor any
CBI Subsidiary has received notice from any governmental agency of any alleged
violation of applicable laws that remains unresolved respecting employment and
employment practices, terms and conditions of employment and wages and hours.
CBI and each CBI Subsidiary have complied in all material respects with all
applicable laws, rules and regulations relating to the employment of labor,
including those related to its employment practices, employee disabilities,
wages, hours, collective bargaining and the payment and withholding of taxes
and other sums as required by the appropriate governmental authorities and CBI
and each CBI Subsidiary have withheld and paid to the appropriate governmental
authorities or are holding for payment not yet due to such authorities all
amounts required to be withheld from the employees of CBI and each CBI
Subsidiary and are not liable for any arrears of wages, taxes, penalties or
other sums for failure to comply with any of the foregoing. Except as set
forth in Schedule 5.17, there is no: unfair labor practice complaint against
CBI or any CBI Subsidiary pending before the National Labor Relations Board or
any state or local agency; pending labor strike or other labor trouble
affecting CBI or any CBI Subsidiary; labor grievance pending against CBI or any
CBI Subsidiary; pending representation question respecting the employees of CBI
or any CBI Subsidiary; pending arbitration proceedings arising out of or under
any collective bargaining agreement to which CBI or any CBI Subsidiary is a
party, or to the best knowledge of CBI, any basis for which a claim may be made
under any collective bargaining agreement to which CBI or any CBI Subsidiary is
a party.
5.18 Records and Documents. The Records of CBI and of
each CBI Subsidiary are and will be sufficient to enable CBI and each such CBI
Subsidiary to continue conducting its business under similar standards as CBI
and each such CBI Subsidiary have heretofore conducted such business.
5.19 Capitalization of CBI. The authorized capital stock
of CBI consists of 6,500,000 shares of common stock having a par value of $.10
per share (the "CBI Common Stock"), 200,000 shares of preferred stock having a
par value of $1.00 per share (the "CBI Preferred Stock") and no other class of
equity security. As of the date of this Reorganization Agreement, (i)
3,067,268 shares of CBI Common Stock were issued and outstanding,
REORGANIZATION AGREEMENT - PAGE 44
<PAGE> 51
(ii) 27,600 shares of CBI's 9.75% Increasing Rate, Redeemable, Cumulative,
Perpetual Preferred Stock, Series C (the "CBI Series C Preferred Stock") were
issued and outstanding; and (iii) no shares of CBI Common Stock or CBI
Preferred Stock were held by CBI as treasury stock . All of the outstanding CBI
Common Stock is validly issued, fully-paid and nonassessable and has not been
issued in violation of any preemptive rights of any CBI Shareholder. Except as
described in Section 2.7 of this Reorganization Agreement or as described on
Schedule 5.19 hereto, as of the date hereof, there are no outstanding
securities or other obligations which are convertible into CBI Common Stock or
into any other equity or debt security of CBI, and there are no outstanding
options, warrants, rights, scrip, rights to subscribe to, calls, puts or other
commitments of any nature which would entitle the holder, upon exercise
thereof, to be issued CBI Common Stock or any other equity or debt security of
CBI. Accordingly, immediately prior to the Effective Time of the Merger, there
will be not more than (nor less than) 3,067,268 shares of CBI Common Stock
issued and outstanding (other than shares which shall have been issued by CBI
incidental to the conversion of certain convertible Notes or incidental to the
exercise of stock options, warrants or similar rights issued prior to the date
hereof, the existence of which has been disclosed in this Reorganization
Agreement or in any Schedule hereto. Except as set forth in Schedule 5.19
hereto, CBI is the beneficial owner and record holder of, and has good and
freely transferable title to, all of the shares of CBI's Subsidiaries' Common
Stock outstanding, which recorded on the books and Records of each CBI
Subsidiary as being held in CBI's name, free and clear of all liens, charges or
encumbrances, and such stock is not subject to any voting trusts, agreements or
similar arrangements or other claims which could affect the ability of CBI to
freely vote such stock in support of the transactions contemplated herein.
5.20 Sole Agreement. Except as described in Schedule 5.20
hereto, with the exception of this Reorganization Agreement, neither CBI, nor
any CBI Subsidiary, nor any Subsidiary of either has been, is or will become a
party to: any letter of intent or agreement to merge, to consolidate, to sell
or purchase assets (other than in the normal course of its business) or to any
other agreement which contemplates the involvement of CBI or any CBI Subsidiary
or any Subsidiary of any CBI Subsidiary (or any of their assets) in any
business combination of any kind; or any agreement obligating CBI or any CBI
Subsidiary to issue or sell or authorize the sale or transfer of CBI Common
Stock or the capital stock of any CBI Subsidiary. Except as described in
Schedule 5.20 hereto, there are no (nor will there be at the Effective Time of
the Merger any) shares of capital stock or other equity securities of CBI
outstanding, except for shares of CBI Common Stock presently issued and
outstanding, and there are
REORGANIZATION AGREEMENT - PAGE 45
<PAGE> 52
no (nor will there be at the Effective Time of the Merger any) outstanding
options, warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into or
exchangeable for, shares of the capital stock of CBI or any CBI Subsidiary, or
contracts, commitments, understandings, or arrangements by which CBI or any CBI
Subsidiary is or may be bound to issue additional shares of their capital stock
or options, warrants, or rights to purchase or acquire any additional shares of
their capital stock. There are no (nor will there be at the Effective Time of
the Merger any) contracts, commitments, understandings, or arrangements by
which CBI or any CBI Subsidiary is or may be bound to transfer or issue to any
third party any shares of the capital stock of any CBI Subsidiary, and there
are no (nor will there be at the Effective Time of the Merger any) contracts,
agreements, understandings or commitments relating to the right of CBI to vote
or to dispose of any such shares.
5.21 Disclosure. The information concerning, and the
representations and warranties made by, CBI and each CBI Subsidiary set forth
in this Reorganization Agreement; or in the Schedules of Exceptions of CBI
hereto; or in any document, statement, certificate or other writing furnished
or to be furnished by CBI or by any CBI Subsidiary to UPC and INTERIM pursuant
hereto, does not and will not contain any untrue statement of a material fact
or omit and will not omit to state a material fact required to be stated herein
or therein necessary to make the statements and facts contained herein or
therein, in light of the circumstances in which they were or are made, not
false or misleading. Copies of all documents heretofore or hereafter delivered
or made available to UPC or INTERIM by CBI or any CBI Subsidiary pursuant
hereto were or will be complete and accurate copies of such documents.
5.22 Absence of Undisclosed Liabilities. Except as
described in Schedule 5.22 hereto, neither CBI nor any CBI Subsidiary has any
obligation or liability (contingent or otherwise) that is material to the
financial condition or operations of CBI or of any CBI Subsidiary, or that,
when combined with all similar obligations or liabilities, would be material to
the financial condition or operations of CBI or any CBI Subsidiary (i) except
as disclosed in the Audited Financial Statements of CBI delivered to UPC prior
to the date of this Reorganization Agreement or (ii) except obligations or
liabilities incurred in the ordinary course of its business consistent with
past practices or (iii) except as contemplated under this Reorganization
Agreement. Since December 31, 1994, neither CBI nor any CBI Subsidiary has
incurred or paid any obligation or liability which would be material to the
financial condition or operations of CBI or such CBI Subsidiary, except for
obligations paid in connection with transactions made by it in
REORGANIZATION AGREEMENT - PAGE 46
<PAGE> 53
the ordinary course of its business consistent with past practices, laws and
regulations applicable to CBI or any CBI Subsidiary.
5.23 Allowance for Possible Loan or ORE Losses. The
"Allowance for possible loan losses" reflected in the Audited Financial
Statements of CBI is (with respect to periods ended on or before December 31,
1994) or will be (with respect to periods ending subsequent to December 31,
1994) adequate in all respects to provide for anticipated losses inherent in
Loans outstanding and with respect to commitments to extend credit or similar
off-balance-sheet items (including accrued interest receivable) as of the dates
thereof. Except as disclosed in Schedule 5.23 hereto, as of the date thereof
neither CBI nor any CBI Subsidiary has any Loan or other extension of credit
which has been criticized or classified by the bank examiners representing any
Regulatory Authority or by its independent auditors as "Other Assets Especially
Mentioned," "Substandard," "Doubtful" or "Loss" or as a "Potential Problem
Loan." The net book value of CBI's assets acquired through foreclosure in
satisfaction of problem loans ("ORE") are carried on the Balance Sheet of the
Audited Financial Statements of CBI at fair value at the time of acquisition
less estimated selling costs which approximates the net realizable value of the
ORE in accordance with the American Institute of Certified Public Accountants'
Statement of Position 92-3.
5.24 Compliance with Laws. CBI and each CBI Subsidiary:
(a) Is in compliance with all laws, rules,
regulations, reporting and licensing requirements, and orders applicable to its
business or employees conducting its business (including, but not limited to,
those relating to consumer disclosure and currency transaction reporting) the
breach or violation of which would or could reasonably be expected to have a
material adverse effect on the financial condition or operations of CBI or of
any CBI Subsidiary or which would or could reasonably be expected to subject
CBI, or any CBI Subsidiary or any of the directors or officers of CBI or of a
CBI Subsidiary to civil money penalties; and
(b) Has received no written notification or
communication from any agency or department of federal, state, or local
government or any of the Regulatory Authorities, or the staff thereof (i)
asserting that CBI or any CBI Subsidiary is not in compliance with any of the
statutes, rules, regulations, or ordinances which such governmental authority
or Regulatory Authority enforces, which, as a result of such noncompliance,
would result in a material adverse impact on CBI or on any CBI Subsidiary; (ii)
threatening to revoke any license, franchise, permit, or governmental
authorization which is material to the financial condition or operations of CBI
or any CBI Subsidiary;
REORGANIZATION AGREEMENT - PAGE 47
<PAGE> 54
or (iii) requiring CBI or any CBI Subsidiary to enter into a cease and desist
order, consent, agreement, or memorandum of understanding.
5.25 Employee Benefit Plans.
(a) CBI has previously provided to UPC true and
complete copies of each "employee pension benefit plan," as defined in Section
3(2) of the Employee Retirement Income Security Act of 1974 ("ERISA") which, to
the best of its knowledge, is subject to any provision of ERISA and covers any
employee, whether active or retired, of CBI or any CBI Subsidiary or any other
entity which is a member of a controlled group or is under common control with
CBI or its Subsidiaries in the manner defined and further described in Section
414(b), (c), or (m) of the IRC of 1986 (the "Code"). Such plans are
hereinafter referred to collectively as the "Employee Pension Benefit Plans",
and each such Employee Pension Benefit Plan is listed in Schedule 5.25(a)
hereto. CBI has also provided to UPC true and complete copies of all trust
agreements, collective bargaining agreements, and insurance contracts related
to such Employee Pension Benefit Plans.
To the best knowledge of CBI and its Subsidiaries,
each Employee Pension Benefit Plan which is intended to be qualified under
Section 401(a) of the IRC is so qualified and each trust forming a part thereof
is exempt from tax pursuant to Section 501(a) of the IRC. Copies of the latest
determination letters concerning the qualified status of each Employee Pension
Benefit Plan which is intended to be qualified under Section 401(a) of the IRC
have been provided to UPC. Requests for determination letters relating to
amendments required to cause such Employee Pension Benefit Plans to be in
compliance with the Tax Equity and Fiscal Responsibility Act of 1982, the
Deficit Reduction Act of 1984, the Retirement Equity Act of 1984 and the IRC
were timely filed and have been received by CBI and its Subsidiaries. Requests
for determination letters relating to any subsequent amendments to such plans
which are currently pending have been provided to UPC. All such requests were
timely and properly filed and appropriate notice of any such filing was timely
and properly provided to affected plan participants and beneficiaries.
To the best knowledge of CBI and its Subsidiaries,
each of the Employee Pension Benefit Plans has been operated in substantial
conformity with the written provisions of the applicable plan documents which
have been delivered to UPC and in compliance with the requirements prescribed
by all statutes, orders, rules, and regulations including, but not limited to,
ERISA and the IRC, which are applicable to such Employee Pension
REORGANIZATION AGREEMENT - PAGE 48
<PAGE> 55
Benefit Plans. To the extent that the operation of an Employee Pension Benefit
Plan shall have materially deviated from the written provisions of the plan,
such operational deviations have been disclosed in Schedule 5.25(a) hereto. In
any event, a violation with respect to the Employee Pension Benefit Plans, the
consequences of which shall not be material, shall not be deemed to constitute
a breach of this warranty and representation.
With respect to Employee Pension Benefit Plans which
are subject to the annual report requirement of ERISA Section 103 or to the
annual return requirement of IRC Section 6047, all required annual reports and
annual returns, or such other documents as may have been required as
alternative means of compliance with the annual report requirement, have been
timely filed. Copies of all such annual returns/reports, including all
attachments and Schedules, for the three (3) plan years immediately preceding
the current date have been delivered to UPC. With respect to Employee Pension
Benefit Plans which complied with the annual return requirement by satisfaction
of an alternate compliance method, any documents required to be filed with the
Department of Labor in satisfaction of such requirements have been provided to
UPC.
With respect to all Employee Pension Benefit Plans
which are subject to the summary plan description requirement of ERISA Section
102, all such summary plan descriptions as were required to be filed with the
Department of Labor and distributed to participants and beneficiaries have been
timely filed and distributed. Copies of all such summary plan descriptions
have been delivered to UPC. No Employee Pension Benefit Plan constitutes a
"multiemployer plan" as defined in Section 4001(a)(3) of ERISA.
No Employee Pension Benefit Plan subject to Part III
of Subtitle B of ERISA or Section 412 of the IRC, or both, has incurred an
"accumulated funding deficiency" within the meaning of IRC Section 412, whether
or not waived. All required contributions to all Employee Pension Benefit
Plans have been timely made. Any penalties or taxes which have been incurred
by CBI or its subsidiaries or by any Employee Pension Benefit Plan with respect
to the timing or amount of payment of any contribution to an Employee Pension
Benefit Plan have been timely paid. The limitations of IRC Section 415 have
not been exceeded with respect to any Employee Pension Benefit Plan or
combination of such plans to which such limitations apply.
To the best knowledge of CBI and its Subsidiaries, no
"reportable event" (as described in Section 4043(b) of ERISA) has occurred with
respect to any Employee Pension Benefit Plan. No Employee Pension Benefit Plan
or any trust created thereunder, nor any "disqualified person" with respect to
the plan (as
REORGANIZATION AGREEMENT - PAGE 49
<PAGE> 56
defined in Section 4975 of the IRC), has engaged in a "prohibited transaction",
as such term is defined in Section 4975 of the IRC, which could subject such
Employee Pension Benefit Plan, any such trust or any such disqualified person
(other than a person for whom neither CBI nor any CBI Subsidiary is directly or
indirectly responsible) to any material liability under Title I of ERISA or to
the imposition of any tax under Section 4975 of the IRC.
No condition exists with regard to any Employee
Pension Benefit Plan which constitutes grounds for the termination of such plan
pursuant to Section 4042 of ERISA.
The fair market value of the assets of any Employee
Pension Benefit Plan which is subject to Title IV of ERISA (excluding for these
purposes any accrued but unpaid contributions) exceeded the present value of
all benefits accrued under any such plan, determined on a termination basis
using the assumptions established by the Pension Benefit Guaranty Corporation
as in effect on such date. Neither CBI nor its Subsidiaries have incurred any
liability under Title IV of ERISA arising in connection with the termination
of, or complete or partial withdrawal from, any plan covered or previously
covered by Title IV of ERISA. The termination of any IRC Section 401(a)
qualified Employee Pension Benefit Plan previously terminated by CBI or any CBI
Subsidiary did not adversely affect the qualification of such Employee Pension
Benefit Plan. The distribution of the assets of any such Employee Pension
Benefit Plan was made or is currently being made in conformity with the
requirements of that Employee Pension Benefit Plan and of applicable legal
requirements and has not resulted in, will not result in, and is reasonably not
anticipated to result in the assessment of any tax, penalty, or excise tax
against such pension plan, its related trusts, the fiduciary and administrators
of the Employee Pension Benefit Plan, CBI or its Subsidiaries, or any
disqualified person (as defined in IRC Section 4975) with respect to the
Employee Pension Benefit Plan.
No tax has been, will be, or is reasonably
anticipated to be imposed under IRC Section 4978, 4978B, or 4979A due to the
operation of an Employee Pension Benefit Plan sponsored by CBI or its
Subsidiaries which is an employee stock ownership plan ("ESOP").
Except as disclosed in Schedule 5.25(a) hereto, all
Employee Pension Benefit Plans were in effect for substantially all of calendar
year 1994. There has been no material amendment of any such plans (other than
amendments required to comply with applicable law) or material increase in the
cost of maintaining such plans or providing benefits thereunder on or after the
last day of the plan year which ended
REORGANIZATION AGREEMENT - PAGE 50
<PAGE> 57
in calendar year 1994 for each such Employee Pension Benefit Plan.
CBI has provided to UPC copies of the annual
actuarial valuation or allocation report for each Employee Pension Benefit Plan
for the three (3) plan years for such plan immediately preceding the current
date. With regard to Employee Pension Benefit Plans which are not intended to
be qualified under Section 401(a) of the IRC, copies of financial statements or
reports containing information regarding the financial accounting expense of
maintaining any such Employee Pension Benefit Plan for the three (3) plan years
preceding the current date have been delivered to UPC.
CBI has provided to UPC copies of all filings
regarding the Employee Pension Benefit Plans which have been made with the
Securities and Exchange Commission for the three (3) plan years preceding the
date hereof.
(b) CBI has furnished to UPC true and complete copies of
each "Employee Welfare Benefit Plan" as defined in Section 3(1) of ERISA,
which, to the best of its knowledge, is subject to any provision of ERISA and
covers any employee, whether active or retired, of CBI or any CBI Subsidiary or
members of a controlled group or entities under common control with CBI or its
Subsidiaries in the manner defined and further described in Section 414(b),
(c), or (m) of the IRC. Such plans are hereinafter referred to collectively as
the "Employee Welfare Benefit Plans", and each such Employee Welfare Benefit
Plan is listed in Schedule 5.25(b) hereto.
CBI has also provided to UPC true and complete copies
of documents establishing all funding instruments for such Employee Welfare
Benefit Plans, including but not limited to, trust agreements, cafeteria plans
(pursuant to IRC Section 125), and voluntary employee beneficiary associations
(pursuant to IRC Section 501(c)(9)). To the best knowledge of CBI and its
Subsidiaries, each of the Employee Welfare Benefit Plans has been operated in
substantial conformity with the written provisions of the plan documents which
have been delivered to UPC and in compliance with the requirements prescribed
by all statutes, orders, rules, and regulations including, but not limited to,
ERISA and the IRC, which are applicable to such Employee Welfare Benefit Plans.
In any event, a violation with respect to the Employee Welfare Benefit Plans,
the consequences of which shall not be material, shall not be deemed to
constitute a breach of this warranty and representation. CBI has provided any
notification required by law to any participant covered under any Employee
Welfare Benefit Plan which has failed to comply with the requirements of any
IRC section which results in the imposition
REORGANIZATION AGREEMENT - PAGE 51
<PAGE> 58
of a tax on benefits provided to such participants under such plan.
With respect to all Employee Welfare Benefit Plans
which are subject to the annual report requirement of ERISA Section 103 or to
the annual return requirement of IRC Section 6039D, all annual reports and
annual returns as were required to be filed pursuant to such sections have been
timely filed. Copies of all such annual returns/reports, including all
attachments and Schedules, for the three (3) plan years immediately preceding
the current date for all plans subject to such requirements have been delivered
to UPC. With respect to all Employee Welfare Benefit Plans which are subject
to the summary plan description requirement of ERISA Section 102, all such
summary plan descriptions as were required to be filed with the Department of
Labor and distributed to participants and beneficiaries have been timely filed
and distributed. Copies of all such summary plan descriptions have been
delivered to UPC.
Except as disclosed in Schedule 5.25(b) hereto, all
Employee Welfare Benefit Plans which are in effect were in effect for
substantially all of calendar year 1994. Except as disclosed in Schedule
5.25(b) hereto, there has been with respect to such Employee Welfare Benefit
Plans no material amendment thereof (except as may have been, or may be
required by applicable law) or material increase in the cost thereof or
benefits payable thereunder on or after January 1, 1995.
No Employee Welfare Benefit Plan or any trust created
thereunder, nor any "party in interest" with respect to the plan (as defined in
Section 3(14) of ERISA), has engaged in a "prohibited transaction", as such
term is defined in Section 406 of ERISA, which could subject such Employee
Welfare Benefit Plan, any such trust, or any party in interest (other than a
person for whom neither CBI nor any CBI Subsidiary is directly or indirectly
responsible) to the imposition of a penalty for such prohibited transaction
under Section 502(i) of ERISA. The Department of Labor has not assessed any
such penalty or served notice to CBI or any of its Subsidiaries that such a
penalty may be imposed upon any Employee Welfare Benefit Plan.
Neither CBI nor any CBI Subsidiary has failed to make
any contribution to, or pay any amount due and owing by CBI or a CBI Subsidiary
under the terms of, an Employee Welfare Benefit Plan. Except as disclosed in
Section 5.25(b) hereto, no claims have been incurred with respect to any
Employee Welfare Benefit Plan which may, to the best knowledge, information and
belief of CBI, constitute a liability for CBI or any CBI Subsidiary after the
application of any insurance, trust or other funds which are applicable to the
payment of such claims.
REORGANIZATION AGREEMENT - PAGE 52
<PAGE> 59
Except as disclosed in Schedule 5.25(b) hereto, to
the best knowledge, information and belief of CBI, no condition exists that
could subject any Employee Welfare Benefit Plan or any person (other than a
person for whom neither CBI or any CBI Subsidiary is directly or indirectly
responsible) to liabilities, damages, losses, taxes, or sanctions that arise
under Section 4980B of the IRC or Sections 601 through 608 of ERISA for failure
to comply with the continuation health care coverage requirements of ERISA
Sections 601 through 608 and IRC Section 4980B with respect to any current or
former employee of CBI or any CBI Subsidiary, or the beneficiaries of such
employee.
(c) CBI has furnished to UPC true and complete copies
and/or descriptions of each plan or arrangement maintained or otherwise
contributed to by CBI or any CBI Subsidiary which is not an Employee Pension
Benefit Plan and is not an Employee Welfare Benefit Plan and which (exclusive
of base salary and base wages) provides for any form of current or deferred
compensation, bonus, stock option, profit sharing, retirement, group health or
insurance, welfare benefits, fringe benefits, or similar plan or arrangement
for the benefit of any employee or class of employees, whether active or
retired, or independent contractors of CBI or any CBI subsidiary. Such plans
and arrangements shall collectively be referred to herein as "Benefit
Arrangements" and all such Benefit Arrangements of CBI and CBI's Subsidiaries
are listed on Schedule 5.25(c) hereto. Except as disclosed in Schedule 5.25(c)
hereto, there are no other benefit arrangements of the CBI companies and all
Benefit Arrangements which are in effect were in effect for substantially all
of calendar year 1994. Except as disclosed in Schedule 5.25(c) hereto, there
has been with respect to Benefit Arrangements no material amendment thereof or
material increase in the cost thereof or benefits payable thereunder on or
after January 1, 1995. There has been no material increase in the base salary
and wage levels of CBI or any CBI Subsidiary and, except in the ordinary course
of business, no change in the terms or conditions of employment (including
severance benefits) compared, in each case, to those prevailing for
substantially all of calendar year 1994. Except as disclosed in Schedule
5.25(c) hereto, there has been no material increase in the compensation of, or
benefits payable to, any senior executive employee of CBI or any CBI subsidiary
on or after January 1, 1995, nor has any employment, severance, or similar
contract been entered into with any such employee, nor has any amendment to any
such contract been made on or after January 1, 1995.
With respect to all Benefit Arrangements which are
subject to the annual return requirement of IRC Section 6039D, all annual
returns as were required to be filed have been timely filed. Copies of all
such annual returns for the three (3) plan
REORGANIZATION AGREEMENT - Page 53
<PAGE> 60
years immediately preceding the current date have been delivered to UPC.
(d) Listed on Schedule 5.25(d) hereto are all Employee
Pension Benefit Plans, Employee Welfare Benefit Plans, and Benefit Arrangements
which provide compensation or benefits which become effective upon a change in
control of CBI or any CBI Subsidiary, including, but not limited to, additional
compensation or benefits, or acceleration in the amount or timing of payment of
compensation or benefits which had become effective prior to the date of such
acceleration. Except as disclosed in Schedule 5.25(d) hereto, there is no
Employee Pension Benefit Plan, Employee Welfare Benefit Plan, or Benefit
Arrangement covering any employee of CBI or any CBI Subsidiary which
individually or collectively could give rise to the payment of any amount which
would constitute an "excess parachute payment," as such term is defined in
Section 280G of the IRC and Regulations proposed pursuant to that section.
(e) Except as described in Schedule 5.25(e) hereto, each
Employee Pension Benefit Plan, Employee Welfare Benefit Plan, or Benefit
Arrangement and each personal services contract, fringe benefit, consulting
contract or similar arrangement with or for the benefit of any officer,
director, employee, or other person may be terminated by CBI (or by INTERIM as
the Surviving Corporation) within a period of no more than thirty (30) days
following the effective time of the merger, without payment of any amount as a
penalty, bonus, premium, severance pay, or other compensation for such
termination. No limitation on the right to terminate any such plan has been
communicated by CBI or its Subsidiaries to employees, former employees, or
retirees who are or may be participants in or beneficiaries of such plans or
arrangements. Each Employee Pension Benefit Plan which is qualified under
Section 401(a) of the IRC as a qualified defined benefit pension plan contains
language which permits the reversion of excess assets to the employer
maintaining the plan or its successors or assigns upon a plan termination and
such provision has been included in the Employee Pension Benefit Plan for the
period required under ERISA Section 4044(d).
(f) Except as disclosed in Schedule 5.25(f) hereto,
neither CBI nor any CBI Subsidiary has received notice from any governmental
agency of any alleged violation of applicable laws or of any prospective audit
or other investigation for the purpose of reviewing compliance with applicable
laws with respect to any Employee Pension Benefit Plan, Employee Welfare
Benefit Plan or Benefit Arrangement.
Except as disclosed in Schedule 5.25(f) hereto, no
suits, actions, or claims have been filed in any court of law or with any
governmental agency regarding the operation of any
REORGANIZATION AGREEMENT - Page 54
<PAGE> 61
Employee Pension Benefit Plan, Employee Welfare Benefit Plan, or Benefit
Arrangement and no such additional suits, actions, or claims are, to the best
information, knowledge and belief of CBI, anticipated to be filed.
5.26 Material Contracts. Except as reflected in the
Audited Financial Statements of CBI or as described in Schedule 5.26 hereto,
neither CBI nor any CBI Subsidiary, nor any of their respective assets,
businesses, or operations, is as of the date of this Reorganization Agreement a
party to, or is bound or affected by, or receives benefits under any contract
or agreement or amendment thereto that in each case would (assuming that each
were a reporting company under the 1934 Act, whether or not it is so
registered) be required to be filed as an exhibit to an Annual Report on Form
10-K filed by CBI as of the date of this Reorganization Agreement that has not
already been filed as an exhibit to CBI's Form 10-K filed for the fiscal year
ended December 31, 1994, or in any other SEC Document filed prior to the date
of this Reorganization Agreement.
5.27 Material Contract Defaults. Neither CBI nor any CBI
Subsidiary is in default in any respect under any contract, agreement,
commitment, arrangement, lease, insurance policy, or other instrument to which
it is a party or by which its respective assets, business, or operations may be
bound or affected or under which it or its respective assets, business, or
operations receives benefits, which default may be reasonably expected to have
either individually or in the aggregate a material adverse effect on CBI or on
any CBI Subsidiary and there has not occurred any event which, with the lapse
of time or the giving of notice or both, would constitute such a default.
5.28 Reports. Since January 1, 1990, CBI and each CBI
Subsidiary have filed all reports and statements, together with any amendments
required to be made with respect thereto, that it was required to file with (i)
the Missouri Division; (ii) the Federal Reserve; (iii) the Comptroller; (iv)
the FDIC; (v) the OTS (if applicable as a result of the acquisition of Home
Federal); or (vi) the SEC, including, but not limited to, Annual Reports on SEC
Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and
proxy statements; (vii) reports on Forms 2900 and call reports (on FFIEC Forms
032, 033 and 034 and similar forms) and (viii) any other applicable federal or
state securities or banking authorities (except, in the case of federal or
state securities authorities, filings which are not material). As of their
respective dates, each of such reports and documents, including the financial
statements, tables, exhibits, and schedules thereto, complied in all material
respects with all of the requirements of the respective forms on which they
were filed and with all of the statutes, rules, and regulations enforced or
promulgated by the Regulatory Authority with which they were
REORGANIZATION AGREEMENT - Page 55
<PAGE> 62
filed. All such reports were true and complete in all material respects and
did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. CBI will provide to UPC true and correct copies of all such
reports filed by CBI or by any CBI Subsidiary subsequent to January 1, 1990.
5.29 Exchange Act Filings. The outstanding shares of CBI
Common Stock and the Depositary Shares of CBI Series C Preferred Stock are
registered with the SEC pursuant to Section 12 of the 1934 Act.
5.30 Statements True and Correct. None of the information
prepared by, or on behalf of CBI or by any CBI Subsidiary regarding CBI, any
CBI Subsidiary or any Subsidiary of a CBI Subsidiary included or to be included
in the Proxy Statement to be mailed to CBI's shareholders in connection with
the Shareholders Meeting and any other documents to be filed with the SEC, or
any other Regulatory Authority in connection with the transaction contemplated
herein, will, at the respective times such documents are filed, and, with
respect to the Proxy Statement, when first mailed to the shareholders of CBI,
be false or misleading with respect to any material fact, or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or, in the case of
the Proxy Statement or any amendment thereof or supplement thereto, at the time
of the Shareholders Meeting, be false or misleading with respect to any
material fact, or omit to state any material fact necessary to correct any
statement in any earlier communication with respect to the solicitation of any
proxy for the Shareholders Meeting. All documents which CBI or any CBI
Subsidiary is responsible for filing with the SEC or any other Regulatory
Authority in connection with the transactions contemplated hereby will comply
as to form in all material respects with the provisions of applicable law,
including applicable provisions of the Securities Laws and the rules and
regulations issued thereunder.
ARTICLE 6
COVENANTS OF UPC
6.1 Regulatory Approvals. Within a reasonable time after
completion of UPC's "due diligence review" described in Section 2.3 of this
Reorganization Agreement and its decision to proceed with the transaction as a
result thereof, UPC shall file any and all applications with the appropriate
government Regulatory Authorities in order to obtain the necessary prior
REORGANIZATION AGREEMENT - Page 56
<PAGE> 63
Government Approvals of the transactions contemplated in this Reorganization
Agreement and shall take such other actions as may be reasonably required to
consummate the transactions contemplated in this Reorganization Agreement and
the Plan of Merger with reasonable promptness. UPC shall pay all fees and
expenses arising in connection with such applications for regulatory approval.
UPC agrees to provide the appropriate Regulatory Authorities with the
information required by such authorities in connection with UPC's applications
for regulatory approval and UPC agrees to use its best efforts to obtain such
regulatory approvals and any other approvals and consents as may be required
for the Closing as promptly as practicable; provided, however, that nothing in
this Section 6.1 shall be construed to obligate UPC to take any action to meet
any condition required to obtain prior regulatory approval if UPC shall, in
UPC's sole discretion, deem such condition to be unreasonable or to constitute
a significant impediment upon UPC's ability to carry on its business or
acquisition programs or to require UPC to increase UPC's capital ratios to
amounts in excess of the Federal Reserve's minimum capital ratio guidelines
which may be in effect from time to time.
6.2 Registration of UPC Common Stock under the Securities
Laws. UPC shall cooperate with CBI in the preparation of the CBI Proxy
Statement to be used at the Shareholders Meeting (and which shall serve also as
UPC's prospectus with respect to UPC's issuance of shares of UPC Common Stock
as Consideration for the Merger) and shall cause a registration statement on
the appropriate SEC Form to be prepared and filed so as to cause any shares of
UPC Common Stock which may be delivered to the CBI Record Holders in payment of
the Consideration to be registered under the 1933 Act and to be duly qualified
under the appropriate state securities laws. UPC shall also list for trading
on the NYSE the UPC Common Stock to be delivered in payment of the
Consideration. Such registration, qualification and listing shall be effected
prior to the Closing.
6.3 Employee Benefits. Following the consummation of the
transactions contemplated herein, UPC shall not be obligated to make further
contributions to any of the Employee Plans or Benefit Arrangements of CBI or
the CBI Subsidiaries and all employees of CBI and the CBI Subsidiaries
immediately prior to the Effective Time of the Merger who shall continue as
employees of INTERIM as the Surviving Corporation or as employees of any other
UPC Subsidiary will be afforded the opportunity to participate in any employee
benefit plans maintained by UPC or UPC's Subsidiaries, including but not
limited to any "employee benefit plan," as that term is defined in ERISA, on an
equal basis with employees of UPC or any UPC Subsidiaries with comparable
positions, compensation, and tenure. Service with CBI or with any CBI
Subsidiary prior to the Effective Time of the
REORGANIZATION AGREEMENT - Page 57
<PAGE> 64
Merger by such former CBI Company employees will be deemed service with UPC for
purposes of determining eligibility for participation and vesting in such
employee benefit plans of UPC and UPC's Subsidiaries. In its sole discretion,
UPC may elect to postpone until the first day of July next following the
Effective Time of the Merger the participation of the employees of CBI and
CBI's Subsidiaries in the employee benefit plans maintained by UPC or UPC's
Subsidiaries; provided, however, during any such postponement period, the CBI
Employee Plans and all related employee benefit plans shall continue in full
force and effect, except as expressly modified or amended by the terms of this
Reorganization Agreement, or until such time as such plans shall have been
replaced by benefit plans maintained by UPC.
6.4 Conduct of Business -- Affirmative Covenants. Unless
the prior written consent of CBI shall have been obtained and, except as
otherwise contemplated herein:
(a) At all times prior to the Closing, UPC shall
promptly inform CBI in writing of any developments, occurrences, events or
facts necessary to add to, amend or supplement the representations and
warranties made herein (including those made in the Schedules of Exceptions
attached hereto) as may be necessary to the end that the information contained
herein and therein will accurately reflect the current status of UPC and of
each UPC Subsidiary; provided, however, that any such updates to Schedules
shall be required prior to the Closing only with respect to matters which
represent material changes to the Schedules and the information contained
therein; and, provided further, that before such amendment, supplement or
update shall be deemed to have become and to constitute a part of, or an
amendment to, this Reorganization Agreement, CBI shall have agreed in writing
to each such amendment, supplement or update to the Reorganization Agreement
and/or Schedules which initially shall have become a part of this
Reorganization Agreement;
(b) On and after the Closing Date, UPC and each UPC
Subsidiary shall give such further assistance to CBI and shall execute,
acknowledge and deliver all such documents and instruments as CBI may
reasonably request and take such further action as may be necessary or
appropriate effectively to consummate the transactions contemplated by this
Reorganization Agreement;
(c) Between the date of this Reorganization
Agreement and the Closing Date, UPC and each UPC Subsidiary shall afford CBI
and its authorized agents and representatives reasonable access during normal
business hours to the properties, operations, books, records, contracts,
documents, loan files and other information of, or relating to UPC and any UPC
Subsidiary. UPC and each UPC Subsidiary shall provide reasonable assistance
REORGANIZATION AGREEMENT - Page 58
<PAGE> 65
to CBI in its investigation of matters relating to UPC and any UPC Subsidiary;
and
(d) Subject to the terms and conditions of this
Reorganization Agreement, UPC agrees to use all reasonable efforts and to take,
or to cause to be taken, all actions, and to do, or to cause to be done, all
things necessary, proper, or advisable under applicable laws and regulations to
consummate and make effective, with reasonable promptness after the date of
this Reorganization Agreement, the transactions contemplated by this
Reorganization Agreement, including, without limitation, using reasonable
efforts to lift or rescind any injunction or restraining or other order
adversely affecting the ability of the Parties to consummate the transactions
contemplated by this Reorganization Agreement. UPC shall use, and shall cause
each of its Subsidiaries to use, its best efforts to obtain consents of all
third parties and Regulatory Authorities necessary or desirable for the
consummation of each of the transactions contemplated by this Reorganization
Agreement.
6.5 Indemnification. (a) From and after the Effective
Time of the Merger, UPC shall or UPC shall cause the Surviving Corporation to
indemnify, defend and hold harmless the present and former officers, directors,
employees and agents of CBI and its Subsidiaries (each an "Indemnified Party")
against all losses, expenses, claims, damages or liabilities arising out of
their status as such officer, director, employee or agent for actions or
omissions occurring on or prior to the Effective Time (including, without
limitation, the transactions contemplated by this Reorganization Agreement)
and, further, including without limitation, any proceeding in which an
Indemnified Party becomes or may become involved as a witness, defendant or
otherwise as a result of any such act or omission) to the fullest extent
permitted under Missouri law and by the Articles of Incorporation and bylaws of
CBI as in effect on the date hereof, including provisions relating to advances
of expenses incurred in the defense of any action or suit. Without limiting
the foregoing, in any case in which approval by UPC or the Surviving
Corporation shall be required to effectuate any indemnification, UPC shall or
UPC shall cause the Surviving Corporation to direct, at the election of the
Indemnified Party, that the determination of any such approval shall be made by
independent counsel selected by the Indemnified Party. UPC shall, and shall
cause the Surviving Corporation to, apply such rights of indemnification in
good faith and to the fullest extent permitted by applicable law.
(b) For three years after the Effective Time of the Merger, UPC
shall or shall cause the Surviving Corporation to provide the directors and
officers of CBI and its Subsidiaries with the same directors' and officers'
liability insurance coverage, if reasonably available, that UPC provides to
directors and officers
REORGANIZATION AGREEMENT - Page 59
<PAGE> 66
of its other banking subsidiaries generally, with respect to claims arising
from facts or events which occurred prior to or at the Effective Time.
(c) If after the Effective Time of the Merger,UPC or the Surviving
Corporation or any of its successors or assigns (i) shall consolidate with, or
merge into any other corporation or entity and shall not be the continuing or
surviving corporation or entity or such consolidation or merger or (ii) shall
transfer all or substantially all of its properties and assets to any
individual, corporation or other entity, then and in each such case, proper
provision shall be made such that the successors and assigns of UPC or the
Surviving Corporation shall assume any remaining obligations set forth in this
Section 6.5.
ARTICLE 7
COVENANTS OF CBI COMPANIES
7.1 Proxy Statement; CBI Shareholder Approval. CBI shall
call a special meeting of its shareholders (the "Shareholders Meeting") to be
held as soon as reasonably practicable after the date of this Reorganization
Agreement and shall use its best efforts to ensure that such meeting is held no
later than November 30, 1995, for the purpose of (i) approving this
Reorganization Agreement and the Plan of Merger, and (ii) such other related
matters as it deems appropriate. In connection with the Shareholders Meeting,
(i) CBI shall, with UPC's assistance, prepare a Proxy Statement to be filed
with the SEC as part of UPC's registration statement on the appropriate SEC
Form and with any other appropriate Regulatory Authority; shall mail or cause
to be mailed such Proxy Statement to the CBI Shareholders and shall provide UPC
the opportunity to review and comment on the Proxy Statement at least five (5)
business days prior to the filing of the Proxy Statement with the Regulatory
Authorities for prior review and at least five (5) business days prior to the
mailing of the Proxy Statement to the CBI Shareholders; (ii) the Parties shall
furnish to each other all information concerning them that the other Party may
reasonably request in connection with the preparation of such Proxy Statement;
(iii) the Board of Directors of CBI shall recommend (subject to compliance with
their legal and fiduciary duties as advised by counsel) to the CBI Shareholders
the approval of this Reorganization Agreement and the Plan of Merger; and (iv)
CBI shall use its best efforts, subject to compliance with its legal and
fiduciary duty as advised by counsel, to obtain such CBI Shareholders'
approvals.
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7.2 Conduct of Business -- Affirmative Covenants. Unless
the prior written consent of UPC shall have been obtained and, except as
otherwise contemplated herein:
(a) CBI and each CBI Subsidiary shall, and CBI shall
cause each CBI Subsidiary to:
(i) Operate its business only in the usual,
regular, and ordinary course;
(ii) Preserve intact its business
organization and assets and maintain in effect its rights and
franchises;
(iii) Take no action, unless otherwise
required by law, rules or regulation, that would (A) adversely affect
the ability of any of them or of UPC to obtain any necessary approvals
of Regulatory Authorities required to consummate the transactions
contemplated by this Reorganization Agreement or (B) adversely affect
the ability of such Party to perform its covenants and agreements
under this Reorganization Agreement;
(iv) Except as they may terminate in
accordance with their terms, keep in full force and effect, and not
default in any of their obligations under, all material contracts;
(v) Keep in full force and effect insurance
coverage with responsible insurance carriers which is reasonably
adequate in coverage and amount for companies the size of CBI or the
CBI Subsidiary and for the businesses and properties owned by each and
in which each is engaged, to the extent that such insurance is
reasonably available;
(vi) Use its best efforts to retain any CBI
Subsidiary's present customer base and to enhance the probability of
the retention of such customer base by each CBI Subsidiary and its
branches after the Effective Time of the Merger; and
(vii) Maintain, renew, keep in full force
and effect, and preserve its business organization and material rights
and franchises, permits and licenses, and to use its best efforts to
maintain positive relations with its present employees such that such
employees will continue to perform effectively and will be available
to CBI, any CBI Subsidiary or UPC and UPC's Subsidiaries at and after
the Effective Time of the Merger, and to use its best efforts to
maintain its existing, or substantially equivalent, credit
arrangements with banks and other financial institutions and
REORGANIZATION AGREEMENT - Page 61
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to assure the continuance of any CBI Subsidiary's customer
relationships;
(b) CBI and each CBI Subsidiary agree to use their
best respective efforts to assist UPC in obtaining the Government Approvals
necessary to complete the transactions contemplated hereby and are not aware of
any reason why such Government Approvals cannot be obtained; CBI and each CBI
Subsidiary shall provide to UPC or to the appropriate governmental authorities
all information required to be submitted in connection with obtaining such
approvals;
(c) CBI and each CBI Subsidiary, at their own cost
and expense, shall use their respective best efforts to secure all necessary
consents and all consents and releases, if any, which may be required of CBI or
of any CBI Subsidiary or from any third parties and shall comply with all
applicable laws, regulations and rulings in connection with this Reorganization
Agreement and the consummation of the transactions contemplated hereby;
(d) At all times prior to the Closing, CBI and each
CBI Subsidiary shall promptly inform UPC in writing of any developments,
occurrences, events or facts necessary to add to, amend or supplement the
representations and warranties made herein (including those made in the
Schedules of Exceptions attached hereto) as may be necessary to the end that
the information contained herein and therein will accurately reflect the
current status of CBI and of each CBI Subsidiary; provided, however, that any
such updates to Schedules shall be required prior to the Closing only with
respect to matters which represent material changes to the Schedules and the
information contained therein; and provided further, that before such
amendment, supplement or update shall be deemed to have become and to
constitute a part of, or an amendment to, this Reorganization Agreement, UPC
shall have agreed in writing to each such amendment, supplement or update to
the Reorganization Agreement and/or Schedules which initially shall have become
a part of this Reorganization Agreement;
(e) On and after the Closing Date, CBI and each CBI
Subsidiary shall give such further assistance to UPC and shall execute,
acknowledge and deliver all such documents and instruments as UPC may
reasonably request and take such further action as may be necessary or
appropriate effectively to consummate the transactions contemplated by this
Reorganization Agreement;
(f) Between the date of this Reorganization
Agreement and the Closing Date, CBI and each CBI Subsidiary shall afford UPC
and its authorized agents and representatives
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reasonable access during normal business hours to the properties, operations,
books, records, contracts, documents, loan files and other information of, or
relating to CBI and any CBI Subsidiary. CBI and each CBI Subsidiary shall
provide reasonable assistance to UPC in its investigation of matters relating
to CBI and any CBI Subsidiary; and
(g) Subject to the terms and conditions of this
Reorganization Agreement, CBI and each CBI Subsidiary agree to use all
reasonable efforts and to take, or to cause to be taken, all actions, and to
do, or to cause to be done, all things necessary, proper, or advisable under
applicable laws and regulations to consummate and make effective, with
reasonable promptness after the date of this Reorganization Agreement, the
transactions contemplated by this Reorganization Agreement, including, without
limitation, using reasonable efforts to lift or rescind any injunction or
restraining or other order adversely affecting the ability of the Parties to
consummate the transactions contemplated by this Reorganization Agreement. CBI
shall use, and shall cause each of its Subsidiaries to use, its best efforts to
assist UPC in obtaining the consents of all third parties and Regulatory
Authorities necessary or desirable for the consummation of each of the
transactions contemplated by this Reorganization Agreement.
7.3 Conduct of Business -- Negative Covenants. From the
date of this Reorganization Agreement until the earlier of the Effective Time
of the Merger or the termination of this Reorganization Agreement, CBI and each
CBI Subsidiary covenant and agree that they will neither do, nor agree or
commit to do, nor permit any CBI Subsidiary to do or commit or agree to do, any
of the following without the prior written consent of the chief executive
officer, president, or chief financial officer of UPC, which consent will not
be unreasonably withheld:
(a) Except as expressly contemplated by this
Reorganization Agreement or the Plan of Merger, amend its Charter or Bylaws; or
(b) With the exception of the collateralization of a
loan from Boatmen's Bank expected to be incurred incidental to the acquisition
of HOME FEDERAL SAVINGS AND LOAN ASSOCIATION, Jonesboro, Arkansas, impose, or
suffer the imposition, on any share of capital stock held by it or by any of
its Subsidiaries of any lien, charge, or encumbrance, or permit any such lien,
charge, or encumbrance to exist; or
(c) (i) Repurchase, redeem, or otherwise acquire or
exchange, directly or indirectly, any shares of its capital stock or other
equity securities or any securities or instruments convertible into any shares
of its capital stock, or any rights
REORGANIZATION AGREEMENT - Page 63
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or options to acquire any shares of its capital stock or other equity
securities except as expressly permitted by this Reorganization Agreement or
the Plan of Merger; or (ii) split or otherwise subdivide its capital stock; or
(iii) recapitalize in any way; or (iv) declare a stock dividend on the CBI
Common Stock; or (v) with the exception of its regular cash dividend of
Eighteen Cents ($.18) per share per quarter, increasing to Nineteen Cents
($.19) cents per share per quarter beginning in the third quarter of 1995, the
declaration dates of which shall be consistent with past practice, pay or
declare any cash dividends or make or declare any other type of distribution on
the CBI Common Stock except as expressly permitted in Section 8.2(i) of this
Reorganization Agreement or the Plan of Merger; or
(d) Except as expressly permitted by this
Reorganization Agreement, acquire direct or indirect control over any
corporation, association, firm, organization or other entity, other than in
connection with (i) mergers, acquisitions, or other transactions approved in
writing by UPC, (ii) internal reorganizations or consolidations involving
existing Subsidiaries, (iii) foreclosures in the ordinary course of business
and not knowingly exposing it to liability by reason of Hazardous Substances,
(iv) acquisitions of control in its fiduciary capacity, or (v) the creation of
new subsidiaries organized to conduct or continue activities otherwise
permitted by this Reorganization Agreement; or
(e) Except as expressly permitted by this
Reorganization Agreement or the Plan of Merger, to (i) issue, sell, agree to
sell, or otherwise dispose of or otherwise permit to become outstanding any
additional shares of CBI Common Stock, or any other capital stock of CBI or of
any CBI Subsidiary, or any stock appreciation rights, or any option, warrant,
conversion, call, scrip, or other right to acquire any such stock, or any
security convertible into any such stock, unless any such shares of such stock
should be directly sold or otherwise directly transferred to CBI or any CBI
Subsidiary, or (ii) sell, agree to sell, or otherwise dispose of any
substantial part of the assets or earning power of CBI or of any CBI
Subsidiary; or (iii) sell, agree to sell, or otherwise dispose of any asset of
CBI or any CBI Subsidiary other than in the ordinary course of business for
reasonable and adequate consideration; or (iv) buy, agree to buy or otherwise
acquire a substantial part of the assets or earning power of any other Person
or entity; or
(f) Incur, or permit any CBI Subsidiary to incur,
any additional debt obligation or other obligation for borrowed money other
than (i) in replacement of existing short-term debt with other short-term debt
of an equal or lesser amount, (ii) financing of banking related activities
consistent with past practices, or (iii) indebtedness of CBI or any CBI
Subsidiary to
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any CBI Subsidiary in excess of an aggregate of $100,000 (for CBI and its
Subsidiaries on a consolidated basis) except for a loan to CBI by a CBI
Subsidiary with respect to the headquarters building of CBI and except in the
ordinary course of the business of CBI or such CBI Subsidiary consistent with
past practices (and such ordinary course of business shall include, but shall
not be limited to, creation of deposit liabilities, entry into repurchase
agreements or reverse repurchase agreements, purchases or sales of federal
funds, Federal Reserve advances, and sales of certificates of deposit); or
(g) Grant any increase in compensation or benefits
to any of its employees or officers, except in accordance with past practices
or as required by law; pay any bonus except in accordance with past practices;
enter into any severance agreements with any of its officers or employees;
grant any material increase in fees or other increases in compensation or other
benefits to any director of CBI or of any CBI Subsidiary; or effect any change
in retirement benefits for any class of its employees or officers, unless such
change shall be required by applicable law; or
(h) Amend any existing employment contract between
it and any person having a salary thereunder in excess of $30,000 per year
(unless such amendment shall be required by law) to increase the compensation
or benefits payable thereunder; or to enter into any new employment contract
with any person having an annual salary thereunder in excess of $30,000 which
CBI or the applicable CBI Subsidiary (or their respective successors) shall not
have the unconditional right to terminate without liability (other than
liability for services already rendered) at any time on or after the Effective
Time of the Merger; or
(i) Adopt any new employee benefit plan or terminate
or make any material change in or to any existing employee benefit plan other
than any change that shall be required by law or that, in the opinion of
counsel, shall be necessary or advisable to maintain the tax-qualified status
of any such plan; or
(j) Enter into any new service contract, purchase or
sale agreement or lease agreement which is material to CBI or to any CBI
Subsidiary; or
(k) Make any material capital expenditure except for
ordinary purchases, repairs, renewals or replacements; or
(l) Enter into any material transaction other than
in the ordinary course of business; or
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(m) Grant or commit to grant any new extension of
credit to any officer, director or holder of 2% or more of the outstanding CBI
Common Stock, or to any officer or director of a CBI Subsidiary, or to any
corporation, partnership, trust or other entity controlled by any such person,
if such extension of credit, together with all other credits then outstanding
to the same borrower and all affiliated persons of such borrower, would exceed
$1,000,000, or amend in any material respect the terms of any such credit
outstanding on the date hereof.
7.4 Certain Actions. (a) Except to the extent
necessary to consummate the transactions specifically contemplated by this
Reorganization Agreement, CBI and the CBI Financial Subsidiaries shall not, and
shall use their respective best efforts to ensure that their respective
directors, officers, employees, and advisors do not, directly or indirectly,
institute, solicit or knowingly encourage (including by way of furnishing any
information not legally required to be furnished) any inquiry, discussion, or
proposal, or participate in any discussions or negotiations with, or provide
any confidential or non-public information to, any corporation, partnership,
person or other entity or group (other than to UPC or any UPC Subsidiary)
concerning any "Acquisition Proposal" (as defined below), except for actions
reasonably considered by the Board of Directors of CBI, based upon the advice
of outside counsel, to be required in order to fulfill its fiduciary
obligations. CBI shall notify UPC immediately if any Acquisition Proposal
shall have been, or should hereafter be received by CBI or by any of the CBI
Financial Subsidiaries, such notice to contain, at a minimum, the identity of
such persons, and, subject to disclosure being consistent with the fiduciary
obligations of CBI's (or, if applicable, any CBI Financial Subsidiary's) Board
of Directors, a copy of any written inquiry, the terms of any proposal or
inquiry, any information requested or discussions sought to be initiated, and
the status of any requests, negotiations or expressions of interest. For
purposes of this Section, "Acquisition Proposal" means any tender offer,
agreement, understanding or other proposal of any nature pursuant to which any
corporation, partnership, person or other entity or group, other than UPC or
any UPC Subsidiary, would directly or indirectly (i) acquire or participate in
a merger, share exchange, consolidation or any other business combination
involving CBI or any of the CBI Financial Subsidiaries; (ii) acquire the right
to vote ten percent (10%) or more of the CBI Common Stock or any CBI Financial
Subsidiary's Common Stock; (iii) acquire a significant portion of the assets or
earning power of CBI or of any CBI Financial Subsidiary; or (iv) acquire in
excess of ten percent (10%) of the outstanding CBI Common Stock or any CBI
Financial Subsidiary's Common Stock.
REORGANIZATION AGREEMENT - Page 66
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(b) As a condition of, and as an inducement to UPC's entering into
this Reorganization Agreement, CBI and each of the CBI Financial Subsidiaries
covenant, acknowledge, and agree that it shall be a specific, absolute, and
unconditionally binding condition precedent to either CBI's or any of the CBI
Financial Subsidiaries' entering into a letter of intent, agreement in
principle, or definitive agreement (whether or not considered binding,
non-binding, conditional or unconditional) with any third-party with respect to
an Acquisition Proposal, or supporting or indicating an intent to support an
Acquisition Proposal other than this Reorganization Agreement and the
transactions contemplated in this Reorganization Agreement, regardless of
whether CBI or the CBI Financial Subsidiaries have otherwise complied with the
provisions of Section 7.4(a) hereof, that CBI or such third-party which is a
party to the Acquisition Proposal shall have paid to UPC the sum of Six Million
Dollars ($6,000,000), which sum represents the (i) direct costs and expenses
(including, but not limited to, fees and expenses incurred by UPC's financial
or other consultants, printing costs, investment bankers, accountants, and
counsel) incurred by or on behalf of UPC in negotiating and undertaking to
carry out the transactions contemplated by this Reorganization Agreement and
(ii) indirect costs and expenses of UPC in connection with the transactions
contemplated by this Reorganization Agreement, including UPC's management time
devoted to negotiation and preparation for the transactions contemplated by
this Reorganization Agreement and (iii) UPC's loss as a result of the
transactions contemplated by this Reorganization Agreement not being
consummated. Accordingly, CBI and the CBI Financial Subsidiaries hereby
jointly and severally stipulate and covenant that prior to CBI's or any one or
more of the CBI Financial Subsidiaries' entering into a letter of intent,
agreement in principle, or definitive agreement, (whether binding or
non-binding, conditional or unconditional) with any third-party with respect to
an Acquisition Proposal or supporting or indicating an intent to support an
Acquisition Proposal, either CBI or such third- party shall have paid to UPC
the amount set forth above in immediately available funds to satisfy the
specific, absolute, and unconditionally binding condition precedent imposed by
this Section 7.4. UPC and INTERIM each acknowledges that under no
circumstances shall any officer or director of CBI or the CBI Financial
Subsidiaries (unless such officer or director shall have an interest in a
potential acquiring party in an Acquisition Proposal) be held liable to any of
them for any amount of the foregoing payment. On payment of such amount to
UPC, neither UPC nor INTERIM shall have any cause of action or claim (either in
law or equity) whatsoever against CBI or any of the CBI Financial
Subsidiaries, or against any officer or director of CBI or the CBI Financial
Subsidiaries, or the third party, with respect to or in connection with such
Acquisition Proposal, this Reorganization Agreement or the Plan of Merger.
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The requirements, conditions, and obligations imposed by this Section
7.4 shall continue in effect from the date of this Reorganization Agreement
until April 30, 1996, unless or until the earlier of any of the following
events shall occur, in which event, thereafter neither CBI, the CBI Financial
Subsidiaries nor any third party that is involved in an Acquisition Proposal
shall be obligated to pay the amount required by this Section 7.4 as a
condition precedent to such transaction:
(1) This Reorganization Agreement shall have been terminated (i)
by mutual consent of the Parties pursuant to Section 9.1(a) of
this Reorganization Agreement; (ii) by UPC, INTERIM or CBI
pursuant to Section 9.1(c) of this Reorganization Agreement;
(iii) by CBI pursuant to Section 9.1(d) of this Reorganization
Agreement; (iv) by CBI pursuant to Section 9.1(g) of this
Reorganization Agreement; (v) by UPC or CBI pursuant to
Section 9.1(j) of this Reorganization Agreement; (vi) by CBI
pursuant to Section 9.1(k) or (vii) by UPC or CBI pursuant to
Section 9.1(e) of this Reorganization Agreement, and in the
case of termination pursuant to Section 9.1(e), only on the
basis of the failure to satisfy the conditions enumerated in
subparagraph (2) below; or
(2) In the event the Merger should not be consummated as a result
of the failure to satisfy any of the following conditions:
(i) Noncompliance by UPC or INTERIM with their
respective obligations as required by the provisions
of Section 8.1(a) of this Reorganization Agreement;
(ii) Material inaccuracy (without waiver thereof)
of representations and warranties of UPC as
contemplated by the provisions of Section 8.1(b) of
this Reorganization Agreement;
(iii) The failure by UPC or INTERIM to effect all
corporate action necessary on their respective parts
as required by the provisions of Section 8.1(c)(i) of
this Reorganization Agreement;
(iv) The occurrence of material legal proceedings
as contemplated by the provisions of Section 8.3(a)
of this Reorganization Agreement;
(v) The failure to receive the requisite
approvals as required by the provisions of Section
8.3(b) of this Reorganization Agreement other than
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any such failure arising out of any action or
inaction on the part of CBI or of any CBI Financial
Subsidiary;
(vi) The failure on the part of counsel to UPC to
deliver the requisite opinion required by the
provisions of Section 8.1(e) of this Reorganization
Agreement; or
(vii) UPC shall have determined not to consummate
the Merger pursuant to Sections 8.2(d), 8.2(f),
8.2(i), or 8.2(k).
(viii) The failure by UPC to deliver to CBI and the
CBI Financial Subsidiaries the certificates
contemplated by Section 8.3 of this Reorganization
Agreement.
ARTICLE 8
CONDITIONS TO CLOSING
8.1 Conditions to the Obligations of CBI. Unless waived
in writing by CBI, the obligation of CBI to consummate the transactions
contemplated by this Reorganization Agreement is subject to the satisfaction at
or prior to the Closing Date of the following conditions:
(a) Performance. Each of the material acts and
undertakings of UPC and INTERIM to be performed at or prior to the Closing Date
pursuant to this Reorganization Agreement shall have been duly performed;
(b) Representations and Warranties. The
representations and warranties of UPC and INTERIM contained in Article 4 of
this Reorganization Agreement shall be true and complete, in all material
respects, on and as of the Effective Time of the Merger with the same effect as
though made on and as of the Effective Time of the Merger;
(c) Documents. In addition to the other
deliveries of UPC or INTERIM described elsewhere in this Reorganization
Agreement, CBI shall have received the following documents and instruments:
(i) a certificate signed by the
Secretary or an Assistant Secretary of UPC and INTERIM dated as of the
Closing Date certifying that:
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(A) UPC's and INTERIM's respective
Boards of Directors have duly adopted resolutions (copies of
which shall be attached to such certificate) approving the
substantive terms of this Reorganization Agreement (including
the Plan of Merger) and authorizing the consummation of the
transactions contemplated by this Reorganization Agreement and
certifying that such resolutions have not been amended or
modified and remain in full force and effect;
(B) each person executing this
Reorganization Agreement on behalf of UPC or INTERIM is an
officer of UPC or INTERIM, as the case may be, holding the
office or offices specified therein, with full power and
authority to execute this Reorganization Agreement and any and
all other documents in connection with the Merger, and that
the signature of each person set forth on such certificate is
his or her genuine signature;
(C) the charter documents of UPC
and INTERIM attached to such certificate remain in full force
and effect; and
(D) UPC and INTERIM are in good
standing under their respective corporate charters; and
(ii) a certificate signed respectively by
duly authorized officers of UPC and INTERIM stating that the
conditions set forth in Section 8.1(a) and Section 8.1(b) of this
Reorganization Agreement have been fulfilled;
(d) Consideration. CBI shall have received a
certificate executed by an authorized officer of the Exchange Agent to the
effect that the Exchange Agent has received and holds in its possession proper
authorization to issue certificates representing and evidencing shares of UPC
Common Stock and cash or other good funds sufficient to meet the obligation of
UPC to deliver to the CBI Record Holders the Consideration under this
Reorganization Agreement and the Plan of Merger; and
(e) Opinion of UPC's and INTERIM's Counsel. CBI
shall have been furnished with an opinion of counsel to UPC and INTERIM, dated
as of the Closing Date, addressed to and in form and substance satisfactory to
CBI, to the effect that:
(i) UPC is a Tennessee corporation duly
organized, validly existing, and in good standing under the laws of
the State of Tennessee and INTERIM is a Tennessee
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corporation duly organized, validly existing, and in good standing
under the laws of the State of Tennessee;
(ii) this Reorganization Agreement has
been duly and validly authorized, executed and delivered by UPC, and
INTERIM and (assuming this Reorganization Agreement is a binding
obligation of CBI) constitutes a valid and binding obligation of UPC
and INTERIM enforceable in accordance with its terms, subject as to
enforceability to applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors'
rights generally and subject to the application of equitable
principles and judicial discretion;
(iii) neither the execution and delivery by
UPC or INTERIM of this Reorganization Agreement nor any of the
documents to be executed and delivered by UPC or INTERIM in connection
herewith violates or conflicts with UPC's, or INTERIM's corporate
charters or bylaws or, to the best of the knowledge, information and
belief (without making special inquiry) of such counsel, any material
contracts, agreements or other commitments of UPC or INTERIM; and
(iv) to the knowledge of such counsel
after due inquiry, no consent or approval by any Governmental
Authority which has not already been obtained is required for
execution and delivery by UPC and INTERIM of this Reorganization
Agreement or any of the documents to be executed and delivered by UPC
or INTERIM in connection herewith.
Such opinion may (i) expressly rely as to matters of fact upon certificates
furnished by appropriate officers of UPC or INTERIM or appropriate government
officials; (ii) in the case of matters of law governed by the laws of the
states in which they are not licensed, reasonably rely upon the opinions of
legal counsel duly licensed in such other states and may be limited, in any
event, to Federal Law and the law of the State of Tennessee; and (iii)
incorporate, be guided by, and be interpreted in accordance with, the Legal
Opinion Accord of the ABA Section of Business Law (1991).
(f) Destruction of Property. Between the date of
this Reorganization Agreement and the Closing Date, there shall have been no
damage to, or destruction of, any real property, improvements or personal
property of UPC or of any UPC Subsidiary which materially reduces the market
value of such property, and no zoning or other order, limitation or restriction
imposed against the same that might have a material adverse impact upon the
operations, business or prospects of UPC or any UPC Subsidiary; provided,
however, that the availability of insurance
REORGANIZATION AGREEMENT - Page 71
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coverage shall be taken into account in determining whether there shall have
been such a material adverse impact or material reduction in market value. In
the event of such damage, destruction, order, limitation or restriction, UPC
and INTERIM may elect either (i) to close the contemplated transactions in
accordance with the terms of this Reorganization Agreement or (ii) to terminate
this Reorganization Agreement without penalty;
(g) Inspections Permitted. Between the date of
this Reorganization Agreement and the Closing Date, UPC and each UPC Subsidiary
shall have afforded CBI and its authorized agents and representatives
reasonable access during normal business hours to the properties, operations,
books, records, contracts, documents, loan files and other information of or
relating to UPC and each UPC Subsidiary. UPC and each UPC Subsidiary shall
have caused all UPC or any such UPC Subsidiary personnel to provide reasonable
assistance to CBI in its investigation of matters relating to UPC and any UPC
Subsidiary;
(h) No Material Adverse Change. No material
adverse change in the business, property, assets (including loan portfolios),
liabilities (whether absolute, contingent or otherwise), prospects, operations,
liquidity, income, or condition (financial or otherwise) of UPC or of any UPC
Subsidiary shall have occurred since the date of this Reorganization Agreement.
In the event of such a material adverse change with respect to UPC or any UPC
Subsidiary, UPC may elect either (i) to close the contemplated transactions in
accordance with the terms of this Reorganization Agreement or (ii) to terminate
this Reorganization Agreement without penalty;
(i) Fairness Opinion. CBI shall have received a
"fairness opinion" from its independent financial adviser to the effect that,
in the opinion of such adviser, the Consideration to be received by the CBI
Record Holders incidental to the Merger is fair to them from a financial point
of view and such fairness opinion shall not have been withdrawn prior to the
Closing Date; and
(j) Tax Opinion. CBI shall have received a
written opinion from its legal counsel, Messrs. Peper, Martin, Jensen, Maichel
and Hetlage to the effect that, in the opinion of such legal counsel, the
transactions contemplated by this Reorganization Agreement and the Plan of
Merger will constitute one or more tax-free reorganizations under IRC Section
368 and that the CBI Record Holders will not recognize any gain or loss to the
extent that such CBI Record Holders shall exchange shares of CBI Common Stock
for shares of UPC Common Stock (other than any fractional share of UPC Common
Stock which shall remain after aggregating all shares of UPC Common Stock to
which each CBI Record shall be entitled to receive in the Merger) contemplated
REORGANIZATION AGREEMENT - Page 72
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by this Reorganization Agreement assuming that the shares of CBI Common Stock
so exchanged by such CBI Record Holders shall be held by them as capital assets
at the Effective Time of the Merger; (b) that the basis of the UPC Common Stock
received will be the same as the basis of the CBI Common Stock exchanged
therefor; and (c) that the holding period of the UPC Common Stock received will
include the holding period of the CBI Common Stock surrendered in the exchange.
8.2 Conditions to Obligations of UPC and INTERIM. Unless
waived in writing by UPC, the obligation of UPC and INTERIM to consummate the
transactions contemplated by this Reorganization Agreement is subject to the
satisfaction at or prior to the Closing Date of the following conditions:
(a) Performance. Each of the material acts and
undertakings of CBI and of each CBI Subsidiary to be performed at or before the
Closing Date pursuant to this Reorganization Agreement shall have been duly
performed;
(b) Representations and Warranties. The
representations and warranties of CBI and of each CBI Subsidiary contained in
Article 5 of this Reorganization Agreement shall be true and correct, in all
material respects, on and as of the Closing Date with the same effect as though
made on and as of the Closing Date;
(c) Documents. In addition to the documents
described elsewhere in this Reorganization Agreement, UPC shall have received
the following documents and instruments:
(i) a certificate signed by the
Secretary or Cashier or by an Assistant Secretary or Assistant Cashier
of CBI and each CBI Subsidiary dated as of the Closing Date certifying
that:
(A) CBI's Board of Directors and
shareholders have duly adopted resolutions (copies of which
shall be attached to such certificate) approving the
substantive terms of this Reorganization Agreement (including
the Plan of Merger) and authorizing the consummation of the
transactions contemplated by this Reorganization Agreement and
certifying that such resolutions have not been amended or
modified and remain in full force and effect;
(B) each person executing this
Reorganization Agreement on behalf of CBI is an officer of CBI
holding the office or offices specified therein, with full
power and authority to execute and deliver this Reorganization
Agreement and any and all other
REORGANIZATION AGREEMENT - Page 73
<PAGE> 80
documents in connection with the Merger, and that the
signature of each person set forth on such certificate is his
or her genuine signature;
(C) the charter documents of CBI
and of each CBI Subsidiary attached to such certificate remain
in full force and effect; and
(D) CBI and all CBI Subsidiaries
are in good standing under their respective corporate
charters; and
(ii) a certificate signed by the
respective President, Chief Executive Officer or an Executive Vice
President of each of CBI and each CBI Subsidiary stating that the
conditions set forth in Section 8.2(a), Section 8.2(b) and 8.2(f) of
this Reorganization Agreement, as to each of them, have been
satisfied;
(d) Destruction of Property. Between the date of
this Reorganization Agreement and the Closing Date, there shall have been no
damage to or destruction of any real property, improvements or personal
property of CBI or of any CBI Subsidiary which materially reduces the market
value of such property, and no zoning or other order, limitation or restriction
imposed against the same that might have a material adverse impact upon the
operations, business or prospects of CBI or any CBI Subsidiary; provided,
however, that the availability of insurance coverage shall be taken into
account in determining whether there shall have been such a material adverse
impact or material reduction in market value. In the event of such damage,
destruction, order, limitation or restriction, UPC and INTERIM may elect either
(i) to close the contemplated transactions in accordance with the terms of this
Reorganization Agreement or (ii) to terminate this Reorganization Agreement
without penalty;
(e) Inspections Permitted. Between the date of
this Reorganization Agreement and the Closing Date, CBI and each CBI Subsidiary
shall have afforded UPC and its authorized agents and representatives
reasonable access during normal business hours to the properties, operations,
books, records, contracts, documents, loan files and other information of or
relating to CBI and each CBI Subsidiary. CBI and each CBI Subsidiary shall
have caused all CBI or any such CBI Subsidiary personnel to provide reasonable
assistance to UPC in its investigation of matters relating to CBI and any CBI
Subsidiary;
(f) No Material Adverse Change. No material
adverse change in the business, property, assets (including loan portfolios),
liabilities (whether absolute, contingent or otherwise), prospects, operations,
liquidity, income, or
REORGANIZATION AGREEMENT - Page 74
<PAGE> 81
condition (financial or otherwise) of CBI or of any CBI Subsidiary shall have
occurred since the date of this Reorganization Agreement. In the event of such
a material adverse change with respect to CBI or any CBI Subsidiary, UPC may
elect either (i) to close the contemplated transactions in accordance with the
terms of this Reorganization Agreement or (ii) to terminate this Reorganization
Agreement without penalty;
(g) Opinion of CBI's Counsel. UPC shall have
been furnished with an opinion of legal counsel to CBI and the CBI
Subsidiaries, dated the Closing Date, addressed to UPC and in form and
substance satisfactory to UPC, to the effect that:
(i) CBI is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Missouri;
(ii) each CBI Subsidiary is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation;
(iii) this Reorganization Agreement has
been duly and validly authorized, executed and delivered by CBI and by
each CBI Financial Subsidiary and (assuming that this Reorganization
Agreement is a binding obligation of UPC and INTERIM and the Plan of
Merger is a binding obligation of UPC and INTERIM) constitutes a valid
and binding obligation of CBI, enforceable in accordance with its
terms, subject as to enforceability to applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and to the application of
equitable principles and judicial discretion; and
(iv) to the knowledge of such counsel
after due inquiry, no consent or approval, which has not already been
obtained, by any governmental authority is required for execution and
delivery by CBI or any CBI Subsidiary of this Reorganization Agreement
or any of the documents to be executed and delivered by CBI and any
CBI Subsidiary in connection herewith and the consummation of the
Merger and ancillary transactions described in the Reorganization
Agreement.
Such opinion may (i) expressly rely as to matters of fact upon certificates
furnished by appropriate officers of CBI or of any CBI Subsidiary or
appropriate government officials; (ii) in the case of matters of law governed
by the laws of the states in which they are not licensed, reasonably rely upon
the opinions of legal counsel duly licensed in such states and may be limited,
in any event, to Federal Law and to the law of the State of
REORGANIZATION AGREEMENT - Page 75
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Missouri; and (iii) incorporate, be guided by and be interpreted in accordance
with, the Legal Opinion Accord of the ABA Section of Business Law (1991);
(h) Other Business Combinations, Etc. Except as
otherwise provided in this Reorganization Agreement, neither CBI nor any CBI
Subsidiary shall have entered into any agreement, letter of intent,
understanding or other arrangement pursuant to which CBI or any CBI Subsidiary
would merge; consolidate with; effect a business combination with; sell any
substantial part of CBI's or any CBI Subsidiary's assets; acquire a significant
part of the shares or assets of any other Person or entity (financial or
otherwise); adopt any "poison pill" or other type of anti-takeover
arrangement, any shareholder rights provision, any "golden parachute" or
similar program which would have the effect of materially decreasing the value
of CBI or of any CBI Subsidiary or the benefits of acquiring the CBI Common
Stock;
(i) Maintenance of Certain Covenants, Etc. At
the time of Closing, (i) the total consolidated assets of CBI and Subsidiaries
shall be not less than $970,000,000; (ii) the total consolidated stockholders'
equity of CBI shall have been not less than $74,440,000 at December 31, 1994,
and shall have increased since that date through earnings growth less any
dividends which shall have been declared as permitted hereunder; (iii) the
tangible equity capital of CBI shall be not less than its reported level as of
December 31, 1994, and shall have increased since that time through earnings
growth less any dividends which shall have been declared as permitted
hereunder; (iv) neither CBI nor any CBI Subsidiary shall have issued or
repurchased from the date hereof any additional equity or debt securities, or
any rights to purchase or repurchase such securities, except as set forth in
this Reorganization Agreement (such that there shall be not more than 3,067,268
shares of CBI Common Stock validly issued and outstanding at the Effective Time
of the Merger other than those additional shares which shall have been issued
by CBI subsequent to December 31, 1994, incidental to the exercise of stock
options, warrants and similar rights to acquire CBI Common Stock which were
issued and outstanding on that date and which have been disclosed to UPC in
this Reorganization Agreement and other than shares of CBI Common Stock which
shall have been issued incidental to conversion of the CBI Convertible Notes);
(v) from December 31, 1994, there shall have been no extraordinary sale of
assets, nor any material investment portfolio restructuring by either CBI or
any CBI Subsidiary; (vi) neither CBI nor any CBI Subsidiary shall have issued
or granted since December 31, 1994, through the Closing Date any CBI Stock
Options; (vii) from the date hereof, except as permitted in Section 7.3(c)(v)
of this Reorganization Agreement, CBI shall not have declared or paid any cash
dividends or other distributions prior to Closing; and (viii) the Merger shall
qualify as one or
REORGANIZATION AGREEMENT - Page 76
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more tax-free reorganizations under Section 368 of the IRC of 1986, as amended.
The financial criteria and calculations set forth above shall be determined in
accordance with GAAP assuming that CBI and each CBI Subsidiary shall have been
operated consistently in the normal course of their respective businesses;
provided, however, that the effects of any balance sheet expansion through
abnormal, unusual, nonrecurring or out-of-the-ordinary borrowings or by the
realization of extraordinary or nonrecurring gains otherwise than in the
ordinary course of business or other income from the disposition of assets or
liabilities or through similar transactions shall be eliminated from the
calculations;
(j) Non-Compete Agreements. Each member of the Board of
Directors of CBI, other than Van H. Puls and P. Anthony Novelly, should he
become a director, shall have entered into a non-compete agreement with UPC,
CBI and each CBI Financial Subsidiary substantially in the form of UPC's
standard form of non-compete agreement, a copy which is annexed hereto as
Exhibit 8.2(j), providing for a term of two (2) years from Closing and covering
those Counties in the State of Missouri (and, if applicable, Arkansas) in which
CBI and the CBI Financial Subsidiaries shall maintain their banking offices,
including branches, on the Closing Date as well as those Counties which are
contiguous to those counties in which they operate banking offices or branches;
and such Board Member shall not be involved in any way with the formation or
organization of a new financial institution which would maintain banking
offices in any of such counties;
(k) Tax Opinion. UPC shall have received a written
opinion from counsel to the effect that the transactions contemplated by this
Reorganization Agreement and the Plan of Merger will constitute one or more
tax-free reorganizations under Section 368 of the IRC and that neither UPC,
INTERIM nor CBI will recognize any gain or loss for federal income tax purposes
as a result of the consummation of the transactions contemplated by the
Reorganization Agreement;
(l) Receipt of Affiliate Letters. UPC shall have
received a written commitment in form and substance satisfactory to UPC and its
counsel (an "Affiliate Letter") from each CBI Record Holder who would be deemed
under the Securities Laws to be an Affiliate of CBI at the time of Closing and
who shall accept shares of UPC Common Stock as Consideration for the
cancellation, exchange and conversion of his or her shares of CBI Common Stock
pursuant to the terms and conditions of this Reorganization Agreement,
committing to UPC that such CBI Record Holder shall not pledge, assign, sell,
transfer, otherwise alienate or take any action which would eliminate or
diminish the risk of owning or holding the shares of UPC Common Stock to be
received by such
REORGANIZATION AGREEMENT - Page 77
<PAGE> 84
CBI Record Holder upon consummation of the Merger nor enter into any formal or
informal agreement to pledge, assign, sell, transfer, or otherwise alienate
his right, title and interests in any of the shares of UPC Common Stock to be
delivered by UPC to such CBI Record Holder pursuant to the terms and conditions
of this Reorganization Agreement if such disposition of, commitment to dispose
of, or reduction of the risk of ownership of the shares of UPC Common Stock to
be received in the Merger (collectively, a "Disposition"):
(i) would require the Merger and other transactions
contemplated by the Reorganization Agreement to be accounted for under
the "purchase" method of accounting rather than under the "pooling-of-
interests" method of accounting; or
(ii) would constitute a sale or other disposition of
such shares of UPC Common Stock in violation of the Securities Laws;
or
(iii) would adversely affect the ability of the
Parties to treat the Merger and other transactions contemplated in the
Reorganization Agreement as one or more tax-free "reorganizations" in
the sense of Section 368 of the IRC such that the tax-free status of
the transactions might be jeopardized for federal income tax purposes.
Accordingly, no Affiliate shall effect a Disposition prior to the date on which
UPC shall have released to the public the financial results of the combined
operations of UPC and CBI for a period of not less than 30 days duration in
order to satisfy the requirements of clause (i). In addition, no Affiliate
shall effect a Disposition otherwise than by compliance with SEC Rules 144 or
145 or in a transaction which, in the opinion of counsel satisfactory to UPC,
shall be exempt from the registration requirements of the 1933 Act in order to
satisfy the requirements of clause (ii) above. Moreover, each Affiliate shall
represent and warrant to UPC that as of the Closing Date such Affiliate has no
present intention of disposing of any amount in excess of 45% of the shares of
UPC Common Stock to be received by such Affiliate as Consideration for the CBI
Common Stock surrendered in the transaction and shall undertake to make no
disposition of any of the remaining 55% of the UPC Common Stock received by
such Affiliate for a period of not less than 24 months (or, with the approval
of UPC, such shorter period as may be justified by material events, occurrences
or changes in circumstances which were not reasonably foreseeable or foreseen
on the Closing Date)in order to protect the ability of the Parties to treat the
Merger and other transactions contemplated in the Reorganization Agreement as
one or more tax-free "reorganizations" in the sense of Section 368 of the IRC;
and
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<PAGE> 85
(m) Fairness Opinion. UPC shall have received a
"fairness opinion" from its independent financial adviser to the effect that,
in the opinion of such adviser, the Consideration to be received by the CBI
Record Holders in exchange for their shares of CBI Common Stock pursuant to the
terms and conditions of this Reorganization agreement is fair to the
shareholders of UPC from a financial point of view; such fairness opinion shall
not have been withdrawn prior to the Closing Date; and UPC shall have received
an updated "fairness opinion" letter from such advisers dated within five days
of the Closing Date confirming that, in the opinion of such adviser, such
Consideration to be received by the CBI Record Holders continues to be fair to
the UPC Shareholders from a financial point of view.
(n) Pooling of Interests Accounting Treatment. UPC shall
have received (i) from Price Waterhouse or other independent accountants
satisfactory to UPC, a letter dated within five days prior to the Closing Date,
in form and substance acceptable to UPC, stating the accountants' opinion that,
based upon the information furnished to them, the Reorganization and Merger
should be accounted for by UPC as a "pooling of interests" for financial
statement purposes and that such accounting treatment is in accordance with
generally accepted accounting principles and (ii) from CBI's regularly retained
independent accountants or other accountants acceptable to UPC, a letter dated
within five days prior to the Closing Date stating that, upon a review of the
books and records of CBI, such accountants are aware of no reason why the
business combination described in this Reorganization Agreement to which CBI is
a Party should not be accounted for as a "pooling of interests" under generally
accepted accounting principles.
8.3 Conditions to Obligations of All Parties. The
obligation of each Party to effect the transactions contemplated hereby shall
be subject to the fulfillment, at or prior to the Closing, of the following
conditions:
(a) No Pending or Threatened Claims. That no
claim, action, suit, investigation or other proceeding shall be pending or
threatened before any court or governmental agency which presents a substantial
risk of the restraint or prohibition of the transactions contemplated by this
Reorganization Agreement or the obtaining of material damages or other relief
in connection therewith; and
(b) Government Approvals and Acquiescence
Obtained. The Parties hereto shall have received all applicable Government
Approvals for the consummation of the transactions contemplated herein and all
waiting periods incidental to such approvals or notices given shall have
expired; and
REORGANIZATION AGREEMENT - Page 79
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(c) Shareholder Approval. The shareholders of
CBI shall have approved the Merger in accordance with the Missouri Code; and
(d) Registration Statement. UPC's Registration
Statement to be filed with the SEC shall have been declared effective by the
SEC and shall not be subject to a stop order issued by the SEC and, should the
offer and sale of the UPC Common Stock incidental to the Merger described in
this Reorganization Agreement be subject to the Blue Sky Laws of any state,
shall not be subject to any stop order of any state securities commission.
ARTICLE 9
TERMINATION
9.1 Termination. This Reorganization Agreement and the
Plan of Merger may be terminated at any time prior to the Closing, as follows:
(a) By mutual consent in writing of the Parties;
(b) By UPC or INTERIM, should CBI or any CBI
Subsidiary fail to conduct its business pursuant to CBI's and such CBI
Subsidiary's Covenants made in Article 7;
(c) By UPC, INTERIM or CBI in the event the Closing
shall not have occurred by January 31, 1996 (the "Target Date"), unless the
failure of the Closing to occur shall be due to the failure of the Party
seeking to terminate this Agreement to perform its obligations hereunder in a
timely manner. If UPC shall have filed any and all applications to obtain the
requisite Government Approvals within sixty (60) days of the date hereof, and
if the Closing shall not have occurred solely because of a delay caused by a
government regulatory agency or authority in its review of the application
before it, then CBI and any CBI Subsidiary that is a party to this
Reorganization Agreement shall, upon UPC's written request, extend the Closing
Date until such time as all Government Approvals shall have been obtained and
any statutory waiting periods shall have expired; provided, however, the
Closing Date shall not be extended under the provisions of this Section 9.1(c)
beyond April 30, 1996;
(d) By either UPC, INTERIM or CBI, upon written
notice to the other Party, upon denial of any Governmental Approval necessary
for the consummation of the Merger (or should such approval be conditioned upon
a substantial deviation from the transactions contemplated); provided, however,
that either UPC or CBI may, upon written notice to the other, extend the term
REORGANIZATION AGREEMENT - Page 80
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of this Reorganization Agreement for only one 60-day period to prosecute
diligently and overturn such denial, provided, further, that such denial shall
have been appealed within twenty (20) business days of the receipt thereof;
(e) By UPC or INTERIM in the event the conditions
set forth in Sections 8.2 or 8.3 shall not have been satisfied in all material
respects as of the Closing Date, or by CBI if the conditions set forth in
Section 8.1 or 8.3 shall not have been satisfied in all material respects as of
the Closing Date, and such failure shall not have been waived prior to the
Closing;
(f) By UPC or INTERIM in the event that there
shall have been, in UPC's good faith opinion, a material adverse change in the
business, property, assets (including loan portfolios), liabilities (whether
absolute, accrued, contingent or otherwise), prospects, operations, liquidity,
income, condition (financial or otherwise) or net worth of CBI or any CBI
Subsidiary taken as a whole, or upon the occurrence of any event or
circumstance which may have the effect of limiting or restricting UPC's voting
power or other rights normally enjoyed by the registered holders of the CBI
Common Stock which are the subject of the instant transaction;
(g) By UPC, INTERIM or CBI in the event that
there shall have been a material breach of any obligation of the other Party
hereunder and such breach shall not have been remedied within thirty (30) days
after receipt by the breaching Party of written notice from the other Party
specifying the nature of such breach and requesting that it be remedied;
(h) By UPC or INTERIM should CBI or any CBI
Subsidiary enter into any letter of intent or agreement with a view to being
acquired by, or effecting a business combination with any other Person; or any
agreement to merge, to consolidate, to combine with or to sell a material
portion of its assets or to be acquired in any other manner by any other Person
or to acquire a material amount of assets or a material equity position in any
other Person, whether financial or otherwise;
(i) By UPC or INTERIM should CBI or any CBI
Subsidiary enter into any formal agreement, letter of understanding, memorandum
or other similar arrangement with any bank regulatory authority establishing a
formal capital plan requiring CBI or any CBI Subsidiary to raise additional
capital or to sell a substantial portion of its assets;
(j) By either Party, without penalty, during the "due
diligence review" period described in Section 2.3 of this Reorganization
Agreement in the manner provided, and on the basis set forth in said Section
2.3.
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(k) By CBI in the event that there shall have
been, in CBI's good faith opinion, a material adverse change in the business,
property, assets (including loan portfolios), liabilities (whether absolute,
accrued, contingent or otherwise), prospects, operations, liquidity, income,
condition (financial or otherwise) or net worth of UPC; or
If a Party should elect to terminate this Reorganization Agreement pursuant to
subsections (b), (c), (d), (e), (f), (g), (h), (i), (j) or (k) of this Section
9.1, it shall give notice to the other Party, in writing, of its election in
the manner prescribed in Section 10.1 ("Notices") of this Reorganization
Agreement.
9.2 Effect of Termination. In the event that this
Reorganization Agreement should be terminated pursuant to Section 9.1 hereof,
all further obligations of the Parties under this Reorganization Agreement
shall terminate without further liability of any Party to another; provided,
however, that a termination under Section 9.1 hereof shall not relieve any
Party of any liability for a breach of this Reorganization Agreement or for any
misstatement or misrepresentation made hereunder prior to such termination, or
be deemed to constitute a waiver of any available remedy for any such breach,
misstatement or misrepresentation.
ARTICLE 10
GENERAL PROVISIONS
10.1 Notices. Any notice, request, demand and other
communication which either Party hereto may desire or may be required hereunder
to give shall be in writing and shall be deemed to be duly given if delivered
personally or mailed by certified or registered mail (postage prepaid, return
receipt requested), air courier or facsimile transmission, addressed or
transmitted to such other Party as follows:
If to UPC/INTERIM: Union Planters Corporation
Post Office Box 387 (for mailing)
Memphis, Tennessee 38147
7130 Goodlett Farms Parkway (for deliveries)
Memphis, Tennessee 38018
Fax: (901) 383-2877
Attn: Mr. Jackson W. Moore, President
E. James House, Jr., Esquire, Secretary
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With a copy to: McDonnell Dyer, P.L.C
Post Office Box 775000 (for mailing)
Memphis, TN 38177-5000
6075 Poplar Avenue (Suite 650) (deliveries)
Memphis, TN 38119
Fax: (901) 537-1010
Attn: Marion S. Boyd, Jr.
If to CBI: Capital Bancorporation, Inc.
Post Office Box 2017 (for mailing)
Cape Girardeau, MO 63702-2017
407 N. Kingshighway (4th Floor) (deliveries)
Cape Girardeau, MO 63701
Fax: (314) 335-1085
Attn: Mr. Van H. Puls
President & Chief Executive Officer
Mr. David G. Collier, Secretary
With a copy to: Peper, Martin, Jensen, Maichel and Hetlage
720 Olive Street (24th Floor)
St. Louis, MO 63101
Fax: (314) 621-4834
Attn: John R. Short, Esq.
or to such other address as any Party hereto may hereafter designate to the
other Parties in writing. Notice shall be deemed to have been given on the
date reflected in the proof or evidence of delivery, or if none, on the date
actually received.
10.2 Assignability and Parties in Interest. This
Reorganization Agreement shall not be assignable by any of the Parties hereto;
provided, however, that UPC may assign, set over and transfer all, or any part
of its rights and obligations under this Reorganization Agreement to any one or
more of its present or future Affiliates. This Reorganization Agreement shall
inure to the benefit of, and be binding only upon the Parties hereto and their
respective successors and permitted assigns and no other Persons.
10.3 Governing Law. This Reorganization Agreement shall
be governed by, and construed and enforced in accordance with, the internal
laws, and not the laws pertaining to choice or conflicts of laws, of the State
of Tennessee, unless and to the extent that federal law controls. Any dispute
arising between the Parties in connection with the transactions which are the
subject of this Reorganization Agreement shall be heard in a court of competent
jurisdiction located in Tennessee.
10.4 Counterparts. This Reorganization Agreement may be
executed simultaneously in one or more counterparts, each of
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<PAGE> 90
which shall be deemed an original, but all of which shall constitute but one
and the same instrument.
10.5 Best Efforts. CBI, each CBI Subsidiary, UPC and
INTERIM each agrees to use its best efforts to complete the transactions
contemplated by this Reorganization Agreement; provided, however, that the use
of best efforts by UPC shall not obligate UPC or INTERIM to obtain or to
provide CBI or any CBI Subsidiary additional capital in an amount, to divest
any Subsidiary or branch, or to meet any other condition which may be imposed
by any Regulatory Authority as a condition to approval which UPC or INTERIM
shall deem in good faith to be unreasonable in the circumstances.
10.6 Publicity. The Parties agree that press releases and
other public announcements to be made by any of them with respect to the
transactions contemplated hereby shall be subject to mutual agreement.
Notwithstanding the foregoing, each of the Parties hereto may respond to
inquiries relating to this Reorganization Agreement and the transactions
contemplated hereby by the press, employees or customers without any notice or
further consent of the other Parties, provided, however, that the Parties shall
mutually develop in advance, responses to anticipated inquiries by the press.
10.7 Entire Agreement. This Reorganization Agreement,
together with the Plan of Merger which is Exhibit A hereto, the Schedules,
Annexes, Exhibits and certificates required to be delivered hereunder and any
amendments or addenda hereafter executed and delivered in accordance with
Section 10.9 hereof constitute the entire agreement of the Parties hereto
pertaining to the transactions contemplated hereby and supersede all prior
written and oral (and all contemporaneous oral) agreements and understandings
of the Parties hereto concerning the subject matter hereof. The Schedules,
Annexes, Exhibits and certificates attached hereto or furnished pursuant to
this Reorganization Agreement are hereby incorporated as integral parts of this
Reorganization Agreement. Except as provided herein, by specific language and
not by mere implication, this Reorganization Agreement is not intended to
confer upon any other person not a Party to this Reorganization Agreement any
rights or remedies hereunder.
10.8 Severability. If any portion or provision of this
Reorganization Agreement should be determined by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such
portion or provision shall be ineffective as to that jurisdiction to the extent
of such invalidity, illegality or unenforceability, without affecting in any
way the validity or enforceability of the remaining portions or provisions
hereof in such jurisdiction or rendering that or any
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other portions or provisions of this Reorganization Agreement invalid, illegal
or unenforceable in any other jurisdiction.
10.9 Modifications, Amendments and Waivers. At any time
prior to the Closing or termination of this Reorganization Agreement, the
Parties may, solely by written agreement executed by their duly authorized
officers:
(a) extend the time for the performance of any of
the obligations or other acts of the other Party hereto;
(b) waive any inaccuracies in the representations
and warranties made by the other Party contained in this Reorganization
Agreement or in the Annexes, Schedules or Exhibits hereto or any other document
delivered pursuant to this Reorganization Agreement;
(c) waive compliance with any of the covenants or
agreements of the other Party contained in this Reorganization Agreement; and
(d) amend or add to any provision of this
Reorganization Agreement or the Plan of Merger; provided, however, that,
subject to the provisions of Section 2.5, no provision of this Reorganization
Agreement may be amended or added to except by an agreement in writing signed
by the Parties hereto or their respective successors in interest and expressly
stating that it is an amendment to this Reorganization Agreement.
10.10 Interpretation. The headings contained in this
Reorganization Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Reorganization Agreement.
10.11 Payment of Expenses. Except as set forth herein, UPC,
INTERIM and CBI shall each pay its own fees and expenses (including, without
limitation, legal fees and expenses) incurred by it in connection with the
transactions contemplated hereunder.
10.12 Finders and Brokers. Except as disclosed in Schedule
10.12, UPC, INTERIM, CBI and each CBI Subsidiary represent and warrant to each
other that they have employed no broker or finder in connection with the
transactions described in this Reorganization Agreement under an arrangement
pursuant to which a fee is, or may be due to such broker or finder as a result
of the execution of this Reorganization Agreement or the closing of the
transactions contemplated herein. This section shall survive the termination
of this Reorganization Agreement.
REORGANIZATION AGREEMENT - Page 85
<PAGE> 92
10.13 Equitable Remedies. The Parties hereto agree that, in
the event of a breach of this Reorganization Agreement by CBI or any CBI
Subsidiary, UPC and INTERIM will be without an adequate remedy at law by reason
of the unique nature of CBI and each CBI Subsidiary. In recognition thereof,
in addition to (and not in lieu of) any remedies at law which may be available
to UPC and INTERIM, UPC and INTERIM shall be entitled to obtain equitable
relief, including the remedies of specific performance and injunction, in the
event of a breach of this Reorganization Agreement by CBI or any CBI
Subsidiary, and no attempt on the part of UPC or INTERIM to obtain such
equitable relief shall be deemed to constitute an election of remedies by UPC
or INTERIM which would preclude UPC or INTERIM from obtaining any remedies at
law to which it would otherwise be entitled. CBI and each CBI Subsidiary
covenant that they shall not contend in any such proceeding that UPC or INTERIM
is not entitled to a decree of specific performance by reason of having an
adequate remedy at law.
10.14 Attorneys' Fees. If any Party hereto shall bring an
action at law or in equity to enforce its rights under this Reorganization
Agreement (including an action based upon a misrepresentation or the breach of
any warranty, covenant, agreement or obligation contained herein), the
prevailing Party in such action shall be entitled to recover from the other
Party its reasonable costs and expenses necessarily incurred in connection with
such action (including fees, disbursements and expenses of attorneys and costs
of investigation).
10.15 No Waiver. No failure, delay or omission of or by any
Party in exercising any right, power or remedy upon any breach or default of
any other Party shall impair any such rights, powers or remedies of the Party
not in breach or default, nor shall it be construed to be a waiver of any such
right, power or remedy, or an acquiescence in any similar breach or default;
nor shall any waiver of any single breach or default be deemed a waiver of any
other breach or default theretofore or thereafter occurring. Any waiver,
permit, consent or approval of any kind or character on the part of any Party
of any provisions of this Reorganization Agreement must be in writing and must
be executed by the Parties to this Reorganization Agreement and shall be
effective only to the extent specifically set forth in such writing.
10.16 Remedies Cumulative. All remedies provided in this
Reorganization Agreement, by law or otherwise, shall be cumulative and not
alternative.
IN WITNESS WHEREOF, each of the Parties hereto has duly executed and
delivered this Reorganization Agreement or has caused this Reorganization
Agreement to be executed and delivered
REORGANIZATION AGREEMENT - Page 86
<PAGE> 93
in its name and on its behalf by its representatives thereunto duly authorized,
all as of the date first written above.
CAPITAL BANCORPORATION, INC.
By:
-------------------------------
Van H. Puls
Its: President and Chief
Executive Officer
ATTEST:
- ------------------------------
David G. Collier, Secretary
CAPITAL TRUST Dated February 4, 1994
------------------------------------
William G. Lauber, Co-trustee
------------------------------------
Douglas D. Hommert, Co-trustee
PAN-BANK TRUST Dated February 11, 1994
------------------------------------
William G. Lauber, Co-trustee
------------------------------------
Douglas D. Hommert, Co-trustee
CNN-BANK TRUST Dated February 11, 1994
------------------------------------
William G. Lauber, Co-trustee
------------------------------------
Douglas D. Hommert, Co-trustee
REORGANIZATION AGREEMENT - Page 87
<PAGE> 94
JJN-BANK TRUST Dated February 4, 1994
------------------------------------
William G. Lauber, Co-trustee
------------------------------------
Douglas D. Hommert, Co-trustee
MDN-BANK TRUST Dated February 4, 1994
------------------------------------
William G. Lauber, Co-trustee
------------------------------------
Douglas D. Hommert, Co-trustee
UNION PLANTERS CORPORATION
By:
-------------------------------
Jackson W. Moore
Its: President
ATTEST:
- ------------------------------
E. James House, Jr., Secretary
CBI ACQUISITION COMPANY, INC.
By:
-------------------------------
Jackson W. Moore
Its: President
ATTEST:
- ------------------------------
E. James House, Jr., Secretary
REORGANIZATION AGREEMENT - Page 88
<PAGE> 95
EXHIBIT A
PLAN OF MERGER
SETTING FORTH THE PLAN OF MERGER
OF
CAPITAL BANCORPORATION, INC.
(A MISSOURI CORPORATION)
WITH AND INTO
CBI ACQUISITION COMPANY, INC.
(A TENNESSEE CORPORATION)
THIS PLAN OF MERGER (the "Plan of Merger") is made and entered into as
of the ____ day of __________, 1995, by and between CAPITAL BANCORPORATION,
INC. ("CBI"), a corporation chartered and existing under the laws of the State
of Missouri which is a registered bank holding company and whose principal
offices are located at 407 N. Kingshighway, Fourth Floor, Cape Girardeau, Cape
Girardeau County, Missouri 63701; UNION PLANTERS CORPORATION ("UPC"), a
corporation organized and existing under the laws of the State of Tennessee
having its principal office at 7130 Goodlett Farms Parkway, Memphis, Shelby
County, Tennessee 38018 and which is registered as a bank holding company under
the Bank Holding Company Act of 1956; and CBI ACQUISITION COMPANY, INC.
("INTERIM"), a corporation chartered and existing under the laws of the State
of Tennessee, whose principal place of business is located at 7130 Goodlett
Farms Parkway, Memphis, Shelby County, Tennessee 38018. All of the authorized,
issued and outstanding shares of capital stock of INTERIM are owned and held of
record by UPC.
PREAMBLE
WHEREAS, UPC, INTERIM and CBI have entered into an Agreement and Plan
of Reorganization dated as of the 20th day of June, 1995 (the "Reorganization
Agreement") to which this Plan of Merger is Exhibit A and is incorporated by
reference as an integral part thereof, providing for the merger of CBI with and
into INTERIM (which would be the Surviving Corporation), the conversion and
cancellation of all of the CBI Series C Preferred Stock and the acquisition of
all of the CBI Common Stock outstanding immediately prior to the Effective Time
of the Merger by UPC for the Consideration set forth in the Reorganization
Agreement and in this Plan of Merger; and
PLAN OF MERGER - EXHIBIT A TO REORGANIZATION AGREEMENT - PAGE 89
<PAGE> 96
WHEREAS, As provided in the Reorganization Agreement, UPC has caused
INTERIM to join in this Plan of Merger by executing and delivering same; and
WHEREAS, The Boards of Directors of UPC, INTERIM and CBI are each of
the opinion that the interests of their respective corporations and their
corporations' respective shareholders would best be served if CBI were to be
merged with and into INTERIM (the "Surviving Corporation") which would survive
the Merger, on the terms and conditions provided in the Reorganization
Agreement and in this Plan of Merger and, upon such Merger becoming effective,
the Surviving Corporation would continue as a wholly-owned subsidiary of UPC.
NOW, THEREFORE, in consideration of the covenants and agreements of
the Parties contained herein, CBI, UPC and INTERIM hereby make, adopt and
approve this Plan of Merger in order to set forth the terms and conditions for
the merger of CBI with and into INTERIM, the survivor thereof (the "Merger").
ARTICLE I.
DEFINITIONS
1.1 As used in this Plan of Merger and in any amendments hereto,
all capitalized terms herein shall have the meanings assigned to such terms in
the Reorganization Agreement unless otherwise defined herein.
ARTICLE 2
CAPITALIZATION
2.1 CBI ACQUISITION COMPANY, INC. The authorized capital stock
of INTERIM consists of 1,000 shares of common stock having a par value of $1.00
per share (the "INTERIM Common Stock") and no shares of preferred stock. As of
the date of this Plan of Merger, 1,000 shares of INTERIM Common Stock are
issued and outstanding and no shares of INTERIM Common Stock are held by it as
treasury stock. All of such issued and outstanding shares of INTERIM Common
Stock are owned beneficially and of record by UPC.
2.2 CAPITAL BANCORPORATION, INC. The authorized capital stock of
CBI consists of 6,500,000 shares of common stock having a par value of $.10 per
share (the "CBI Common Stock"), and 200,000 shares of preferred stock having a
par value of $1.00 per share (the "CBI Preferred Stock). As of the date
hereof, 3,067,268 shares of CBI Common Stock were issued and outstanding, no
shares of CBI Common Stock were held by CBI as CBI Treasury Stock and 27,600
shares of CBI Series C Preferred Stock were issued and outstanding.
PLAN OF MERGER - EXHIBIT A TO REORGANIZATION AGREEMENT - PAGE 90
<PAGE> 97
ARTICLE 3
PLAN OF MERGER
3.1 Constituent Corporations. The name of each constituent
corporation to the Merger is:
CBI ACQUISITION COMPANY, INC.
and
CAPITAL BANCORPORATION, INC.
3.2 Surviving Corporation. The Surviving Corporation shall be:
CBI ACQUISITION COMPANY, INC.
the name of which shall, at the Effective Time of the Merger, be changed to and
thereafter continue to be:
CAPITAL BANCORPORATION, INC.
3.3 Terms and Conditions of Merger. The Merger shall be
consummated only pursuant to, and in accordance with, this Plan of Merger and
the Reorganization Agreement. Conditioned upon the satisfaction or lawful
waiver (by the Party or Parties entitled to the benefit thereof) of all
conditions precedent to consummation of the Merger, the Merger shall become
effective on the date and at the time of filing of Articles of Merger and this
Plan of Merger with the Secretary of State of the State of Tennessee or at such
later date and time as shall be specified in such Articles of Merger (the
"Effective Time of the Merger"). At the Effective Time of the Merger, CBI
shall be merged with and into INTERIM which shall survive the Merger, whereupon
the separate existence of CBI shall cease and INTERIM and CBI shall become and
be a single corporation in INTERIM as the Surviving Corporation as provided in
Section 48-21-108 of the Tennessee Code Annotated (the "Tennessee Code").
Thereafter the Surviving Corporation shall possess all of the assets, rights,
privileges, appointments, powers, licenses, permits and franchises of both CBI
and INTERIM, whether of a public or private nature, and shall be subject to all
of the liabilities, restrictions, disabilities, and duties of both CBI and
INTERIM as more particularly described in ARTICLE 4 below.
3.4 Charter. At the Effective Time of the Merger, the Charter of
INTERIM, as in effect immediately prior to the Effective Time of the Merger,
shall continue to be the Charter of INTERIM as the Surviving Corporation unless
and until the same shall be amended as provided by law and the terms of such
Charter.
PLAN OF MERGER - EXHIBIT A TO REORGANIZATION AGREEMENT - PAGE 91
<PAGE> 98
3.5 Bylaws. At the Effective Time of the Merger, the Bylaws of
INTERIM, as in effect immediately prior to the Effective Time of the Merger,
shall continue to be its Bylaws as the Surviving Corporation unless and until
amended or repealed as provided by law, its Charter or such Bylaws.
3.6 Directors and Officers.
(a) The following persons shall, at the Effective Time of the
Merger, become and be the directors of the Surviving Corporation: Jackson W.
Moore, Jack M. Parker, M. Kirk Walters and E. James House, Jr. all of whom are
residents of Memphis, Tennessee, each to hold office as provided in the Charter
and Bylaws of the Surviving Corporation unless and until their respective
successors shall have been elected and shall have qualified or they shall be
removed as provided therein.
(b) The officers of CBI in office immediately prior to the
Effective Time of the Merger shall continue as the officers of the Surviving
Corporation, to hold office as provided in the Charter and Bylaws of the
Surviving Corporation unless and until their respective successors shall have
been elected or appointed and shall have qualified or they shall be removed as
provided therein.
3.7 Name. At the Effective Time of the Merger, the name of
INTERIM as the Surviving Corporation shall be changed to:
CAPITAL BANCORPORATION, INC.
ARTICLE 4
DESCRIPTION OF THE TRANSACTION
4.1 Terms of the Merger.
(a) Satisfaction of Conditions to Closing. After the
transactions contemplated in the Reorganization Agreement shall have been
approved by the shareholders of CBI and INTERIM and each other condition to the
obligations of the Parties hereto (other than those conditions which are to be
satisfied by delivery of documents by any Party to any other Party) shall have
been satisfied or, if lawfully permitted, waived by the Party or Parties
entitled to the benefits thereof, a closing (the "Closing") shall be held on
the date (the "Closing Date") and at the time of day and place referred to in
Section 3.2 of the Reorganization Agreement.
(b) Effective Time of the Merger. Upon the satisfaction
of all conditions to Closing, the Merger shall become effective on the date and
at the time of filing Articles of Merger and this Plan of Merger with the
Secretary of State of
PLAN OF MERGER - EXHIBIT A TO REORGANIZATION AGREEMENT - PAGE 92
<PAGE> 99
the State of Tennessee or at such later date and time as shall be specified in
such Articles of Merger (the "Effective Time of the Merger").
(c) Shares of INTERIM to Remain Outstanding. At the
Effective Time of the Merger, each share of $1.00 par value common stock of
INTERIM (the "INTERIM Common Stock") which shall be issued and outstanding
immediately prior to the Effective Time of the Merger shall remain outstanding
as one share of the issued and outstanding common stock of the Surviving
Corporation.
(d) Conversion of Outstanding Shares of CBI.
(1) CBI PREFERRED STOCK. CBI has outstanding 27,600
shares of its Series C Preferred Stock having a stated value and
redemption value of $500.00 per share. The CBI Series C Preferred
Stock is currently redeemable at the option of CBI at $500 per share
together with unpaid accrued dividends thereon with the prior written
consent of the Federal Reserve. Unless earlier redeemed by CBI, the
Series C Preferred Stock shall, as a result of the Merger becoming
effective and without any action on the part of anyone, be converted
exclusively into the right of the holders thereof to receive in cash
Five Hundred Dollars ($500) per share, together with all accrued and
unpaid dividends thereon (whether or not declared) calculated to the
Effective Date of the Merger in the manner provided in CBI's
CERTIFICATE OF PREFERRED STOCK DESIGNATION dated June 10 1992 pursuant
to which the CBI Series C Preferred Stock has been issued.
(2) CBI COMMON STOCK. At the Effective Time of the
Merger, each share of common stock of CBI having a par value of $.10
per share (the "CBI Common Stock") which shall be validly issued and
outstanding immediately prior to the Effective Time of the Merger
shall, by virtue of the Merger becoming effective and without any
further action on the part of anyone, be converted, exchanged and
cancelled as provided in Section 4.1(e) hereof.
(e) Conversion and Exchange of Shares of CBI Common
Stock; Exchange Ratio. At the Effective Time of the Merger, all outstanding
shares of CBI Common Stock held by the CBI Record Holders immediately prior to
the Effective Time of the Merger shall, without any further action on the part
of anyone, cease to represent any interest (equity, shareholder or otherwise)
in CBI and shall, except for those shares held by any CBI Record Holders who
shall have properly perfected such Record Holders' dissenters' rights and shall
have maintained the perfected status of such dissenters' rights through the
Effective Time of the Merger, automatically be converted exclusively into, and
constitute only the right of each CBI Record Holder to receive in exchange for
such holder's shares of CBI Common Stock,
PLAN OF MERGER - EXHIBIT A TO REORGANIZATION AGREEMENT - PAGE 93
<PAGE> 100
whole shares of UPC Common Stock and a cash payment in settlement of any
fractional share of UPC Common Stock which shall remain after aggregating all
whole and fractional shares of UPC Common Stock to which the CBI Record Holder
is entitled as provided in this Section 4.1(e) hereof and Section 3.1(e) of the
Reorganization Agreement. The shares of UPC Common Stock and the cash
settlement of any remaining fractional share of UPC Common Stock deliverable by
UPC to the CBI Record Holders pursuant to the terms of the Reorganization
Agreement are sometimes collectively referred to herein as the "Consideration."
(1) THE EXCHANGE RATIO. Subject to any
adjustments which may be required by an event described in Subsections
4.1(e)(3) and 4.1(e)(4) below, the number of shares of UPC Common
Stock to be exchanged for each share of CBI Common Stock which shall
be issued and outstanding immediately prior to the Effective Time of
the Merger shall be based on an exchange ratio (the "Exchange Ratio")
of One and 185/1000 (1.185) shares of UPC Common Stock for each share
of CBI Common Stock which shall be outstanding immediately prior to
the Effective Time of the Merger. The Exchange Ratio specified in this
Section 4.1(e) is based upon there being no more than an aggregate of
3,067,268 shares of CBI Common Stock validly issued and outstanding
immediately prior to the Effective Time of the Merger in addition to
any shares of CBI Common Stock which shall have been issued in
connection with: (i) the exercise of options or warrants which were
outstanding on the date of the Reorganization Agreement, the existence
of which was specifically disclosed in the Reorganization Agreement or
in a Schedule of Exceptions thereto or (ii) the conversion of the
principal of the CBI Convertible, Subordinated Capital Notes referred
to in Section 2.8, of the Reorganization Agreement; provided, however,
that no fractional shares of UPC Common Stock shall be issued in the
transaction and if, after aggregating all of the whole and fractional
shares of UPC Common Stock to which a CBI Record Holder shall be
entitled based upon the Exchange Ratio, there should be a fractional
share of UPC Common Stock remaining, such fractional share shall be
settled by a cash payment therefor pursuant to the Mechanics of
Payment of the Consideration set forth in Section 4.1(f) hereof, which
cash settlement shall be based upon the Current Market Price Per Share
[as defined in the following Subsection 4.1(e)(2)] of one (1) full
share of UPC Common Stock.
(2) DEFINITION OF "CURRENT MARKET PRICE PER
SHARE." The "Current Market Price Per Share" shall be the average
price per share of the "last" real time trades (i.e., the "closing
price") of the UPC Common Stock on the New York Stock Exchange
("NYSE") Consolidated Tape (the information as published in The Wall
Street Journal,
PLAN OF MERGER - EXHIBIT A TO REORGANIZATION AGREEMENT - PAGE 94
<PAGE> 101
Midwestern Edition, shall be rebuttably presumed to be correct) for
each of the ten (10) general market trading days next preceding the
Closing Date on which the NYSE shall have been open for business (the
"Pricing Period"). In the event the UPC Common Stock should not trade
on one or more of the trading days during the Pricing Period (a "No
Trade Date"), any such No Trade Date shall be disregarded in computing
the average closing price per share of UPC Common Stock and the
average shall be based upon the "last" real time trades and the number
of days on which the UPC Common Stock actually traded on the NYSE
during the Pricing Period.
(3) EFFECT OF EXERCISE OF DISSENTERS' RIGHTS ON THE
EXCHANGE RATIO. Should CBI Record Holders holding as much as seven
percent (7%) of the shares of CBI Common Stock issued and outstanding
at the time of Closing have perfected such CBI Record Holders'
Dissenters' Rights pursuant to the Missouri Code and have maintained
the perfected status of such Dissenters' Rights through the Closing
Date, UPC and INTERIM have the right, exercisable in their sole
discretion, to either terminate the Reorganization Agreement without
penalty or, subject to the prior approval of a committee consisting of
those persons who were serving on the CBI Board of Directors
immediately prior to the Effective Time of the Merger, to reduce the
per share Consideration to be delivered by UPC hereunder (i.e., the
Exchange Ratio) by an amount sufficient to offset against the
aggregate Consideration the amount by which (A) the aggregate amount
paid, or required to be paid, by INTERIM as the Surviving Corporation
to such dissenting CBI Record Holders in satisfaction of their
Dissenters' Rights shall exceed (B) the value of the Consideration
which would have been delivered hereunder to such dissenting Record
Holders had they not exercised their Dissenters' Rights. The "value"
referred to in the previous sentence shall be the Current Market Price
Per Share of the UPC Common Stock as defined in Subsection 4.1(e)(2)
above.
(4) EFFECT OF STOCK SPLITS, REVERSE STOCK SPLITS,
STOCK DIVIDENDS AND SIMILAR CHANGES IN THE CAPITAL OF CBI. Should CBI
effect any stock splits, reverse stock splits, stock dividends or
similar changes in its respective capital accounts subsequent to the
date of this Reorganization Agreement but prior to the Effective Time
of the Merger, the Exchange Ratio shall be adjusted in such a manner
as the Board of Directors of UPC shall deem in good faith to be fair
and reasonable in order to give effect to such changes.
PLAN OF MERGER - EXHIBIT A TO REORGANIZATION AGREEMENT - PAGE 95
<PAGE> 102
(f) Mechanics of Payment of Consideration.
(1) THE CBI COMMON STOCK. Within five days after
the Effective Time of the Merger and the receipt of a certified list
of all of the CBI Record Holders, the Corporate Trust Department of
Union Planters National Bank, Memphis, Tennessee (the "Exchange
Agent") shall deliver to each of the CBI Record Holders such materials
and information as may be deemed necessary by the Exchange Agent to
advise the CBI Record Holders of the procedures required for proper
surrender of their certificates formerly evidencing and representing
shares of the CBI Common Stock in order for the CBI Record Holders to
receive the Consideration. Such materials shall include, without
limitation, a Letter of Transmittal, an Instruction Sheet, and a
return envelope addressed to the Exchange Agent (collectively the
"Shareholder Materials"). All Shareholder Materials shall be sent by
First Class United States mail to the CBI Record Holders at the
addresses set forth on a certified shareholder list to be delivered by
CBI to UPC at the Closing (the "Shareholder List"). As soon as
reasonably practicable thereafter, the CBI Record Holders of all of
the outstanding shares of CBI Common Stock, shall deliver, or cause to
be delivered, to the Exchange Agent, pursuant to the Shareholder
Materials, the certificates formerly evidencing and representing all
of the shares of CBI Common Stock which were validly issued and
outstanding immediately prior to the Effective Time of the Merger, and
the Exchange Agent shall take prompt action to process such
certificates formerly evidencing and representing shares of CBI Common
Stock received by it (including the prompt return of any defective
submissions with instructions as to those actions which the Exchange
Agent may deem necessary to remedy any defects). Upon receipt of the
proper submission of the certificate(s) formerly representing and
evidencing ownership of the shares of CBI Common Stock, the Exchange
Agent shall, on or prior to the 10th day after the receipt of such
certificates, mail to the former CBI Record Holders in exchange for
the certificate(s) surrendered by them, the Consideration to be paid
for each such CBI Record Holder's shares of CBI Common Stock evidenced
by the certificate or certificates which were cancelled and converted
exclusively into the right to receive the Consideration upon the
Merger becoming effective. After the Effective Time of the Merger and
until properly surrendered to the Exchange Agent, each outstanding
certificate or certificates which formerly evidenced and represented
the shares of CBI Common Stock of a CBI Record Holder, subject to the
provisions of this Section, shall be deemed for all corporate purposes
to represent and evidence only the right to receive the Consideration
into which such CBI Record Holder's shares of CBI Common Stock were
converted and aggregated at the
PLAN OF MERGER - EXHIBIT A TO REORGANIZATION AGREEMENT - PAGE 96
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Effective Time of the Merger. Unless and until the outstanding
certificate or certificates which immediately prior to the Effective
Time of the Merger evidenced and represented the CBI Record Holder's
CBI Common Stock shall have been properly surrendered as provided
above, the Consideration payable to the CBI Record Holder(s) of the
cancelled shares as of any time after the Effective Date shall not be
paid to the CBI Record Holder(s) of such certificate(s) until such
certificates shall have been surrendered in the manner required. No
dividends or other distributions which shall otherwise be payable on
the shares of UPC Common Stock constituting the Consideration shall be
paid to any CBI Record Holders entitled to receive such shares until
such persons shall have surrendered in accordance with the Shareholder
Materials their certificates formerly representing shares of CBI
Common Stock. Upon such proper surrender, there shall be paid to such
person in whose name the shares of UPC Common Stock shall be issued
any dividends or other distributions, the record date of which shall
have occurred between the Effective Time of the Merger and such
surrender, with respect to such shares of UPC Common Stock, without
interest thereon. Each CBI Record Holder will be responsible for all
federal, state and local taxes which may be incurred by him or her on
account of his receipt of the Consideration to be paid in the Merger.
The CBI Record Holder(s) of any certificate(s) which shall have been
lost or destroyed may nevertheless, subject to the provisions of this
Section 4.1(f), receive the Consideration to which each such CBI
Record Holder is entitled, provided that each such CBI Record Holder
shall deliver to UPC and to the Exchange Agent: (i) a sworn statement
certifying the fact of such loss or destruction and specifying the
circumstances thereof and (ii) a lost instrument bond in form
satisfactory to UPC and the Exchange Agent which shall have been duly
executed by a corporate surety satisfactory to UPC and the Exchange
Agent, indemnifying the Surviving Corporation, UPC, the Exchange Agent
(and their respective successors) to their satisfaction against any
loss or expense which any of them may incur as a result of such lost
or destroyed certificates being thereafter presented. Any costs or
expenses which may arise from such replacement procedure, including
the premium on the lost instrument bond, shall be for the account of
the CBI Record Holder. Should the Exchange Ratio potentially be
subject to adjustment in the manner provided in Section 4.1(e)(3) or
Section 4.1(e)(4) above, the Exchange Agent shall, with the presumed
consent of each CBI Record Holder, withhold delivery of the
Consideration until such time as the amount of the adjustment to the
Exchange Ratio shall have been determined upon the proceedings upon
the Dissenters' Rights having become final; provided, however, that if
a CBI Record Holder should so elect in his or her Letter of
Transmittal, the
PLAN OF MERGER - EXHIBIT A TO REORGANIZATION AGREEMENT - PAGE 97
<PAGE> 104
Exchange Agent shall retain for future delivery only such part
of the Consideration as shall be reasonably estimated to be required
to effect the adjustment described in Section 4.1(e)(3) or Section
4.1(e)(4) hereof and shall deliver to the CBI Record Holder the
remainder of the Consideration.
(2) THE CBI PREFERRED STOCK. Within five days after
the Effective Time of the Merger and the receipt of a certified list
of all of those persons who shall be holders of record of the CBI
Series C Preferred Stock immediately prior to the Effective Time of
the Merger, the Exchange Agent shall deliver to each of such holders
of CBI Series C Preferred Stock such materials and information as may
be deemed necessary by the Exchange Agent to advise them of the
procedures required for proper surrender of their certificates
formerly evidencing and representing shares of the CBI Series C
Preferred Stock in order for such holders thereof to receive the
consideration into which such shares shall have been converted upon
the Merger becoming effective. Such procedures shall be the same as
the procedures set forth above with respect to the surrender of the
CBI Common Stock certificates against receipt of the Consideration;
provided, however, that if all of such CBI Series C Preferred Stock
shall be held of record at the Effective Time of the Merger by Capital
Bank of Cape Girardeau County or its successor as Depositary for the
benefit of the holders of Depositary Shares, each representing a
1/25th (or other)interest in a share of CBI Series C Preferred Stock,
the Exchange agent shall, by prior arrangement with such Depositary,
cause to be transferred by wire transfer to the Depositary against
delivery of the certificates formerly evidencing and representing
shares of the CBI Series C Preferred Stock immediately available funds
in an amount sufficient to pay the redemption price of $500 per share
plus unpaid accrued dividends as provided in Subsection 4.1(d)(1) of
this Plan of Merger. This transfer shall be effected by the Exchange
Agent as soon as practicable after the Effective Time of the Merger.
4.2 Transfer of Assets. At the Effective Time of the Merger,
INTERIM, as the Surviving Corporation, shall thereupon and thereafter possess
all of the rights, assets, licenses, permits, privileges, immunities,
franchises and other similar interests, as well of a public as of a private
nature, of both of INTERIM and CBI; and all property, whether real personal, or
mixed, and whether tangible or intangible, and whether liquidated or
unliquidated, and whether real or contingent; and all debts due on whatever
account, including subscriptions to shares, and all other choses in action, and
all and every other interest, of or belonging to or due to each of INTERIM and
CBI, shall be taken and deemed to be transferred to, and vested in INTERIM as
the Surviving Corporation without further act, deed, conveyance,
PLAN OF MERGER - EXHIBIT A TO REORGANIZATION AGREEMENT - PAGE 98
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assignment or other instrument of transfer, all as provided in Section
48-23-108(2) of the Tennessee Code; and the title to any real estate, or any
interest therein, under the laws of the State of Missouri vested in INTERIM or
CBI as the merging corporations, shall not revert or be in any way impaired by
reason of such Merger as provided in Title 23, Section 351.450(4) of the
Missouri Code.
4.3 Assumption of Liabilities. Following the Effective Time of
the Merger, the Surviving Corporation shall thenceforth be responsible and
liable for all of the debts, liabilities, obligations and contracts of both
INTERIM and CBI, whether the same shall be matured or unmatured; whether
accrued, absolute, contingent or otherwise; and whether or not reflected or
reserved against in the balance sheets, other financial statements, books of
account or records of INTERIM, or CBI; and any claim existing or action or
proceeding pending against either of such corporations may be prosecuted to
judgment as if such Merger had not taken place, or INTERIM as such Surviving
Corporation may be substituted in its place. Neither the rights of creditors
nor any liens upon the property of INTERIM or CBI shall be impaired by their
Merger, all as provided in Section 48-21-108(3) of the Tennessee Code.
4.4 Dissenters' Rights of CBI Shareholders. Any CBI Record Holder
of shares of CBI Common Stock who shall comply strictly with the provisions of
Title 23 Section 351.455 of the Missouri Code, shall be entitled to dissent
from the Merger and to seek those appraisal remedies afforded by the Missouri
Code. A CBI Record Holder who shall have perfected such holder's "Dissenter's
Rights" is referred to herein as an "CBI Dissenting Shareholder." UPC and
INTERIM shall not be obligated to consummate the Merger if CBI Record Holders
holding or controlling more than ten percent (10%) of the shares of the CBI
Common Stock issued and outstanding immediately prior to the Effective Time of
the Merger shall have perfected and maintained in perfected status their
Dissenters' Rights in accordance with the Missouri Code and the perfected
status of said Dissenters' Rights shall have continued to the time of Closing.
4.5 Approvals of Shareholders of CBI and INTERIM. In order to
become effective, the Merger must be approved by the respective shareholders of
CBI and of INTERIM at meetings to be called for that purpose by their
respective Boards of Directors, or by their unanimous action by written consent
complying fully with the laws of Missouri and Tennessee.
4.6 CBI Stock Options. Each CBI Stock Option or warrant which
shall be outstanding at the Effective Time of the Merger shall, without any
action on the part of anyone, be automatically converted into an option to
acquire at the exercise price per share of CBI Common Stock that number of
shares of UPC Common Stock as shall be equal to the Exchange Ratio; e.g.,
assuming
PLAN OF MERGER - EXHIBIT A TO REORGANIZATION AGREEMENT - PAGE 99
<PAGE> 106
that the Exchange Ratio were 1.185 shares of UPC Common Stock for each share of
CBI Common Stock, a holder of an option or warrant to purchase 100 shares of
CBI Common Stock for $20.00 per share would, upon exercise by paying the
exercise price of $2,000, receive, after aggregation, 118 full shares of UPC
Common Stock and a cash settlement for the remaining .5 share based upon the
closing price of the UPC Common Stock on the date of exercise of the option or
warrant [100 X 1.185 = 118.5]. It is expected that at the Effective Time of
the Merger any validly issued and outstanding CBI Stock Options will either be
exercised by the holders thereof or converted into options to acquire shares of
UPC Common Stock at the election of the holders thereof.
4.7 CBI Convertible Subordinated Capital Notes. As of June 20,
1995, CBI had outstanding $207,400 in principal amount of 9% Convertible
Subordinated Capital Notes which are due and payable on June 30, 1997 (the "CBI
Convertible Notes" or "Notes"). At the option of the holders, the Notes are
convertible into shares of CBI Common Stock prior to maturity at the rate of
one share of CBI Common Stock for each $20.00 of principal outstanding on the
Notes. At the Effective Time of the Merger, without any action on the part of
anyone, the Notes shall automatically be modified such that each $20.00 of
outstanding principal would be convertible at the option of the holder into
that number of shares and fractional shares of UPC Common Stock which shall be
equal to the Exchange Ratio; i.e., assuming that the Exchange Ratio were 1.185
shares of UPC Common Stock for one share of CBI Common Stock, $20.00 of
outstanding principal would be convertible into 1.185 shares of UPC Common
Stock.
ARTICLE 5
AMENDMENTS AND WAIVERS
5.1 Amendments. To the extent permitted by law, this Plan of
Merger may be amended unilaterally by UPC and INTERIM as set forth in Sections
2.5 and 10.9(d) of the Reorganization Agreement; provided, however, that the
provisions of Section 4.3 of this Plan of Merger relating to the manner or
basis upon which shares of CBI Common Stock will be converted into the
exclusive right to receive the Consideration from UPC shall not be amended in
such a manner as to reduce the amount of the Consideration payable to the CBI
Record Holders determined as provided in Section 4.3 of this Plan of Merger nor
shall this Plan of Merger be amended to permit UPC to utilize assets other than
shares of UPC Common Stock and, with respect to any fractional share remaining
after aggregating all whole and fractional shares of a CBI Record Holder, cash
or good funds to make payment of the Consideration as provided in Section
3.1(e) of the Reorganization Agreement at any time after the Shareholders'
Meeting without the requisite approval (except as provided for in the
Reorganization Agreement) of the CBI Record Holders of the shares of CBI Common
Stock outstanding immediately prior to the Effective Time of the
PLAN OF MERGER - EXHIBIT A TO REORGANIZATION AGREEMENT - PAGE 100
<PAGE> 107
Merger and that no amendment to this Plan of Merger shall modify the
requirements of regulatory approval as set forth in Section 8.3(b) of the
Reorganization Agreement.
5.2 Authority for Amendments and Waivers. UPC shall have
the unilateral right to revise the structure of the corporate reorganization
contemplated by the Reorganization Agreement and this Plan of Merger in order
to achieve tax benefits or for any other reason which UPC may deem advisable;
provided, however, that UPC shall not have the right, without the approval of
the Board of Directors of CBI, to make any revision to the structure of the
Reorganization which (i) changes the amount of the Consideration which the CBI
Record Holders are entitled to receive [determined in the manner provided in
Section 3.1(e) of the Reorganization Agreement and Section 4.1(e) hereof]; (ii)
changes the intended tax-free effect of the Merger to UPC, INTERIM, CBI or to
any CBI Shareholder or CBI Subsidiary; (iii) would permit UPC to pay the
Consideration other than by delivery of shares of UPC Common Stock registered
with the SEC (in the manner described in Section 6.2 of the Reorganization
Agreement); or (iv) materially adversely affects the economic benefits of the
transaction from the perspective of the CBI Record Holders. UPC may exercise
this right of revision by giving written Notice to CBI in the manner provided
in Section 10.1 of the Reorganization Agreement, which Notice shall be in the
form of an amendment to the Reorganization Agreement and/or this Plan of Merger
or in the form of an Amended and Restated Agreement and Plan of Reorganization
and/or Plan of Merger.
Prior to the Effective Time of the Merger, UPC and INTERIM, acting
through their respective Boards of Directors or chief executive officers or
presidents or other authorized officers, shall have the right to amend this
Plan of Merger to postpone the Effective Time of the Merger to a date and time
subsequent to the time of filing of the Plan of Merger with the Tennessee
Secretary of State, to waive any default in the performance of any term of this
Plan of Merger by CBI, to waive or extend the time for the compliance or
fulfillment by CBI of any and all of its obligations under this Plan of Merger,
and to waive any or all of the conditions precedent to the obligations of UPC
and INTERIM under this Plan of Merger, except any condition that, if not
satisfied, would result in the violation of any law or applicable governmental
regulation.
Prior to the Effective Time of the Merger, CBI, acting through its
Board of Directors or chief executive officer or president or other authorized
officer, shall have the right to amend this Plan of Merger to postpone the
Effective Time of the Merger to a date and time subsequent to the time of
filing of the Plan of Merger with the Tennessee Secretary of State, to waive
any default in the performance of any term of this Plan of Merger by UPC or
INTERIM, to waive or extend the time for the compliance
PLAN OF MERGER - EXHIBIT A TO REORGANIZATION AGREEMENT - PAGE 101
<PAGE> 108
or fulfillment by UPC or INTERIM of any and all of their obligations under this
Plan of Merger, and to waive any or all of the conditions precedent to the
obligations of CBI under this Plan of Merger except any condition that, if not
satisfied, would result in the violation of any law or applicable governmental
regulation.
ARTICLE 6
MISCELLANEOUS
6.1 Notices. All notices or other communications which are
required or permitted hereunder shall be in writing and sufficient if delivered
by hand, by facsimile transmission, or by registered or certified mail, postage
pre-paid to the persons at the addresses set forth below (or at such other
addresses or facsimile numbers as may hereafter be designated as provided
below), and shall be deemed to have been delivered as of the date received by
the Party to which, or to whom it is addressed:
If to UPC or INTERIM:
Union Planters Corporation
Post Office Box 387 (for mailing)
Memphis, Tennessee 38147
7130 Goodlett Farms Parkway (for deliveries)
Memphis, Tennessee 38018
Fax: (901) 383-2877
Attn: Mr. Jackson W. Moore, President
E. James House, Jr., Esquire, Secretary
With copy to: McDonnell Dyer, P.L.C
Post Office Box 775000 (for mailing)
Memphis, TN 38177-5000
6075 Poplar Avenue (Suite 650) (deliveries)
Memphis, TN 38119
Fax: (901) 537-1010
Attn: Marion S. Boyd, Jr.
If to CBI: Capital Bancorporation, Inc.
Post Office Box 2017 (for mailing)
Cape Girardeau, MO 63702-2017
407 N. Kingshighway (4th Floor) (deliveries)
Cape Girardeau, MO 63701
Fax: (314) 335-1085
Attn: Mr. Van H. Puls,
President & Chief Executive Officer
Mr. David G. Collier, Secretary
With copy to: Peper, Martin, Jensen, Maichel and Hetlage
720 Olive Street (24th Floor)
St. Louis, MO 63101
Fax: (314) 621-4834
Attn: John R. Short, Esq.
PLAN OF MERGER - EXHIBIT A TO REORGANIZATION AGREEMENT - PAGE 102
<PAGE> 109
or to such other address as any Party hereto may hereafter designate to the
other Parties in writing pursuant to this Section 6.1. Notice shall be deemed
to have been given on the date reflected in the proof or evidence of delivery,
or if none, on the date actually received.
6.2 Governing Law. This Reorganization Agreement shall be
governed by, and construed and enforced in accordance with, the internal laws,
and not the laws pertaining to choice or conflicts of laws, of the State of
Tennessee, unless and to the extent that federal law controls and unless and to
the extent that the laws of Missouri control the procedures for effecting the
Merger and the substantive effect thereof.
6.3 Captions. The Captions heading the Sections in this Plan
of Merger are for convenience only and shall not affect the construction or
interpretation of this Plan of Merger.
6.4 Counterparts. This Plan of Merger may be executed in two
or more counterparts, each of which shall be deemed an original instrument, but
all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the Parties hereto has caused this Plan
of Merger to be executed and delivered in its name and on its behalf by its
representatives thereunto duly authorized, all as of the date first written
above.
CAPITAL BANCORPORATION, INC.
By:
---------------------------
Van H. Puls
Its: President and Chief
Executive Officer
ATTEST:
- ---------------------------
David G. Collier, Secretary
UNION PLANTERS CORPORATION
By:
----------------------------
Jackson W. Moore
Its: President
ATTEST:
- ------------------------------
E. James House, Jr., Secretary
PLAN OF MERGER - EXHIBIT A TO REORGANIZATION AGREEMENT - PAGE 103
<PAGE> 110
CBI ACQUISITION COMPANY, INC.
By:
--------------------------
Jackson W. Moore
Its: President
ATTEST:
- ------------------------------
E. James House, Jr., Secretary
PLAN OF MERGER - EXHIBIT A TO REORGANIZATION AGREEMENT - PAGE 104
<PAGE> 1
EXHIBIT 99(a)
Press Release dated June 20, 1995
<PAGE> 2
Exhibit 99(a)
JACK W. PARKER, CFO JUNE 20, 1995
UNION PLANTERS CORPORATION (UPC)
(901) 383-6781
DAVID G. COLLIER, CFO
CAPITAL BANCORPORATION (CABK)
(314) 334-0700
FOR IMMEDIATE RELEASE:
UNION PLANTERS SIGNS DEFINITIVE AGREEMENT
TO ACQUIRE CAPITAL BANCORPORATION
Memphis, Tennessee -- Union Planters Corporation's Chairman of the
Board, Benjamin W. Rawlins, Jr., and Capital Bancorporation, Inc.'s President
and CEO, Van H. Puls, jointly announced today that the two companies have
entered into a definitive agreement pursuant to which UPC would acquire all of
the outstanding stock of Capital in a transaction valued at approximately $114
million, based on UPC's June 19, 1995 closing stock price of $27.125.
Under the terms of the definitive agreement, UPC would exchange 1.185
shares of UPC common stock for each common share of Capital. The acquisition
which is to be accounted for as a pooling of interests, is expected to be
completed during the first quarter of 1996, and is subject to due diligence
review, shareholder and regulatory approval, and the satisfaction of certain
normal contractual closing conditions.
Capital Bancorporation is headquartered in Cape Girardeau, Missouri,
which is approximately 170 miles from UPC's headquarters
-MORE-
<PAGE> 3
in Memphis, Tennessee. Capital operates 31 locations through six affiliate
banks. Three of the banks are headquartered in southeast Missouri; one in
Columbia, Missouri; one in the St. Louis suburbs; and one in Springfield,
Missouri. As of March 31, 1995, Capital's total assets were approximately $982
million, total loans $778 million, total deposits $863 million, and
shareholders' equity $76 million.
Van H. Puls, Capital's President and CEO said, "Union Planters is a
quality organization, that like Capital, has grown from a community banking
concept and shares with Capital a reputation for providing superior levels of
customer service. I am confident that Union Planters will readily develop a
sense of partnership with Capital's customer base, employees, stockholders and
communities."
Benjamin W. Rawlins, Jr., UPC's Chairman and CEO, said "This is an
excellent opportunity for our shareholders to extend our banking franchise into
the State of Missouri. Capital's geography is very complementary to our
existing banking locations in northwest Tennessee and northeast Arkansas. Over
one-half of Capital's assets are in nearby southeast Missouri. There is also a
perfect match with our community banking philosophy. Capital's subsidiary
banks are generally community banks which emphasize serving the needs of their
local communities and whose boards of directors consist of individuals who
reside in those communities."
Union Planters Corporation, headquartered in Memphis, Tennessee, is a
$9.7-billion multi-bank holding company. At March 31, 1995 Union Planters had
38 subsidiary banks with 375 banking locations in Tennessee, Mississippi,
Arkansas, Louisiana, Alabama, and Kentucky.
-oOo-
