<PAGE> 1
As filed with the Securities and Exchange Commission on May 4, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
UNION PLANTERS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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TENNESSEE 6712 62-0859007
(State or other jurisdiction of (Primary Standard (I.R.S. Employer
incorporation or organization) Industrial Identification No.)
Classification Code Number)
</TABLE>
7130 GOODLETT FARMS PARKWAY
MEMPHIS, TENNESSEE 38018
(901) 383-6000
(Address, including zip code, and telephone number of
registrant's principal executive offices)
E. JAMES HOUSE, JR., ESQ.,
SECRETARY AND MANAGER OF THE LEGAL DEPARTMENT OF
UNION PLANTERS CORPORATION
7130 GOODLETT FARMS PARKWAY
MEMPHIS, TENNESSEE 38018
(901) 383-6584
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
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MARION S. BOYD, JR., ESQ. RICHARD N. MASSEY, ESQ.
McDonnell Dyer Rose Law Firm
6075 Poplar Avenue, Suite 650 120 East Fourth Street
Memphis, Tennessee 38119 Little Rock, Arkansas 72201
(901) 537-1000 (501) 375-9131
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO
THE PUBLIC: As soon as practicable after this Registration Statement becomes
effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box: [ ]
<PAGE> 2
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF EACH MAXIMUM MAXIMUM
CLASS OF OFFERING AGGREGATE
SECURITIES TO BE AMOUNT TO BE PRICE OFFERING AMOUNT OF
REGISTERED REGISTERED(1) PER UNIT(2) PRICE(3) REGISTRATION FEE
---------------- ------------- ----------- -------- ----------------
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Common Stock having a par value
of $5.00 per share including
rights to purchase shares
of Series A Preferred Stock 353,193 $24.50 $8,653,228.50 $2,983.87
under certain circumstances
</TABLE>
_______________
(1) Estimated. Includes additional consideration increments through the
latest possible Closing Date of November 30, 1995, as provided for in
the Reorganization Agreement.
(2) Estimated. Reflects the closing trade of the Union Planters
Corporation Common Stock on the New York Stock Exchange on May 1,
1995.
(3) Determined pursuant to Rule 457(f).
DELAYING AMENDMENT
The Registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE> 3
UNION PLANTERS CORPORATION
CROSS REFERENCE OF ITEMS IN FORM S-4 TO PROSPECTUS
ITEMS IN PART I OF FORM S-4 PROSPECTUS CAPTION OR LOCATION
A. INFORMATION ABOUT THE TRANSACTION
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1. Forepart of Registration Statement
and Outside Front Cover Page of
Prospectus Facing Page, Cross Reference Sheet and Outside
Front Cover Page
2. Inside Front and Outside Back Cover
Pages of Prospectus Inside Front Cover and TABLE OF CONTENTS
3. Risk Factors, Ratio of Earnings
to Fixed Charges and Other
Information SUMMARY, THE MERGER and RECENT
DEVELOPMENTS
4. Terms of the Transaction SUMMARY and THE MERGER
5. Pro Forma Financial Information *
6. Material Contracts with the
Company Being Acquired *
7. Additional Information Required
for Reoffering by Persons and
Parties Deemed to be Underwriters THE MERGER
8. Interests of Named Experts and
Counsel EXPERTS and VALIDITY OF UPC COMMON STOCK
9. Disclosure of Commission Position
on Indemnification for Securities
Act Liabilities *
B. INFORMATION ABOUT THE REGISTRANT
10. Information with Respect to S-3
Registrants SUMMARY, THE MERGER, CERTAIN
REGULATORY CONSIDERATIONS,
DESCRIPTION OF THE UPC COMMON AND
PREFERRED STOCK AND INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
11. Incorporation of Certain
Information by Reference INCORPORATION OF CERTAIN DOCUMENTS
BY REFERENCE
12. Information with Respect to S-2
or S-3 Registrants *
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<PAGE> 4
ITEMS IN PART I OF FORM S-4 PROSPECTUS CAPTION OR LOCATION
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13. Incorporation of Certain
Information by Reference *
14. Information with Respect to
Registrants Other Than S-3 or
S-2 Registrants *
C. INFORMATION ABOUT THE COMPANY BEING ACQUIRED
15. Information with Respect to
S-3 Companies *
16. Information with Respect to S-2
or S-3 Companies *
17. Information with Respect to
Companies Other Than S-3 or
S-2 Companies SUMMARY, THE MERGER, PLANTERS BANK
& TRUST COMPANY, PLANTERS BANK &
TRUST COMPANY MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
AND PLANTERS BANK & TRUST COMPANY
CONSOLIDATED FINANCIAL STATEMENTS
(APPENDIX A)
D. VOTING AND MANAGEMENT INFORMATION
18. Information if Proxies, Consents or
Authorizations are to be Solicited INCORPORATION OF CERTAIN DOCUMENTS
BY REFERENCE, THE SPECIAL MEETING,
THE MERGER and EFFECT OF MERGER ON
RIGHTS OF STOCKHOLDERS
19. Information if Proxies, Consents
or Authorizations are not to be
Solicited or in an Exchange Offer *
</TABLE>
______________________
* Omitted because the answer is negative or the item is inapplicable.
<PAGE> 5
PLANTERS BANK & TRUST COMPANY
321 NORTH ROSSER
FORREST CITY, ARKANSAS 72335
May 11, 1995
TO THE STOCKHOLDERS OF PLANTERS BANK & TRUST COMPANY
You are cordially invited to attend a Special Meeting of Stockholders
of Planters Bank & Trust Company ("PBTC") to be held at the executive offices
of PBTC located at 321 North Rosser, Forrest City, Arkansas, at 10:00 a.m.
Central Time on Friday, June 16, 1995.
At the Special Meeting you will have the opportunity to consider and
vote on a proposal to approve an Agreement and Plan of Reorganization dated as
of February 10, 1995 (the "Reorganization Agreement"), along with the Merger
Agreement annexed thereto as Exhibit A, pursuant to which PBTC would be merged
with and into First Southern Bank ("FSB"), a wholly-owned subsidiary of Union
Planters Corporation ("UPC"), a bank holding company headquartered in Memphis,
Tennessee (the "Merger"). Although FSB would be the survivor of the Merger,
consummation of which would result in all of PBTC's banking offices becoming
branches of FSB, the present officers and employees of PBTC would continue to
serve PBTC's present customers in the same banking offices as before. The
Boards of Directors of PBTC, FSB and UPC have approved the Reorganization
Agreement and the Merger Agreement annexed thereto as Exhibit A and the Merger
contemplated thereby.
In the Merger, stockholders of PBTC would receive shares of Union
Planters Corporation common stock having a par value of $5.00 per share (the
"UPC Common Stock") in exchange for their shares of PBTC's common stock having
a par value of $25.00 per share (the "PBTC Common Stock"). The number of
shares of UPC Common Stock to be received is dependent upon the date of closing
of the Merger. Although there can be no assurance that closing can be effected
on July 31, 1995 as planned (or at all), should the Merger be closed on that
date, 14.43062 shares of UPC Common Stock would be issued in exchange for each
share of PBTC Common Stock which shall be outstanding immediately prior to the
effective time of the Merger. A PBTC stockholder's remaining fractional share
would be settled in cash. The method of determining the number of shares of
UPC Common Stock to be received as the consideration is described in the
accompanying Prospectus/Proxy Statement under the heading "THE MERGER--Terms of
the Merger" and in Section 3.1(e) of the Reorganization Agreement. The annexed
Notice of Special Meeting of Stockholders and combination Prospectus/Proxy
Statement explain the Merger, the consideration, the Reorganization Agreement
and the Merger Agreement annexed thereto as Exhibit A and provide specific
information relative to the Special Meeting. Please read these materials
carefully and thoughtfully consider the information contained in them. The
approvals of not only PBTC's stockholders but also of certain federal and state
governmental regulatory agencies are required to consummate the Merger as well
as the satisfaction of certain contractual conditions.
Whether or not you plan to attend the Special Meeting, you are urged
to complete, sign and promptly return the enclosed Proxy Appointment Card to
assure that your shares will be voted at the Special Meeting. For your
convenience, there is included with this material a postage-paid addressed
envelope for returning your proxy card. No additional postage is required if
mailed in the United States.
The Board of Directors of PBTC has considered a number of proposals to
sell PBTC and has determined that the proposal outlined in the Reorganization
Agreement is the best plan to maximize the interests of the stockholders of
PBTC. Accordingly the Board of Directors of PBTC recommends that you vote
"FOR" the proposal being considered.
Sincerely,
PLANTERS BANK & TRUST COMPANY
/s/ Frankie L. Pratt
--------------------
Frankie L. Pratt
President
PLEASE DO NOT SEND IN YOUR STOCK CERTIFICATES AT THIS TIME
<PAGE> 6
PLANTERS BANK & TRUST COMPANY
321 NORTH ROSSER
FORREST CITY, ARKANSAS 72335
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD JUNE 16, 1995
NOTICE IS HEREBY GIVEN that a Special Meeting of Stockholders of Planters Bank
& Trust Company ("PBTC") has been called by the Board of Directors of PBTC and
will be held at the executive offices of Planters Bank & Trust Company, 321
North Rosser, Forrest City, Arkansas, on Friday, June 16, 1995, at 10:00 a.m.
Central Time, for the following purposes:
1. To consider and vote upon a proposal to approve an Agreement and Plan of
Reorganization dated as of February 10, 1995 (the "Reorganization Agreement"),
together with the Merger Agreement annexed thereto as Exhibit A, by and between
PBTC, an Arkansas-chartered bank; Union Planters Corporation ("UPC"), a
Tennessee-chartered bank holding company headquartered in Memphis, Tennessee;
and First Southern Bank ("FSB"), an Arkansas-chartered bank which is a
wholly-owned subsidiary of UPC. The Reorganization Agreement provides for the
merger (the "Merger") of PBTC with and into FSB whereupon the stockholders of
PBTC would receive shares of Union Planters Corporation common stock having a
par value of $5.00 per share (the "UPC Common Stock") in exchange for their
shares of PBTC common stock having a par value of $25.00 per share (the "PBTC
Common Stock"). As a part of the proposal, the stockholders would also be
asked to approve the amendment of PBTC's Articles of Agreement and
Incorporation and other charter documents as may be required to effect the
Merger pursuant to Arkansas law. The number of shares of UPC Common Stock to
be received by the PBTC stockholders is dependent upon the date of closing of
the Merger. Although there can be no assurance that closing can be effected as
planned on July 31, 1995 (or at all), should the Merger be closed on that date,
14.43062 shares of UPC Common Stock would be issued in exchange for each share
of PBTC Common Stock outstanding immediately prior to the effective time of the
Merger. A PBTC stockholder's remaining fractional share would be settled in
cash. The method of determining the number of shares of UPC Common Stock to be
received as the consideration is described in the accompanying Prospectus/Proxy
Statement under the heading "THE MERGER--Terms of the Merger" and in Section
3.1(e) of the Reorganization Agreement. The Reorganization Agreement and the
Merger Agreement annexed thereto as Exhibit A and the Merger are more fully
described in the accompanying Prospectus/Proxy Statement; and
2. To transact such other business as may properly come before the Special
Meeting or any adjournments or postponements thereof. Management is not aware
of any other business to be transacted at the Special Meeting.
<PAGE> 7
STOCKHOLDERS OF PBTC HAVE THE RIGHT TO DISSENT FROM THE MERGER PURSUANT TO, AND
IN ACCORDANCE WITH, SECTION 23-32-506 OF THE ARKANSAS CODE ANNOTATED. COPIES
OF SAID SECTION OF THE ARKANSAS CODE ANNOTATED ACCOMPANY THIS NOTICE AS
APPENDIX C TO THE ANNEXED PROSPECTUS AND PROXY STATEMENT REFERRED TO THEREIN
FOR CONVENIENCE AS THE "PROSPECTUS."
Whether or not you plan to attend the Special Meeting, please sign the enclosed
proxy appointment card and return it at once in the stamped return envelope in
order to insure that your shares will be represented at the Special Meeting.
PLEASE DO NOT SEND IN ANY STOCK CERTIFICATES AT THIS TIME. If you attend in
person, your proxy appointment can be disregarded if you wish and you may vote
your own shares.
Only holders of PBTC Common Stock of record at the close of business on April
28, 1995, will be entitled to receive notice of, and to vote at the Special
Meeting of Stockholders and at any adjournments or postponements thereof.
By Order of the Board of Directors
[SIG]
Frankie L. Pratt
President
Forrest City, Arkansas
Dated: May 11, 1995
THE BOARD OF DIRECTORS OF PLANTERS BANK & TRUST COMPANY, BY UNANIMOUS VOTE,
RECOMMENDS THAT THE HOLDERS OF PLANTERS BANK & TRUST COMPANY COMMON STOCK VOTE
"FOR" APPROVAL OF THE REORGANIZATION AGREEMENT AND RELATED PROPOSALS.
<PAGE> 8
PROSPECTUS
UNION PLANTERS CORPORATION
353,193 SHARES OF COMMON STOCK
PROXY STATEMENT
PLANTERS BANK & TRUST COMPANY
SPECIAL MEETING TO BE HELD FRIDAY, JUNE 16, 1995
This Prospectus and Proxy Statement (hereinafter referred to for
convenience as the "Prospectus") relates to up to 353,193 shares of common
stock having a par value of $5.00 per share (the "UPC Common Stock") of Union
Planters Corporation ("UPC"), a Tennessee-chartered bank holding company which
is also registered as a savings and loan holding company, to be issued to
stockholders of Planters Bank & Trust Company ("PBTC"), an Arkansas-chartered
bank, in a merger (the "Merger") of PBTC with and into First Southern Bank
("FSB") pursuant to an Agreement and Plan of Reorganization dated as of
February 10, 1995, by and between PBTC, FSB and UPC (the "Reorganization
Agreement"), along with the Merger Agreement annexed thereto as Exhibit A. In
the Merger stockholders of PBTC would receive shares of UPC Common Stock in
exchange for their shares of PBTC's common stock having a par value of $25.00
per share (the "PBTC Common Stock"). The number of shares of UPC Common Stock
to be received by the PBTC stockholders is dependent upon the date of closing
of the Merger. Although there can be no assurance that the Merger can be
closed as planned on July 31, 1995 (or, for that matter, at all), should the
Merger be closed on that date, 14.43062 shares of UPC Common Stock would be
issued in exchange for each share of PBTC Common Stock outstanding immediately
prior to the effective time of the Merger. A PBTC stockholder's remaining
fractional share would be settled by a cash payment. The method of determining
the number of shares of UPC Common Stock to be received as the consideration is
described below under the heading "THE MERGER--Terms of the Merger" and in
Section 3.1(e) of the Reorganization Agreement, a copy of which is annexed as
Appendix B to this Prospectus.
The annexed Notice of Special Meeting of Stockholders and the
Prospectus explain the Merger, the Reorganization Agreement and the Merger
Agreement annexed thereto as Exhibit A as well as the related proposed
amendment of PBTC's Articles of Agreement and Incorporation (the "PBTC Charter
Amendment") required to consummate the Merger, and provide specific information
relative to the Special Meeting. Please read these materials carefully and
thoughtfully consider the information contained in them. The prior approvals
of not only PBTC's stockholders but also of certain federal and state
governmental regulatory agencies are required in order to consummate the Merger
in addition to the satisfaction of certain contractual conditions.
Shares of the UPC Common Stock are now, and the UPC Common Stock to be
issued in connection with the Merger will be, listed for trading on the New
York Stock Exchange ("NYSE") under the symbol "UPC." The last reported sale
price of UPC Common Stock on the NYSE on May 8, 1995, was $_________ per share.
This Prospectus also constitutes a proxy statement and is furnished to
holders of PBTC Common Stock in connection with the solicitation of proxies by
the PBTC Board of Directors (the "PBTC Board") for use at a Special Meeting of
PBTC Stockholders to be held at 10:00 a.m. Central Time on Friday, June 16,
1995, at the main offices of PBTC, 321 North Rosser, Forrest City, Arkansas
72335 and at any adjournments or postponements thereof (the "Special Meeting").
At the Special Meeting, holders of PBTC Common Stock of record as of the close
of business April 28, 1995, will consider and vote upon a proposal to approve
the Reorganization Agreement and the Merger Agreement annexed thereto as
Exhibit A as well as the proposed PBTC Charter Amendment
<PAGE> 9
incidental thereto. Upon consummation of the proposed Merger: (i) all
outstanding shares of PBTC Common Stock (with the exception of those shares
held by any PBTC stockholders with respect to which dissenters' rights shall
have been perfected in accordance with Arkansas law) would be converted
exclusively into the right to receive the "Consideration" to which the PBTC
stockholders are entitled as more particularly described in Section 3.1(e) of
the Reorganization Agreement, and (ii) PBTC would be merged with and into First
Southern Bank which would survive the Merger and continue to operate under the
name of First Southern Bank as a wholly-owned subsidiary of UPC.
All information contained in this Prospectus pertaining to UPC and its
subsidiaries, including FSB, has been supplied by UPC, and all information
pertaining to PBTC has been supplied by PBTC. This Prospectus and the
accompanying proxy appointment cards are first being mailed to stockholders of
PBTC on or about May 11, 1995.
THE SHARES OF UPC COMMON STOCK OFFERED HEREBY ARE NOT SAVINGS ACCOUNTS OR
DEPOSITS AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
SAVINGS ASSOCIATION INSURANCE FUND, THE BANK INSURANCE FUND OR ANY OTHER
GOVERNMENTAL AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS--PROXY STATEMENT IS MAY 11, 1995.
<PAGE> 10
AVAILABLE INFORMATION
UPC is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by UPC can be inspected and copied at
the public reference facilities maintained by the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
regional offices of the Commission located at Room 1228, 75 Park Place, New
York, New York 10007 and 500 West Madison Street, Chicago, Illinois 60661-2511.
Copies of such material can be obtained by mail from the Public Reference
Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. In addition, such reports, proxy statements and other
information concerning UPC can be inspected at the offices of the New York
Stock Exchange, 20 Broad Street, New York, New York 10005. UPC has filed with
the Commission a Registration Statement (No. 33-________) on Form S-4 (together
with any amendments thereto, the "Registration Statement") under the Securities
Act of 1933, as amended (the "Securities Act"), with respect to the shares of
UPC Common Stock to be issued pursuant to the Reorganization Agreement. This
Prospectus does not contain all of the information set forth in the
Registration Statement and the Exhibits thereto. Certain items have been
omitted as permitted by the rules and regulations of the Commission. For
further information regarding UPC and the UPC Common Stock offered by this
Prospectus, reference is made to the complete Registration Statement, including
all amendments thereto and the schedules and exhibits filed as a part thereof.
Statements contained herein concerning provisions of documents are necessarily
summaries of the documents and each statement is qualified in its entirety by
reference to the copy of the applicable document filed with the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by UPC with the Commission
(except as otherwise indicated, under Commission File Number 1-10160) pursuant
to the Exchange Act are hereby incorporated by reference in this Prospectus:
1. UPC's Annual Report on Form 10-K for the year ended
December 31, 1994;
2. UPC's Current Report on Form 8-K dated January 19, 1989,
filed on February 1, 1989 (Commission File Number 0-6919),
in connection with UPC's designation and authorization of its
Series A Preferred Stock;
3. UPC's Current Report on Form 8-K dated December 31, 1994, as
filed on January 13, 1995 and amended on January 31, 1995;
4. UPC's Current Report on Form 8-K dated April 27, 1995, as
filed on April 27, 1995; and
5. The description of the UPC Common Stock contained in UPC's
Registration Statement under Section 12(b) of the Exchange
Act and any amendment or report filed for the purpose of
updating such description;
ii
<PAGE> 11
UPC's Annual Report on Form 10-K for the year ended December 31, 1994,
incorporates by reference specific portions of UPC's Annual Report to
Shareholders for that year (UPC's "Annual Report to Shareholders" which is
Exhibit 13 to said Form 10-K) but does not incorporate other portions of the
Annual Report to Shareholders. The portion of the Annual Report to
Shareholders captioned "Letter to Shareholders" and other portions of the
Annual Report to Shareholders not specifically incorporated into the Annual
Report on Form 10-K are not incorporated herein and are not a part of the
Registration Statement.
All documents filed by UPC with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the shares of UPC
Common Stock offered hereby shall likewise be incorporated herein by reference
and shall become a part hereof from and after the time such documents are
filed. Any statement contained herein or in a document incorporated herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any other subsequently-filed
document which also is incorporated by reference herein modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
ON THE WRITTEN OR ORAL REQUEST OF EACH PERSON TO WHOM THIS PROSPECTUS
IS DELIVERED, UPC WILL PROVIDE, WITHOUT CHARGE, A COPY OF ANY OR ALL OF THE
DOCUMENTS INCORPORATED HEREIN BY REFERENCE (OTHER THAN EXHIBITS TO SUCH
DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED BY REFERENCE IN SUCH
DOCUMENTS). WRITTEN OR TELEPHONE REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED
TO E. JAMES HOUSE, JR., SECRETARY, UNION PLANTERS CORPORATION, P.O. BOX 387,
MEMPHIS, TENNESSEE 38147, (901) 383-6584.
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED HEREIN AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. THIS DOCUMENT DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY
ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT
AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER
OR SOLICITATION. NEITHER THE DELIVERY OF THIS DOCUMENT NOR ANY DISTRIBUTION OF
SECURITIES MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF UPC OR PBTC SINCE THE DATE
HEREOF OR THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
THE DATE HEREOF.
iii
<PAGE> 12
TABLE OF CONTENTS
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PAGE
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Available Information (ii)
Incorporation of Certain Documents by Reference (ii)
Summary 1
Parties to the Merger 1
Special Meeting of PBTC Stockholders 2
Votes Required; Record Date 3
Terms of the Merger 3
Effective Date 4
Reasons for the Merger; Recommendations of Boards of Directors 4
Conditions; Regulatory Approvals 4
Management after the Merger 5
Stockholders' Dissenters' Rights 5
Certain Federal Income Tax Consequences 5
Accounting Treatment 5
Market Prices of Common Stock 6
Selected Consolidated Financial Data and Recent Developments 7
The Special Meeting 13
Time and Place of Special Meeting; Solicitation of Proxies 13
Votes Required 14
Stockholders' Dissenters' Rights 15
Recommendation 16
The Merger 16
Background of and Reasons for the Merger 16
Terms of the Merger 19
Effective Date and Effective Time of the Merger 20
Surrender of Certificates 20
Conditions to Consummation of the Merger 21
Regulatory Approvals 23
Conduct of Business Pending the Merger 23
Payment of Dividends 24
Waiver and Amendment; Termination 24
Management after the Merger 25
PBTC Executive Compensation 27
Interests of Certain Persons in the Merger 28
Certain Federal Income Tax Consequences 28
Accounting Treatment 29
Expenses 29
Resales of UPC Common Stock 29
Certain Regulatory Considerations 30
</TABLE>
iv
<PAGE> 13
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PAGE
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Description of the UPC Common and Preferred Stock 31
The UPC Common Stock 31
The UPC Preferred Stock 32
Certain Provisions That May Have an Anti-Takeover Effect 33
Effect of Merger on Rights of Stockholders 35
Removal of Directors 35
Required Stockholder Votes 35
Election of Directors 35
Method of Casting Votes 36
Planters Bank & Trust Company 36
General 36
Lending Activities 37
Property 38
Competition 38
Legal Proceedings 38
Market Price of PBTC Common Stock 38
Certain Beneficial Holders of PBTC Common Stock 39
Holdings of PBTC Common Stock by PBTC Management 39
Planters Bank & Trust Company Management's Discussion and Analysis of Financial Condition
and Results of Operations 40
Validity of UPC Common Stock 50
Experts 50
Index to Appendices 51
</TABLE>
Appendix A-1 Planters Bank & Trust Company audited Consolidated
Financial Statements as of December 31, 1994 and for the
year then ended.
Appendix A-2 Planters Bank & Trust Company unaudited Consolidated
Financial Statements as of December 31, 1993 and for
the two-year period ended December 31, 1993.
Appendix B Agreement and Plan of Reorganization dated as of
February 10, 1995, along with the Merger Agreement
annexed as Exhibit A thereto.
Appendix C Arkansas Statutes Annotated, Section 23-32-506
concerning the rights.
of dissenting stockholders.
Appendix D Proposed CERTIFICATE OF AMENDMENT of Articles of
Agreement and Incorporation of PLANTERS BANK & TRUST
COMPANY
v
<PAGE> 14
SUMMARY
THE FOLLOWING SUMMARY IS NOT INTENDED TO BE A COMPLETE DESCRIPTION OF
ALL MATERIAL FACTS REGARDING UPC, PBTC AND THE MATTERS TO BE CONSIDERED AT THE
SPECIAL MEETING, AND IS QUALIFIED IN ALL RESPECTS BY THE INFORMATION APPEARING
ELSEWHERE OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS, THE APPENDICES
HERETO AND THE DOCUMENTS REFERRED TO HEREIN.
PARTIES TO THE MERGER
UPC. Union Planters Corporation ("UPC") is a multi-state bank
holding company and savings and loan holding company headquartered in Memphis,
Tennessee. At December 31, 1994, UPC had total consolidated assets of
approximately $10.0 billion, loans of approximately $5.9 billion, deposits of
approximately $8.4 billion and shareholders' equity of approximately $731
million. As of that date, UPC was the second-largest independent bank holding
company headquartered in Tennessee as measured by consolidated assets. In
recent years UPC's Management has emphasized asset quality and maintenance of
capital well in excess of regulatory minima. At December 31, 1994, UPC's ratio
of nonperforming loans to total loans was .32% and its ratio of nonperforming
assets to loans and foreclosed property was .42%. The ratio of UPC's allowance
for losses on loans to total loans at such date was 2.05% and the ratio of
UPC's allowance for losses on loans to nonperforming loans was 641%. Also at
such date, UPC's Tier 1 risk-based capital, total risk-based capital and
leverage ratios were 12.22%, 14.75% and 7.18%, respectively.
UPC conducts its business activities through its two principal bank
subsidiaries, the $2.0-billion Union Planters National Bank, founded in 1869
and headquartered in Memphis, Tennessee, and the $2.0-billion Sunburst Bank,
Mississippi, headquartered in Grenada, Mississippi; 30 other bank subsidiaries;
and three savings and loan subsidiaries located in Tennessee, Mississippi,
Arkansas, Louisiana, Alabama and Kentucky (collectively, the "Banking
Subsidiaries"). Through its Banking Subsidiaries, UPC provides a diversified
range of financial services in the communities in which they operate, including
consumer, commercial and corporate lending, retail banking and mortgage
banking. UPC also is engaged in mortgage servicing; investment management and
trust services; the issuance and servicing of credit and debit cards; and the
origination, packaging and securitization of the government-guaranteed portions
of Small Business Administration ("SBA") loans.
Through its Banking Subsidiaries, UPC operates approximately 375
banking offices. UPC's assets are allocable by state to its banking offices
approximately as follows: $5.9 billion in Tennessee, $2.5 billion in
Mississippi, $665 million in Arkansas, $499 million in Louisiana, $278 million
in Alabama and $109 million in Kentucky.
Acquisitions have been, and are expected to continue to be, an
important part of the expansion of UPC's business. The Corporation completed
four acquisitions in 1992, 12 in 1993 and 13 in 1994, adding approximately $1.6
billion in total assets in 1992, $1.3 billion in 1993 and $3.8 billion in 1994.
For a discussion of UPC's acquisition program and its management's philosophy
on that subject, see the caption "Acquisitions" (on pages 10 and 11) and Note 2
to UPC's audited Consolidated Financial Statements for the years ended December
31, 1994 and 1993 (on pages 43 through 47) which are included in UPC's Annual
Report to Shareholders which is Exhibit 13 to UPC's Annual Report on Form 10-K
for the year ended December 31, 1994, which Exhibit 13 is incorporated by
reference herein to the extent indicated. UPC expects to continue to take
advantage of the consolidation of the
<PAGE> 15
financial services industry by further developing its franchise through the
acquisition of financial institutions. Future acquisitions may entail the
payment by UPC of consideration in excess of the book value of the underlying
net assets acquired, may result in the issuance of additional shares of UPC
capital stock or the incurring of additional indebtedness by UPC, and could
have a dilutive effect on the earnings or book value per share of UPC. For
acquisitions which are currently pending, see "-- Recent Developments Affecting
UPC."
UPC controls risk through centralized loan review and audit functions
as well as close monitoring of the financial performance of each Banking
Subsidiary. UPC also implements its asset and liability management strategy on
a consolidated basis and effects all trades for the investment portfolios of
UPC's Banking Subsidiaries. UPC seeks to achieve economies in the Banking
Subsidiaries through consolidation of administrative and operational processes
and has substantially completed converting all of the Banking Subsidiaries to a
common data processing system. This system conversion should be completed by
the end of 1995 and should permit UPC to realize significant cost savings upon
full implementation.
Additional information about UPC is included in the documents
incorporated by reference in this Prospectus. See "INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE."
UPC's corporate office is located at 7130 Goodlett Farms Parkway,
Memphis, Tennessee 38018, and its telephone number is (901) 383-6000.
PBTC. Planters Bank & Trust Company is an Arkansas-chartered bank
headquartered in Forrest City, Arkansas. Its main office is located at 321
North Rosser in Forrest City, Arkansas. PBTC has two full-service branch
offices, one in DeValls Bluff, Arkansas, and one in Cotton Plant, Arkansas and
one drive-through facility in Forrest City. At December 31, 1994, PBTC had
total assets of $59.0 million, total deposits of $52.2 million, and total
stockholders' equity of $6.6 million. For the year ended December 31, 1994,
PBTC had net earnings of $404,000.
PBTC offers traditional banking services including commercial,
consumer, and real estate loans, deposit accounts, and personal and corporate
trust services. PBTC has approximately 43 full-time-equivalent employees.
PBTC has been in operation in Forrest City since 1921. It opened its
branches in DeValls Bluff and Cotton Plant in 1929. PBTC has one subsidiary,
Planters Investment Corporation, Inc. PBTC's telephone (main office) is (501)
633-2833.
FSB. First Southern Bank is an Arkansas-chartered bank headquartered
in Earle, Crittenden County, Arkansas. FSB, a wholly owned Banking Subsidiary
of UPC, has its main office at 801 Commerce Street, Earle, Arkansas 72331. In
the Merger PBTC would be merged with and into FSB which would survive the
Merger as the resulting bank (hereinafter, as the context requires, the
"Resulting Bank").
SPECIAL MEETING OF PBTC STOCKHOLDERS
A Special Meeting (the "Special Meeting") of the PBTC Stockholders
will be held on Friday, June 16, 1995, at 10:00 a.m. Central Time, at the
banking offices of PBTC located at 321 North Rosser, Forrest City, Arkansas
72335, to consider and vote upon a proposal to approve the
2
<PAGE> 16
Reorganization Agreement and the Merger Agreement annexed thereto as Exhibit A,
together with an amendment to the PBTC Charter which is required by law in
order to consummate the transactions contemplated by the Reorganization
Agreement. See "THE SPECIAL MEETING."
VOTES REQUIRED; RECORD DATE
Only holders of PBTC Common Stock of record at the close of business
on April 28, 1995 (the "Record Date") will be entitled to receive notice of,
and vote at the Special Meeting. The affirmative votes of the holders of at
least two-thirds (2/3) of the 24,000 shares of PBTC Common Stock outstanding on
the Record Date are required to approve the Reorganization Agreement, the
Merger Agreement annexed as Exhibit A thereto and the PBTC Charter Amendment.
The directors and executive officers of PBTC (the "Management Group")
held beneficially and of record, as of the Record Date, 1,434 shares or
approximately 5.98% of the outstanding shares of PBTC Common Stock which PBTC
Management is advised they intend to vote in favor of the proposed Merger.
PBTC has also been advised by Mr. Jackson T. Stephens and by the Trustees of
the W.R. Stephens Trust, respectively the record holders of 9,759 shares
(40.66%) and 7,132 shares (29.72%) of PBTC's outstanding shares that they
intend to vote all of their shares of PBTC Common Stock in favor of approval of
the Reorganization Agreement and the Merger Agreement annexed thereto as
Exhibit A and the PBTC Charter Amendment. Should they do so the requirement of
PBTC stockholder approval would be satisfied. See "THE SPECIAL MEETING."
TERMS OF THE MERGER
Upon consummation of the Merger, each share of PBTC Common Stock which
is outstanding immediately prior to the Effective Time of the Merger (except
for those shares with respect to which dissenters' rights shall have been
perfected in accordance with Arkansas law) will be converted exclusively into
the right to receive the Consideration stipulated in the Reorganization
Agreement. Section 3.1(e) of the Reorganization Agreement describes the method
of determining the amount of Consideration to be received by the PBTC
stockholders in exchange for their shares of PBTC Common Stock.
In the Merger, stockholders of PBTC would receive shares of UPC
Common Stock in exchange for their shares of PBTC Common Stock. The number of
shares of UPC Common Stock to be received is dependent upon the date of closing
of the Merger. Although there can be no assurance that closing can be effected
as planned on July 31, 1995 (or at all), should the Merger be closed on that
date, 14.43062 shares of UPC Common Stock would be issued in exchange for each
share of PBTC Common Stock outstanding immediately prior to the effective time
of the Merger. Each PBTC stockholder's remaining fractional share would be
settled in cash. See "THE MERGER -- Terms of the Merger."
The annexed Notice of Special Meeting of Stockholders and combination
Prospectus and Proxy Statement explain the Merger, the Reorganization Agreement
and the Merger Agreement annexed thereto as Exhibit A and provide specific
information relative to the Special Meeting. Please read these materials
carefully and thoughtfully consider the information contained in them. The
prior approvals of both PBTC's stockholders and of certain governmental
regulatory agencies are required in order to consummate the Merger as well as
the satisfaction of certain contractual conditions.
3
<PAGE> 17
EFFECTIVE DATE
The Merger will become effective at the time duly certified copies of
Articles of Merger, the completed and executed Merger Agreement and the PBTC
Charter Amendment required to effect the Merger are filed with the County Clerk
of St. Francis County, Arkansas, and similar documents approving the Merger
adopted by FSB are filed with the County Clerk of Crittenden County, Arkansas,
in accordance with Arkansas Law or on such later date and at such later time as
the Articles of Merger may specify (the "Effective Time of the Merger").
Assuming the timely receipt of all prior regulatory approvals, the expiration
of all statutory waiting periods and the satisfaction or waiver of all
contractual conditions to closing set forth in the Reorganization Agreement, it
is intended that the PBCT Charter Amendment, Articles of Merger and the Merger
Agreement will be filed so as to become effective on or about August 1, 1995.
The effective date of the Merger will be the day on which the Effective Time of
the Merger occurs (the "Effective Date of the Merger"). Only those holders of
record of PBTC Common Stock immediately prior to the Effective Time of the
Merger (the "PBTC Record Holders") will be entitled to receive the
Consideration for the Merger pursuant to the Reorganization Agreement and the
Merger Agreement annexed thereto as Exhibit A.
REASONS FOR THE MERGER; RECOMMENDATIONS OF BOARDS OF DIRECTORS
The Board of Directors of PBTC (the "PBTC Board") believes the Merger
is fair to, and in the best interests of PBTC and its stockholders and
unanimously recommends that PBTC's stockholders vote "FOR" approval of the
Reorganization Agreement and the Merger Agreement annexed thereto as Exhibit A
and the PBTC Charter Amendment. The PBTC Board, after consideration of a
number of alternatives available to PBTC and PBTC's stockholders, believes that
the Merger will enable the PBTC stockholders to participate in opportunities
for investment value and growth. The Merger and the resulting affiliation with
UPC's banking network would give PBTC's banking offices access to a
substantially greater base of capital and enhanced regulatory and operating
expertise and would permit PBTC's banking offices to expand services beyond
those presently provided. Moreover, affiliation with UPC will allow the
banking offices presently operated by PBTC to compete more effectively in the
Eastern Arkansas marketplace and to enjoy certain economies of scale in their
banking operations. See "THE MERGER--Background of and Reasons for the
Merger."
CONDITIONS; REGULATORY APPROVALS
Consummation of the Merger is subject to various conditions, including
receipt of the approval of the PBTC stockholders, receipt of the required prior
regulatory approvals and satisfaction of certain customary closing conditions.
The regulatory approvals and consents necessary to consummate the
transactions contemplated by the Reorganization Agreement include the prior
approval of the Federal Deposit Insurance Corporation (the "FDIC"); the
Arkansas State Bank Commissioner and the Arkansas State Banking Board (the
Commissioner and Board being hereinafter referred to collectively as the
"Arkansas Department"). Applications for such approvals have been submitted to
each of the respective regulatory agencies but as of the date of this
Prospectus no approval has been received from either the Arkansas Department or
the FDIC for the parties to consummate the Merger. There can be no assurance
as to when or if UPC will receive the necessary regulatory approvals. See "THE
MERGER--Conditions to Consummation of the Merger," "--Regulatory Approvals" and
"--Conduct of Business Pending the Merger" and "CERTAIN REGULATORY
CONSIDERATIONS."
4
<PAGE> 18
MANAGEMENT AFTER THE MERGER
At the Effective Time of the Merger, the persons who are serving
immediately prior thereto as officers of both PBTC and First Southern Bank
(into which PBTC would be merged) shall become the officers of FSB as the bank
resulting from and surviving the Merger and will hold office as provided in the
Articles of Agreement and Incorporation and Bylaws of FSB unless and until
their successors shall have been duly elected or appointed and qualified.
Certain directors of the two merging banks would continue as directors of the
Resulting Bank. See "THE MERGER--Management After the Merger."
STOCKHOLDERS' DISSENTERS' RIGHTS
Any stockholder of PBTC entitled to vote on the proposed
Reorganization Agreement and Merger Agreement annexed thereto as Exhibit A and
the PBTC Charter Amendment incidental thereto (collectively, the "Proposal")
has the right to receive in cash, the fair market value of his or her shares
of PBTC Common Stock upon compliance with Arkansas Code Annotated, Section
23-32-506 (the "Statute") a copy of which is annexed to this Prospectus as
Appendix C. Stockholders wishing to dissent from the Reorganization Agreement
are urged to read carefully "THE SPECIAL MEETING--Stockholders' Dissenters'
Rights" and Appendix C and should consult with their own legal advisors.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
It is intended for federal income tax purposes that the Merger will be
treated as a "reorganization" within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended, (the "Code") and that accordingly,
for federal income tax purposes, PBTC stockholders will realize and recognize
gain or loss (if any) only to the extent of any cash received as consideration
for their PBTC Common Stock. PBTC stockholders may recognize gain or loss
by reason of receiving cash in lieu of fractional shares or as a result of the
exercise of Dissenters' Rights. See "THE MERGER--Certain Federal Income Tax
Consequences."
ACCOUNTING TREATMENT
The Merger is intended to be accounted for as a "pooling of interests"
under generally accepted accounting principles ("GAAP") as described in
Accounting Principles Board Opinion No. 16 and the interpretations thereof.
See "THE MERGER--Accounting Treatment."
5
<PAGE> 19
MARKET PRICES OF COMMON STOCK
UPC Common Stock. The UPC Common Stock is listed and traded on the New
York Stock Exchange (symbol: UPC). The following table sets forth for the
periods indicated the high and low closing sale prices of the UPC Common Stock
on the New York Stock Exchange and the cash dividends declared per share for
the periods indicated:
<TABLE>
<CAPTION>
CASH
PRICE RANGE DIVIDENDS
-------------------- DECLARED
HIGH LOW PER SHARE
---- --- ---------
<S> <C> <C> <C>
1995
First Quarter $24.50 $20.88 $.23
Second Quarter through
May 8, 1995 ----- ----- .25
----
Total $.48
====
1994
First Quarter $26.25 $23.13 $.21
Second Quarter 28.75 24.75 .21
Third Quarter 26.00 23.50 .23
Fourth Quarter 24.50 19.63 .23
---
Total $.88
====
1993
First Quarter $29.13 $22.50 $.18
Second Quarter 29.25 22.63 .18
Third Quarter 30.00 25.00 .18
Fourth Quarter 28.75 23.63 .18
----
Total $.72
====
1992
First Quarter $15.50 $13.75 $.15
Second Quarter 20.13 14.63 .15
Third Quarter 20.75 17.50 .15
Fourth Quarter 24.75 17.75 .15
----
Total $.60
====
</TABLE>
The last reported sale price of UPC Common Stock on the NYSE as of May
8, 1995, which was the last practicable date prior to the mailing of this
Prospectus, was $_______ per share.
PBTC Common Stock. The PBTC Common Stock is not listed for trading on
a national securities exchange or otherwise publicly traded in any established
securities market. PBTC is not aware of any active market or trading in the
shares of PBTC Common Stock. See "PLANTERS BANK & TRUST COMPANY -- Market
Price of PBTC Common Stock."
6
<PAGE> 20
SELECTED CONSOLIDATED FINANCIAL DATA AND RECENT DEVELOPMENTS
Selected Consolidated Financial Data. The tables on pages 8, 9 and 10
present for UPC and PBTC on an historical basis, selected unaudited
consolidated financial data for the five years ended December 31, 1994. The
information for UPC has been derived from the consolidated financial statements
of UPC, including the consolidated financial statements of UPC incorporated in
this Prospectus by reference to Exhibit 13 to UPC's 1994 Annual Report on Form
10-K, dated December 31, 1994, and should be read in conjunction therewith and
with the notes thereto. See "INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE."
The information for PBTC has been derived from consolidated financial
statements, including the consolidated financial statements of PBTC appearing
in Appendices A-1 and A-2 to this Prospectus. Historical results are not
necessarily indicative of results to be expected for any future period. In the
opinion of the managements of the respective companies, all adjustments
necessary to arrive at a fair statement of results of operations of UPC and
PBTC, have been included.
Recent Developments. Certain unaudited consolidated financial
information concerning UPC and PBTC for the quarter ended March 31, 1995, is
presented on pages 11 and 12 and certain information concerning UPC's Pending
Acquisitions is presented on page 13 below.
7
<PAGE> 21
UPC SELECTED CONSOLIDATED FINANCIAL DATA
<TABLE>
<CAPTION>
Years Ended December 31, (1)
-------------------------------------------------------------------------
1994 1993 1992 1991 1990
----------- ---------- ---------- ---------- ----------
(Dollars in thousands, except per share data)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
Net interest income $ 388,278 $ 343,710 $ 281,148 $ 233,790 $ 206,529
Provision for losses on loans 3,636 16,558 27,182 34,203 26,304
Investment securities gains (losses) (20,298) 4,495 14,019 2,624 83
Other noninterest income 113,860 115,430 98,590 90,697 92,076
Noninterest expense 398,835 319,681 279,464 238,475 231,733
----------- ---------- ---------- ---------- ----------
Earnings before income taxes,
extraordinary item, and accounting changes 79,369 127,396 87,111 54,433 40,651
Applicable income taxes 20,761 37,420 23,861 11,537 5,408
----------- ---------- ---------- ---------- ----------
Earnings before extraordinary item and
accounting changes 58,608 89,976 63,250 42,896 35,243
Extraordinary item-defeasance of debt, net of taxes - (3,206) - - -
Accounting changes, net of taxes - 5,782 - - -
----------- ---------- ---------- ---------- ----------
Net earnings $ 58,608 $ 92,552 $ 63,250 $ 42,896 $ 35,243
=========== ========== ========== ========== ==========
PER COMMON SHARE DATA (2)
Primary
Earnings before extraordinary item and
accounting changes $ 1.25 $ 2.31 $ 1.79 $ 1.32 $ 1.03
Extraordinary item-defeasance of debt, net of taxes - (.09) - - -
Accounting changes, net of taxes - .16 - - -
Net earnings 1.25 2.38 1.79 1.32 1.03
Fully diluted
Earnings before extraordinary item and
accounting changes 1.25 1.32 1.03
Extraordinary item-defeasance of debt, net of taxes - (.08) - - -
Accounting changes, net of taxes - .15 - - -
Net earnings 1.25 2.30 1.77 1.32 1.03
Cash dividends .88 .72 .60 .48 .48
Book value 16.01 16.29 14.02 12.77 11.77
BALANCE SHEET DATA (AT PERIOD END)
Total assets $10,015,069 $9,029,893 $7,493,004 $5,928,496 $6,095,531
Loans, net of unearned income 5,949,128 4,653,368 3,585,769 3,132,924 3,376,435
Allowance for losses on loans 122,089 114,353 89,827 67,989 67,505
Investment securities 2,962,144 3,295,644 2,793,950 1,777,754 1,773,508
Deposits 8,417,842 7,671,621 6,441,991 5,145,181 5,182,379
Short-term borrowings 415,171 275,537 321,976 222,510 362,364
Long-term debt (3)
Parent company 114,790 114,729 74,292 38,163 44,662
Subsidiary banks 226,161 195,442 21,756 10,083 4,469
Total shareholders' equity 730,707 682,002 529,496 425,970 383,349
Average assets 10,025,383 8,857,216 6,934,718 5,928,927 6,096,808
Average shareholders' equity 778,232 639,874 494,529 398,651 386,800
Average shares outstanding (in thousands)
Primary 40,055 35,311 31,910 31,752 33,738
Fully diluted 40,397 39,541 34,754 32,105 34,078
</TABLE>
8
<PAGE> 22
UPC SELECTED CONSOLIDATED FINANCIAL DATA (CONTINUED)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31, (1)
-------------------------------------------------------------------------
1994 1993 1992 1991 1990
----------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
PROFITABILITY AND CAPITAL RATIOS
Return on average assets .58% 1.04% .91% .72% .58%
Return on average common equity 7.40 15.55 13.48 10.80 9.12
Net interest income (taxable-equivalent) to
average earning assets (4) 4.39 4.44 4.62 4.54 4.02
Loans/deposits 70.67 60.66 55.66 60.89 65.15
Common and preferred dividend payout ratio 64.68 31.81 35.72 35.66 43.08
Equity/assets (period end) 7.30 7.55 7.07 7.19 6.29
Average shareholders' equity/average total assets 7.76 7.22 7.13 6.72 6.34
Leverage ratio (5) 7.18 7.23 7.11 7.10 6.18
Tier 1 capital to risk-weighted assets (5) 12.22 13.58 13.35 11.91 9.98
Total capital to risk-weighted assets (5) 14.75 16.40 15.44 14.13 12.09
ASSET QUALITY RATIOS
Allowance/period end loans 2.05 2.46 2.51 2.17 2.00
Nonperforming loans/total loans .32 .59 1.32 1.09 1.07
Allowance/nonperforming loans 641 414 190 200 187
Nonperforming assets/loans and foreclosed properties .42 .78 1.69 1.74 1.81
Provision/average loans .07 .37 .77 1.04 .78
Net charge-offs/average loans .09 .30 .60 1.02 .85
- ----------------------
</TABLE>
(1) Reference is made to "Basis of Presentation" in Note 1 to the consolidated
financial statements.
(2) Share and per share amounts have been retroactively restated for material
acquisitions accounted for as poolings of interests.
(3) Long-term debt includes subordinated notes and debentures, obligations
under capital leases, mortgage indebtedness, and notes payable with
maturities greater than one year. Subsidiary banks' long-term debt is
primarily FHLB advances.
(4) Calculation does not include the impact of the unrealized gain or loss on
available for sale investment securities.
(5) The risk-based capital ratios are based upon capital guidelines prescribed
by federal bank regulatory authorities. Under those guidelines, the
required minimum Tier 1 and Total Capital to risk-weighted assets ratios
are 4% and 8%, respectively. The required minimum leverage ratio of Tier
1 capital to total adjusted assets is 3% to 5% (5% for bank holding
companies effecting acquisitions).
9
<PAGE> 23
PBTC SELECTED CONSOLIDATED FINANCIAL DATA
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
----------------------------------------------------------------------------
1994 1993 1992 1991 1990
---- ---- ---- ---- ----
(Dollars in thousands, except per share data)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
Net interest income $ 2,171 $ 2,002 $ 2,040 $ 2,124 $ 2,343
Provision for loan losses - - 34 70 160
Noninterest income 521 560 741 617 523
Noninterest expense 2,186 2,038 2,171 2,081 2,040
------- -------- ------- ------- -------
Earnings before income taxes 506 524 576 590 666
Income taxes 102 150 189 189 192
------- -------- ------- ------- -------
Net earnings $ 404 $ 374 $ 387 $ 401 $ 474
======= ======== ======= ======= =======
PER COMMON SHARE DATA
Net earnings $ 16.83 $ 15.58 $ 16.13 $ 16.71 $ 19.75
Cash dividends - 2.25 2.25 2.25 2.25
Book value 277.04 278.33 265.00 251.13 236.67
BALANCE SHEET DATA (AT PERIOD END)
Total assets $59,046 $ 57,383 $55,611 $55,345 $53,015
Loans, net of unearned interest 25,971 25,727 34,336 35,355 31,779
Allowance for loan losses 486 473 473 526 494
Investment securities 21,067 21,038 12,154 8,889 6,261
Deposits 52,189 50,350 48,942 48,940 46,643
Total stockholders' equity 6,649 6,680 6,360 6,027 5,680
Average assets 57,443 55,548 55,984 53,327 51,451
Average stockholders' equity 6,707 6,531 6,227 5,797 5,447
Average shares outstanding 24,000 24,000 24,000 24,000 24,000
PROFITABILITY AND CAPITAL RATIOS
Return on average assets .70% .67% .69% .75% .92%
Return on average stockholders'
equity 6.02 5.73 6.21 6.92 8.70
Net yield on interest earning
assets 4.11 3.95 4.03 4.35 5.09
Loans/deposits 49.76 51.10 70.16 72.24 68.13
Common dividend payout ratio - 14.44 13.95 13.47 11.39
Equity/assets (period end) 11.26 11.64 11.44 10.89 10.71
Average stockholders'
equity/average total assets 11.68 11.76 11.12 10.87 10.59
Leverage ratio(1) 12.33 12.03 11.42 10.89 10.71
Tier 1 capital to risk-weighted
assets(1) 21.19 20.41 16.85 14.82 15.91
Total capital to risk-weighted
assets(1) 22.44 21.67 18.10 16.07 17.15
ASSET QUALITY RATIOS
Allowance/period end loans 1.87 1.84 1.38 1.49 1.55
Nonperforming loans/loans 2.29 2.54 3.10 1.81 1.01
Allowance/nonperforming loans 81.54 72.43 44.45 82.70 154.38
Nonperforming assets/loans and
foreclosed property(2) 2.52 3.02 4.24 3.13 3.98
Provision/average loans - - .11 .20 .47
Net charge-offs
(recoveries)/average loans (.05) - .29 .11 .59
</TABLE>
__________________
(1) The risk-based capital ratios are based upon capital guidelines
presented by federal regulatory authorities. Under those guidelines,
the required minimum Tier 1 and Total capital to risk-weighted assets
are 4% and 8%, respectively. The required minimum leverage ratio of
Tier 1 capital to total adjusted assets is 3% to 5%.
(2) Nonperforming assets include nonaccrual loans plus foreclosed assets.
10
<PAGE> 24
Recent Developments
1995 First Quarter UPC Operating Results. The following table presents
certain information for the three months ended March 31, 1995 and 1994.
Reference is made to UPC's press release dated April 27, 1995, which is
included in UPC's Current Report on Form 8-K dated April 27, 1995. For
additional information, see "Incorporation of Certain Documents by Reference."
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31, (1)
----------------------------------------------
1995 1994
---------- ----------
(Dollars in thousands, except per share data)
<S> <C> <C>
INCOME STATEMENT DATA
Net interest income $ 98,551 $ 91,464
Provision for losses on loans 1,686 815
Investment securities gains (losses) (21) 105
Other noninterest income 34,232 28,314
Noninterest expense 83,111 82,727
Earnings before income taxes 47,965 36,341
Applicable income taxes 14,950 10,954
Net earnings 33,015 25,387
PER COMMON SHARE DATA
Net earnings
- primary $ .77 $ .58
- fully diluted .74 .56
Cash dividends .23 .21
Book value 17.09 16.56
PROFITABILITY RATIOS
Return on average assets 1.36% 1.04%
Return on average common equity 18.59 14.21
Net interest income as a percentage of
average earning assets (taxable-equivalent basis) (3) 4.59 4.31
ASSET QUALITY DATA
Allowance for losses on loans $ 122,905 $ 124,688
Nonperforming loans 22,873 29,881
Nonperforming assets 28,599 40,115
Loans 90 days or more past due 7,685 8,434
Allowance for losses on loans to loans 2.05% 2.44%
Nonperforming loans to loans .38 .58
Nonperforming assets to loans and foreclosed properties .48 .78
Allowance/nonperforming loans 537.34 417.28
BALANCE SHEET DATA (AT PERIOD END)
Total Assets $9,741,991 $9,899,677
Loans, net of unearned income 5,995,257 5,108,678
Investment securities
Available for sale (Amortized cost: $1,701,575 and $2,418,402) 1,689,739 2,418,392
Held to maturity (Fair value: $1,028,764 and $1,085,340) 1,022,067 1,183,117
Total Deposits 8,218,025 8,424,946
Long-term debt (2) 422,469 337,083
Total shareholders' equity 777,066 764,104
CAPITAL RATIOS
Equity/assets 7.98% 7.72%
Leverage (3) 7.62 7.45
- -----------------------
</TABLE>
(1) Interim period ratios are annualized.
(2) Includes subsidiary banks' long-term debt (primarily Federal Home Loan Bank
advances) of $305.9 million and $215.8 million at March 31, 1995 and 1994,
respectively.
(3) Excludes the impact of the fair value adjustment for available for sale
securities.
11
<PAGE> 25
1995 First Quarter PBTC Financial Highlights. The following table
presents certain information for the three months ended March 31, 1995 and
1994.
<TABLE>
<CAPTION>
Three Months Ended
March 31,
------------------------
1995 1994
---- ----
(Dollars in thousands,
except per share data)
<S> <C> <C>
INCOME STATEMENT DATA
Net interest income $ 592 $ 519
Provision for loan losses - -
Noninterest income 159 159
Noninterest expense 574 519
------- -------
Earnings before income taxes 177 159
Income taxes 41 31
------- -------
Net earnings $ 136 $ 128
======= =======
PER COMMON SHARE DATA
Net earnings $ 5.67 $ 5.33
Cash dividends - -
Book value 289.25 278.71
BALANCE SHEET DATA (AT PERIOD END)
Total assets $59,623 $58,446
Loans, net of unearned interest 24,793 23,827
Allowance for loan losses 506 478
Investment securities 19,180 23,479
Deposits 52,339 51,363
Total stockholders' equity 6,942 6,689
Average assets 59,077 59,067
Average stockholders' equity 6,747 6,720
Average shares outstanding 24,000 24,000
Nonperforming loans 102 675
Nonperforming assets(2) 160 804
PROFITABILITY AND CAPITAL RATIOS
Return on average assets(1) 0.92% 0.87%
Return on average equity(1) 8.06 7.62
Net yield on interest earning assets(1) 4.46 3.85
Loans/deposits 47.37 46.39
Equity/assets (period end) 11.64 11.44
Average stockholders' equity/average total assets 11.42 11.38
ASSET QUALITY RATIOS
Allowance/period end loans 2.04 2.01
Nonperforming loans/loans .41 2.83
Nonperforming assets/loans and foreclosed property(2) .64 3.36
Allowance/nonperforming loans 496.08 70.81
</TABLE>
(1) Interim period ratios are annualized.
(2) Nonperforming assets include nonaccrual loans plus foreclosed assets.
12
<PAGE> 26
UPC's Pending Acquisitions. Consistent with UPC's acquisition strategy, UPC
has entered into definitive agreements to acquire the following financial
institutions in addition to PBTC (collectively, the "Pending Acquisitions")
which management considers probable of consummation and which are expected to
be closed in the third quarter of 1995:
<TABLE>
<CAPTION>
CONSIDERATION
--------------------------------------------------------------
APPROXIMATE
INSTITUTION ASSET SIZE VALUE TYPE
- ----------- -------------- -------------- ----
(In millions)
<S> <C> <C> <C>
First State Bancorporation, Inc.
and its subsidiary
First Exchange Bank
Tiptonville, Tennessee $110 $12.4 UPC Series E
Preferred Stock
First Bancshares of Eastern Arkansas, Inc.
and its subsidiary,
First National Bank of West Memphis
West Memphis, Arkansas 57 9.4 Cash
First Bancshares of Northeast Arkansas, Inc.
and its subsidiary
First National Bank of Osceola
Osceola, Arkansas 65 9.3 Cash
---- -----
Totals $232 $31.1
==== =====
</TABLE>
THE SPECIAL MEETING
TIME AND PLACE OF SPECIAL MEETING; SOLICITATION OF PROXIES
Each copy of this Prospectus mailed to holders of record of PBTC
Common Stock is accompanied by a proxy appointment card furnished in connection
with the PBTC Board's solicitation of proxies for use at the Special Meeting
and at any adjournments or postponements thereof. The Special Meeting is
scheduled to be held at 10:00 a.m. Central Time on Friday, June 16, 1995, at
PBTC's main office located at 321 North Rosser, Forrest City, Arkansas 72335.
Only holders of record of PBTC Common Stock at the close of business on April
28, 1995, are entitled to receive notice of, and to vote at, the Special
Meeting. At the Special Meeting, PBTC stockholders will consider and vote upon
a proposal (i) to approve the Reorganization Agreement and the Merger Agreement
annexed thereto as Exhibit A and (ii) to approve a PBTC Charter Amendment
required in order to consummate the transactions contemplated by the
Reorganization Agreement (both of which items constitute parts of the same
proposal -- referred to hereafter as the "Reorganization Proposal"). The
stockholders would also act upon such other matters as may properly be brought
before the Special Meeting or any adjournments or postponements thereof.
Management is not aware of any matters to be acted upon at the Special Meeting
other than the Reorganization Proposal.
13
<PAGE> 27
HOLDERS OF PBTC COMMON STOCK ARE REQUESTED TO COMPLETE, DATE AND SIGN
THE ACCOMPANYING PROXY APPOINTMENT CARD AND RETURN IT PROMPTLY TO PBTC IN THE
ENCLOSED, POSTAGE-PAID ENVELOPE. FAILURE TO RETURN YOUR PROPERLY EXECUTED
PROXY APPOINTMENT CARD OR TO VOTE AT THE SPECIAL MEETING WILL HAVE THE SAME
EFFECT AS A VOTE AGAINST THE REORGANIZATION AGREEMENT AND THE MERGER AGREEMENT
ANNEXED THERETO AS EXHIBIT A (BUT WILL NOT BE SUFFICIENT, WITHOUT FURTHER
ACTION, TO PERFECT DISSENTERS' RIGHTS). PBTC STOCKHOLDERS SHOULD NOT FORWARD
ANY STOCK CERTIFICATES WITH THEIR PROXY APPOINTMENT CARDS.
Any holder of PBTC Common Stock who has delivered a proxy appointment
may revoke it at any time before it is voted by attending the Special Meeting
and voting in person at the Special Meeting or by giving notice of revocation
in writing or submitting a signed proxy appointment bearing a later date to
Planters Bank & Trust Company, 321 North Rosser, Forrest City, Arkansas 72335,
Attention: Corporate Secretary, provided such notice or proxy appointment is
actually received by PBTC before the vote of stockholders has been taken. A
proxy appointment will not be revoked by the death or supervening incapacity of
the stockholder executing the proxy appointment unless, before the shares are
voted, notice of such death or incapacity is filed with the Corporate Secretary
or other person responsible for tabulating the votes on behalf of PBTC. The
shares of PBTC Common Stock represented by properly executed proxy appointments
received will be voted "FOR" (or "AGAINST," as indicated) approval of the
Reorganization Agreement and the Merger Agreement annexed thereto as Exhibit A
and the PBTC Charter Amendment. If any other matters are properly presented at
the Special Meeting for consideration, the persons named in the PBTC proxy
appointment card enclosed herewith will have discretionary authority to vote on
such matters in accordance with their best judgment; provided, however, that
such discretionary authority (i) will only be exercised to the extent
permissible under applicable federal or state securities law and (ii) will not
extend to any motion to adjourn the Special Meeting made by PBTC for the
purpose of soliciting additional proxy appointments. PBTC is unaware of any
matter to be presented at the Special Meeting other than the proposal to
approve the Reorganization Proposal.
The cost of soliciting proxies from holders of PBTC Common Stock will
be borne by PBTC. Such solicitation will be made by mail but also may be made
by telephone or in person by the directors, officers and employees of PBTC (who
will receive no additional compensation for doing so).
VOTES REQUIRED
The affirmative votes of the holders of at least two-thirds (2/3) of
the outstanding shares of PBTC Common Stock entitled to vote at the Special
Meeting are required in order to approve the Reorganization Proposal.
Therefore, a failure to return a properly executed proxy appointment card or
alternatively to vote in person at the Special Meeting will have the same
effect as a vote against the Reorganization Proposal (but will not be legally
sufficient without further action by the PBTC stockholder to perfect his or her
dissenters' rights). As of the Record Date, there were 24,000 shares of PBTC
Common Stock outstanding and entitled to vote at the Special Meeting, with each
share entitled to one vote.
The directors and executive officers of PBTC (the "Management Group")
held beneficially and of record as of the Record Date 1,434 shares or
approximately 5.98% of the outstanding shares of PBTC Common Stock. PBTC has
been advised by the members of the Management Group that they intend to vote
their shares FOR the Reorganization Proposal. PBTC Management has also been
advised by Mr. Jackson T. Stephens and by the Trustees of the W.R. Stephens
Trust, respectively the record holders or beneficial owners of 9,759 shares
(40.66%) and 7,132 shares (29.72%) of PBTC's outstanding shares that these two
stockholders intend to vote, or cause their shares to be voted in favor
14
<PAGE> 28
of the Reorganization Proposal. Should both do so the requirement of
stockholder approval would be satisfied. See "THE SPECIAL MEETING."
STOCKHOLDERS' DISSENTERS' RIGHTS
Any stockholder of PBTC entitled to vote on the Reorganization
Proposal has the right to receive in cash, the fair market value of his or her
shares of PBTC Common Stock upon compliance with Arkansas Code of 1987
Annotated, Section 23-32-506 (the "Statute") a copy of which is annexed to this
Prospectus as Appendix C. A stockholder may not dissent as to less than all of
the shares which he or she beneficially owns. A nominee or fiduciary may not
dissent on behalf of a beneficial owner as to less than all of the shares of
such beneficial owner held of record by such nominee or fiduciary. A
beneficial owner asserting dissenters' rights to shares held on his or her
behalf must notify PBTC in writing of the name and address of the record holder
of the shares, if known to him or her.
Any PBTC stockholder may enforce his or her dissenters' rights either
(i) by voting against the Merger Agreement (either personally or by proxy) or
(ii) by giving notice in writing (the "Objection Notice") to the Corporate
Secretary of PBTC at, or prior to the Special Meeting of stockholders approving
the Merger Agreement that he or she dissents from the Merger. Within 20 days
after the date on which the stockholders' meeting authorizing the Merger was
concluded, the dissenting stockholder must deliver written demand for payment
(the "Demand Letter") to PBTC, which Demand Letter must state the number and
the class of shares owned by the dissenting stockholder. Any dissenting
stockholder failing to make the demand shall be bound by the terms of the
Merger. Consequently, any PBTC stockholder desiring to exercise his or her
dissenters' rights and rights to payment for his or her shares is urged to
consult his or her legal advisers before attempting to exercise such rights.
If the Reorganization Proposal should be approved by the PBTC
stockholders and the Merger should be consummated, each PBTC stockholder who
voted against the Merger or who properly filed an Objection Notice and who
timely delivered a Demand Letter to PBTC will be notified within ten days after
consummation of the Merger by FSB (as the Resulting Bank) that the Merger was
consummated and offering to pay the fair market value of the dissenting
stockholder's shares. FSB as the Resulting Bank shall determine the fair
market value pursuant to Section 23-32-506(a)(3) of the Statute.
Any dissenting stockholder may accept the amount offered by the
Resulting Bank, in lieu of pursuing the appraisal remedy described below, by
delivering to the Resulting Bank, within 30 days after the date on which the
stockholders meeting authorizing the Merger was concluded, written acceptance
of the Resulting Bank's offer.
If, within the 30-day period following the date on which the
stockholders meeting authorizing the Merger was concluded, the dissenting
stockholder shall not have accepted the Resulting Bank's offer, the value of the
shares held by such dissenting stockholder shall be determined as of the date on
which the stockholders meeting authorizing the Merger was concluded by three
appraisers. One appraiser shall be selected by the dissenting stockholders by
vote of a majority of the aggregate number of dissenting shares held by the
dissenting stockholders and the second appraiser shall be selected by the
Resulting Bank. The third appraiser shall be chosen by the other two so chosen.
The expenses of the appraisers shall be borne by and among the parties as set
forth in Section 23-32-506(c) of the Statute.
The valuation agreed to by any two of the three appraisers shall be
the valuation of the dissenting shares. However, if the value so fixed shall
be unsatisfactory to any dissenting stockholder who has properly requested
payment, that stockholder may, within five days after being notified of the
15
<PAGE> 29
appraised value, appeal to the Arkansas Bank Commissioner, who shall cause a
final and binding reappraisal to be made.
If within 90 days after the date on which the stockholders meeting
authorizing the Merger was concluded, one of the appraisers should not have
been selected for any reason, or if the appraisers should have failed to
determine the value of the shares, the Bank Commissioner shall, upon written
request of any interested party made within five days after the expiration of
the 90-day period, cause an appraisal to be made which shall be final and
binding upon all parties. The expenses of the Bank Commissioner in making an
appraisal or reappraisal shall be borne by and among the parties as set forth
in Section 23-32-506(d) of the Statute. If no written request should be served
upon the Bank Commissioner within five days of the expiration of the 90-day
period, then all dissenting stockholders who shall have failed to accept the
offer of the Resulting Bank within the 30-day period shall be bound by the
terms of the Merger.
The foregoing summary of the applicable provisions of Section
23-32-506 of the Statute is not intended to be a complete statement of such
provisions, and is qualified in its entirety by reference to such Section, a
copy of which is annexed to this Prospectus as Appendix C. FAILURE TO COMPLY
WITH THESE PROCEDURES WILL CAUSE THE PBTC STOCKHOLDER TO LOSE HIS OR HER
DISSENTERS' RIGHTS TO RECEIVE CASH PAYMENT FOR THE SHARES. CONSEQUENTLY, ANY
PBTC STOCKHOLDER WHO DESIRES TO EXERCISE HIS OR HER RIGHTS TO PAYMENT FOR HIS
OR HER SHARES IS URGED TO CONSULT HIS OR HER LEGAL ADVISER BEFORE ATTEMPTING TO
EXERCISE SUCH RIGHTS.
For a discussion of certain federal income tax consequences in
connection with exercising Dissenters' Rights, see "THE MERGER - Certain
Federal Income Tax Consequences."
RECOMMENDATION
For the reasons described below, the PBTC Board has adopted the
Reorganization Agreement and the Merger Agreement and has approved the proposed
PBTC Charter Amendment and believes the Merger is in the best interest of PBTC
and its stockholders and recommends that stockholders of PBTC vote FOR approval
of the Reorganization Agreement and annexed Merger Agreement and the PBTC
Charter Amendment.
THE MERGER
The following information concerning the Merger, insofar as it relates
to matters contained in the Reorganization Agreement or the Merger Agreement
annexed thereto as Exhibit A, is qualified in its entirety by reference to the
Reorganization Agreement and the Merger Agreement which is annexed hereto as
Appendix B. PBTC stockholders are urged to read the Reorganization Agreement
and the Merger Agreement annexed thereto as Exhibit A carefully.
BACKGROUND OF AND REASONS FOR THE MERGER
Background. Planters Bank & Trust Company is a state chartered bank
headquartered in Forrest City, Arkansas. Its main office is located at 321
North Rosser in Forrest City, Arkansas. At December 31, 1994, the Company had
total assets of $59.0 million, total deposits of $52.2 million, and total
stockholders' equity of $6.6 million. For the year ended December 31, 1994,
PBTC had net earnings of $404,000.
PBTC offers traditional banking services including commercial,
consumer, and real estate loans, deposit accounts, and personal and corporate
trust services. PBTC had approximately 43 full-time-equivalent employees as of
December 31, 1994.
16
<PAGE> 30
PBTC has been in operation in Forrest City since 1921. It opened
branches in DeValls Bluff and Cotton Plant in 1929. PBTC has one subsidiary,
Planters Investment Corporation, Inc. ("PICI") which holds and undertakes to
realize maximum value of assets acquired by PBTC through foreclosure or deeds
in lieu of foreclosure. The book value of assets held by PICI on March 31,
1995, was $367,468.
Approximately 51% of PBTC's consolidated loan portfolio is comprised
of residential, commercial or agricultural real estate mortgage loans.
Approximately 10.3% of its loan portfolio consists of commercial loans, 24.5%
in consumer loans and 14.1% in agricultural loans.
Economic and regulatory changes, including advances in technology and
increased com-petition and regulatory complexity, have led to a consolidation
within the banking industry. In Arkansas, a number of banks and bank holding
companies have, during the past few years, been acquired or have engaged in
merger or consolidation transactions due to these pressures.
From time to time, the PBTC Board and the management of PBTC have
considered various strategies for PBTC.
In light of this increased consolidation activity, the PBTC Board of
Directors concluded that it would be in the best interests of PBTC stockholders
to pursue a potential merger with a strong merger partner. At a September,
1994 meeting of the PBTC Board of Directors, a special committee of the PBTC
Board of Directors was formed. Its members were directors J.R. Chappell, Jr.,
John Casbeer, Oral Edwards and Rex B. Twist. Mr. Twist was elected Chairman of
this committee. The stated purpose of this committee was to explore all
reasonable alternatives with respect to a control transaction and to determine
which of such alternatives served best the interests of the PBTC stockholders.
The committee engaged Stephens Inc. of Little Rock, Arkansas as financial
advisor. For its role as financial advisor to PBTC, Stephens Inc. is to
receive a cash payment of $150,000 from PBTC, plus reimbursement for reasonable
expenses which are expected to be minimal. Payment is to be made at the
closing of the Merger. Stephens Inc. is controlled by certain members of the
families of Wilton R. Stephens (deceased) and Jackson T. Stephens, who are also
affiliates of PBTC. Various members of these two families and related trusts
own in the aggregate approximately 79.9% of the outstanding shares of PBTC
Common Stock. See "Certain Beneficial Owners of PBTC Common Stock." At this
meeting it was determined that Stephens Inc. would assemble and distribute
necessary information to prospective purchasers, analyze each offer received
and generally conduct the sale of PBTC in such a manner to maximize value to
PBTC stockholders.
Stephens Inc. prepared a list of potentially interested banks and bank
holding companies based on its recent experience in similar assignments and
discussions with PBTC. The list included two publicly traded bank holding
companies based in Arkansas, along with two companies from Tennessee. Selected
banks and bank holding companies operating in contiguous counties were also
listed. Each of these prospective purchasers was contacted and informed of the
potential sale of PBTC and was invited by letter in October, 1994 to submit a
bid to purchase PBTC.
Five of these potential buyers were sufficiently interested to submit
proposals to purchase PBTC. Proposals involved cash purchases by privately
held banks, and stock and/or cash from companies having a class of publicly
traded stock. Proposals were expressed either as fixed purchase amounts or as
a multiple of PBTC's net book value.
17
<PAGE> 31
UPC's final proposal called for a stock for stock tax-free merger.
The UPC proposal involved a purchase price based upon a multiple of PBTC net
book value that was higher than that proposed by other prospective purchasers.
In the event that UPC shares were to be issued in a stock for stock exchange,
the exchange rate for each share of PBTC Common Stock would be based upon an
average trading price of UPC Common Stock to be negotiated. The final UPC
proposal also provided for an additional $40,000 consideration per month until
closing for each month after April, 1995 in which the transaction had not been
consummated. This additional consideration is payable at the election of UPC
either in cash or in shares of UPC Common Stock at the rate of $23.33 per
share.
The UPC proposal was deemed to be superior by the PBTC Board,
primarily based upon the superior purchase price. Moreover, the regular
dividend on the UPC stock that would be issued in a stock exchange would be
substantially more than the dividend paid on the PBTC Common Stock which would
be exchanged in the Merger. Accordingly, the special committee directed
Stephens Inc. and PBTC's counsel to negotiate a letter of intent with UPC.
Such a letter was approved by the special committee and signed on December 15,
1994 by Mr. Twist as Chairman of the special committee..
After further negotiation and a mutual review by the parties of the
respective operations of the respective parties, UPC, PBTC and FSB executed the
Reorganization Agreement as of February 10, 1995 (a copy of which, together
with the Merger Agreement, is annexed to this Prospectus as Appendix B), which
was approved by the PBTC Board at a special meeting on March 14, 1995, and
ratified by the Board of Directors of UPC at its regular meeting held on April
27, 1995.
PBTC Reasons. In light of foregoing, the PBTC Board has voted to
unanimously recommend approval by the PBTC stockholders of the Reorganization
Agreement and the Merger Agreement annexed thereto as Exhibit A for, among
others, the following reasons:
(i) The consideration to be paid by UPC. See "THE MERGER -- Terms
of the Merger." Based on a market price per share of $23.33 for UPC Common
Stock, the transaction value of the consideration to be delivered by UPC
reflected a price-to-book multiple of 1.24 times PBTC's book value as of
December 31, 1994, and a price-to-earnings multiple of 20.4 (based on 1994 net
income). A representative of Stephens Inc. advised the PBTC Board that these
multiples compared favorably with the ratios of recently completed comparable
bank merger transactions in Arkansas;
(ii) The trends in the banking industry are toward consolidation and
increased regulation; particularly, recent changes have resulted in an
environment in which community banks have commanded and for some indefinite
future period will command, attractive purchase prices; and the PBTC Board
sought to take advantage of this environment;
(iii) PBTC will benefit from UPC's capital, operations and
regulatory expertise and management talent, and may achieve certain economies
of scale in its banking operations;
(iv) The annual dividend yield on the UPC Common Stock offered in
exchange for the PBTC Common Stock exceeds the historical yield on the PBTC
Common Stock and there is a much broader and more liquid market for the UPC
Common Stock, which is listed and traded on the NYSE.
UPC Reasons. Management of UPC has recommended to the UPC Board of
Directors (the "UPC Board"), and the UPC Board has approved the Merger and the
Reorganization Agreement along
18
<PAGE> 32
with the Merger Agreement annexed thereto as Exhibit A, because (i) PBTC has
experienced steady and continued growth, (ii) PBTC is located geographically in
Arkansas counties in which UPC has sought to increase its market share, and
(iii) UPC believes that by providing PBTC with access to the UPC capital base
and other banking resources, the banking offices presently operated by PBTC
will be well positioned to compete in its respective markets in the face of
enhanced competition from larger, better capitalized institutions.
TERMS OF THE MERGER
At the Effective Time of the Merger, PBTC will merge with and into FSB
with FSB surviving the Merger as the Resulting Bank and continuing after the
Effective Time of the Merger to operate under the name First Southern Bank. In
this manner PBTC and its three branches would be acquired by UPC as a result of
its merger with and into First Southern Bank, already a wholly-owned Banking
Subsidiary of UPC. In the Merger, each share of PBTC Common Stock outstanding
immediately prior to the Effective Time of the Merger, other than shares with
respect to which Dissenters' Rights shall have been perfected as described
above, will be converted exclusively into the right of the PBTC stockholder to
receive the Consideration provided for in the Reorganization Agreement and the
Merger Agreement as described in the following paragraph.
The method of determining the amount of Consideration to be delivered
to the PBTC stockholders is stipulated in Section 3.1(e) of the Reorganization
Agreement. Under Section 3.1(e), the stockholders of PBTC would receive a
"Base Consideration" of 14.21630 shares of Union Planters Corporation Common
Stock in exchange for each share of PBTC Common Stock held by them of record
immediately before the Effective Time of the Merger. The PBTC stockholders
collectively would also be entitled to receive "Additional Consideration"
having an aggregate value of $40,000 per month through the Closing Date for
each month following April 1995. The form of the Additional Consideration
would be additional shares of UPC Common Stock. The following table reflects
the "Exchange Ratio," i.e. the number of shares of UPC Common Stock which would
be received with respect to each share of PBTC Common Stock held by a PBTC
stockholder immediately prior to the Effective Time of the Merger assuming that
the Effective Time of the Merger would occur on the several dates specified in
the first column of the table below. The Exchange Ratio reflected in the table
includes both the Base Consideration and any Additional Consideration:
Date of Effective Time Exchange Ratio
---------------------- --------------
August 1, 1995 14.43062
September 1, 1995 14.50206
October 1, 1995 14.57349
November 1, 1995 14.64493
December 1, 1995 14.71637
January 1, 1996 14.78781
Should Closing take place on a date not reflected in the above table,
the amount of Additional Consideration would be determined on the basis of a
30-day month using $23.33 per share as the value of the UPC Common Stock. Thus
the Exchange Ratios reflected in the above table would be increased by 0.00238
for each day by which the Closing follows the next preceding date reflected in
the above table.
19
<PAGE> 33
Accordingly, although there can be no assurance that the Merger will
be effected as planned on August 1, 1995 (or, for that matter, at all), should
the Merger become effective on that date, a PBTC stockholder would receive in
exchange for each of his or her shares of PBTC Common Stock 14.43062 shares of
UPC Common Stock.
No fractional shares of UPC Common Stock will be issued in the
transaction and if, after aggregation of all shares (and fractional shares) of
UPC Common Stock to which a PBTC Record Holder is entitled, cash will be paid
by UPC in lieu of any remaining fractional share on the assumption that the UPC
Common Stock has a value of $23.33 per share.
Holders of PBTC Common Stock will have the right to dissent from the
Reorganization Agreement and the Merger Agreement and receive a cash payment
equal to the fair value of their shares, all in conformity with Section
23-32-506 of the Statute. See "THE SPECIAL MEETING--Stockholders' Dissenters'
Rights."
EFFECTIVE DATE AND EFFECTIVE TIME OF THE MERGER
Articles of Merger along with the Merger Agreement and a Certificate
of Amendment of the Charter of PBTC will be filed in the Office of the County
Clerk of St. Francis County, Arkansas, as soon as practicable after all
conditions precedent contained in the Reorganization Agreement have been
satisfied or lawfully waived, including receipt of all regulatory approvals and
expiration of all statutory waiting periods, or on such later date as may be
agreed to by UPC and PBTC. The Effective Time of the Merger will be the time
the Articles of Merger along with the Merger Agreement and Certificate of
Amendment of the Charter of PBTC have all been filed in the Office of the
County Clerk of St. Francis County, Arkansas, pursuant to the Statute or at
such later time as the parties may agree and specify in the Articles of Merger.
The Effective Date of the Merger will be the day on which the Effective Time of
the Merger occurs. It is presently expected that these documents will be filed
with the County Clerk on or about July 31, 1995, and will specify, by agreement
of the parties, an Effective Time of the Merger of 12:01 a.m., Central Time, on
August 1, 1995. There can be no assurance that such intention will be
achieved.
SURRENDER OF CERTIFICATES
As promptly as practicable after the Effective Time of the Merger,
Union Planters National Bank, acting in the capacity of exchange agent (the
"Exchange Agent"), will mail to each person who was a holder of record of PBTC
Common Stock immediately prior to the Effective Time of the Merger a form
letter of transmittal, together with instructions and a return mailing envelope
(collectively, the "Exchange Materials") to facilitate the exchange of such
holder's certificates formerly representing shares of PBTC Common Stock for the
Consideration.
HOLDERS OF PBTC COMMON STOCK WHO DO NOT INTEND TO EXERCISE THEIR
DISSENTERS' RIGHTS SHOULD NOT SEND IN THEIR CERTIFICATES UNTIL THEY RECEIVE THE
EXCHANGE MATERIALS FROM THE EXCHANGE AGENT.
Upon receipt of the Exchange Materials, PBTC Record Holders should
complete the letter of transmittal in accordance with the instructions provided
and deliver the letter of transmittal, together with all stock certificates
formerly representing shares of PBTC Common Stock to the Exchange
20
<PAGE> 34
Agent in the return envelope provided. Provided the Exchange Agent shall have
received the certificates and related documentation completed in proper form,
as soon as practicable after the Effective Time of the Merger UPC will issue,
and the Exchange Agent will mail, to the PBTC Record Holder a certificate
representing the whole number of shares of UPC Common Stock to which such
holder is entitled pursuant to the Reorganization Agreement and a check in the
amount of any cash consideration which may be payable with respect to a
remaining fractional share. No consideration will be delivered to a PBTC
Record Holder unless and until such holder shall have properly delivered to the
Exchange Agent certificates formerly representing the shares of PBTC Common
Stock owned by him and in respect of which he claims payment is due, or such
documentation, if applicable, and security in respect of lost or stolen
certificates as may be required by the Reorganization Agreement.
No dividend or other distribution with respect to the UPC Common Stock
will be paid or delivered to the holder of any unsurrendered PBTC
certificate(s) until the holder surrenders such certificate(s) in accordance
with the Exchange Materials, at which time the holder will be entitled to
receive all previously withheld dividends and distributions, without interest.
After the Effective Time of the Merger, there will be no further
transfers on PBTC's stock transfer books of shares of PBTC Common Stock issued
and outstanding immediately prior to the Effective Time of the Merger. If
certificates representing shares of PBTC Common Stock should be presented for
transfer after the Effective Time of the Merger, they will be returned to the
presenter together with a form of letter of transmittal and exchange
instructions.
Neither UPC, PBTC, the Exchange Agent, nor any other person shall be
liable to any former holder of PBTC Common Stock for any amount properly
delivered to a public official pursuant to applicable unclaimed property,
escheat or similar laws.
If a certificate formerly representing PBTC Common Stock shall have
been lost, stolen or destroyed, the Exchange Agent will deliver the
consideration properly payable in respect to such certificate in accordance
with the Reorganization Agreement upon receipt of appropriate evidence as to
such loss, theft or destruction; appropriate evidence as to ownership of such
certificate by the claimant; and a lost instrument bond in form satisfactory to
UPC, FSB and the Exchange Agent as required by the Exchange Materials.
CONDITIONS TO CONSUMMATION OF THE MERGER
The respective obligations of UPC and PBTC to effect the Merger are
subject to the satisfaction of the following conditions prior to the Effective
Time of the Merger: (i) approval of the Reorganization Agreement and the Merger
Agreement and the transactions contemplated thereby and the proposed PBTC
Charter Amendment by the affirmative votes of the holders of at least two-
thirds (2/3) of the total shares of PBTC Common Stock outstanding on the Record
Date; (ii) approval of the Reorganization Agreement and the transactions
contemplated thereby by both the FDIC and the Arkansas Department and the
expiration of any statutory waiting periods; (iii) receipt of all other
regulatory and contractual consents necessary to consummate the transactions
contemplated by the Reorganization Agreement; (iv) the expiration of any
statutory waiting periods; (v) the satisfaction of all other requirements
prescribed by law as conditions precedent to the consummation of the
transactions contemplated by the Reorganization Agreement; (vi) none of UPC,
PBTC or FSB shall be subject to any order, decree or injunction of a court or
agency which presents a substantial risk of the restraint or prohibition of the
consummation of the Merger or the obtaining of material damages or
21
<PAGE> 35
other relief in connection therewith; and (vi) the Registration Statement of
which this Prospectus forms a part shall have become effective and no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been initiated or
threatened by the Commission.
The obligations of UPC and FSB to effect the Merger are further
subject to the satisfaction, or waiver by UPC, of the following conditions: (i)
UPC shall have received a legal opinion, dated the date of closing, from
counsel to PBTC as to the good standing of PBTC, the enforceability and due
authorization of the Reorganization Agreement, the due authorization of the
PBTC Charter Amendment and the receipt of all required approvals (subject to
limitations as permitted in the Reorganization Agreement); (ii) each of the
representations, warranties and covenants of PBTC set forth in the
Reorganization Agreement shall, in all material respects, be true on, or
complied with by, the Effective Date of the Merger as if made on such date
(except to the extent they relate by their terms to an earlier date) and UPC
shall have received a certificate signed by certain officers of PBTC to such
effect; (iii) there shall have been no damage or destruction to, or taking of
any property of PBTC or any material adverse change in the business, financial
condition, results of operations or prospects of PBTC; (iv) PBTC shall not have
committed to effect any form of business combination with, or asset sale to any
other person or entity; adopted any "poison pill", stockholders' rights
provision or "golden parachute;" or taken any other action the effect of which
would be to materially diminish the value of PBTC to UPC; and (v) PBTC shall
have maintained certain asset and capital covenants and refrained from
declaring or paying any dividends subsequent to February 10, 1995.
The obligations of PBTC to effect the Merger are further subject to
the satisfaction, or waiver by PBTC, of the following conditions: (i) PBTC
shall have received a legal opinion, dated the date of closing, from counsel to
UPC as to the good standing of UPC and FSB, the enforceability and due
authorization of the Reorganization Agreement, the validity of the UPC Common
Stock, the receipt of required approvals and the absence of conflict with UPC's
Charter, Bylaws and material contracts (subject to limitations as permitted in
the Reorganization Agreement); (ii) each of the representations, warranties and
covenants of UPC set forth in the Reorganization Agreement will, in all
material respects, be true on, or complied with by, the Effective Date of the
Merger as if made on such date (except to the extent they relate by their terms
to an earlier date) and PBTC shall have received a certificate signed by
certain officers of UPC to that effect; (iii) PBTC shall have received from UPC
certificates from UPC executive officers stating that the consummation of the
transaction has been duly authorized and that the persons executing and
delivering documents on behalf of UPC are duly appointed and that their
signatures are genuine; (iv) PBTC shall have received from the Exchange Agent a
certificate evidencing receipt of the certificates representing the UPC Common
Stock and cash constituting the Consideration payable in the Merger; and (v)
there shall have been no material adverse change in the business, financial
condition, results of operation or prospects of UPC.
No assurance can be provided as to when, if ever, the regulatory
consents and approvals necessary to consummate the Merger will be obtained (or,
if so obtained, that such consents and approvals will not contain conditions or
requirements which would materially reduce the benefits of, and result in
abandonment of the Merger) or whether all of the other conditions precedent to
the Merger will be satisfied or waived by the party lawfully permitted to do
so.
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<PAGE> 36
REGULATORY APPROVALS
The Merger and the amendments to the Articles of Agreement and
Incorporation of both PBTC and FSB required to effect the Merger are subject to
prior approval by (i) the Arkansas State Bank Commissioner and the Arkansas
State Banking Board (the "Arkansas Department") under Section 23-32-503 and
Sections 23-32-204, 206 and 207 of the Arkansas Code of 1987 Annotated; and by
(ii) the Federal Deposit Insurance Corporation under the Bank Merger Act, Title
12 USC Section 1823. The Bank Merger Act, as amended, requires that the FDIC
take into consideration, among other factors, the financial and managerial
resources and future prospects of the institutions and the convenience and
needs of the communities to be served. Applications for such approvals have
been filed with and are pending before the FDIC and the Arkansas Department.
The Bank Merger Act prohibits the FDIC from approving the Merger if it would
result in a monopoly or be in furtherance of any combination or conspiracy to
monopolize or to attempt to monopolize the business of banking in any part of
the United States, or if its effect in any section of the country may be
substantially to lessen competition or to tend to create a monopoly, or if it
would in any other manner be a restraint of trade, unless the FDIC should find
that the anticompetitive effects of the Merger are clearly outweighed by the
public interest and the probable effect of the transaction in meeting the
convenience and needs of the communities to be served. The FDIC also has the
authority to deny an application if it should conclude that the combined
organization would have an inadequate capital position or if the acquiring
organization does not meet the requirements of the Community Reinvestment Act
of 1977.
Under the Act the Merger may not be consummated earlier than the 15th
day following the date of FDIC approval, during which time the United States
Department of Justice may challenge the Merger on antitrust grounds. The
commencement of an antitrust action would stay the effectiveness of the FDIC's
approval unless a court specifically orders otherwise. As of the date of this
Prospectus, neither the FDIC nor the Arkansas Bank Commissioner nor the
Arkansas Banking Board has given its approval of the Merger and Charter
Amendments.
The Merger may not lawfully proceed in the absence of the requisite
regulatory approvals. See "THE MERGER--Conditions to Consummation of the
Merger" and "--Waiver and Amendment; Termination."
There can be no assurance that the Department of Justice will not
challenge the Merger, or if such challenge is made, as to the result thereof.
CONDUCT OF BUSINESS PENDING THE MERGER
The Reorganization Agreement contains certain restrictions upon the
conduct of PBTC's, business pending consummation of the Merger. In particular,
the Reorganization Agreement provides that, except as otherwise provided in the
Reorganization Agreement and/or without the written consent of UPC, PBTC may
not, among other things; (i) amend its charter or bylaws; (ii) permit any lien
to exist in respect to any share of stock held by PBTC; (iii) repurchase any of
its capital stock, split or otherwise subdivide its capital stock, recapitalize
in any way or declare a stock dividend in respect to the PBTC Common Stock;
(iv) issue or sell any PBTC Common Stock or sell or otherwise dispose of a
substantial part of PBTC's assets or earning power; (v) dispose of, discontinue
or acquire any material assets or businesses other than in the ordinary course
of business; (vi) incur any additional debt in excess of $50,000 except in the
ordinary course of business; (vii) increase compensation, pay bonuses or enter
into severance arrangements except in accordance with past practices; (viii)
amend any existing employment contract with any person having a salary in
excess of $30,000 per year or
23
<PAGE> 37
enter into any new employment contract providing for an annual salary exceeding
$30,000 per year unless PBTC or its subsidiaries may terminate same at will
without liability; (ix) adopt any new benefit plan; (x) enter into any new
lease agreement; (xi) make any capital expenditures except in the ordinary
course of business; (xii) extend credit (or commit to extend credit) to any
officer, director or holder of 10% or more of PBTC Common Stock if such
extension of credit would exceed 2% of the capital of PBTC or amend the terms
of any such credit; or (xiii) acquire direct or indirect control over any
person or entity except in the ordinary course of business or in connection
with internal reorganizations and acquisitions in PBTC' fiduciary capacity.
Moreover, PBTC shall, among other things, operate in the usual, regular and
ordinary course, preserve its organization and assets and maintain its rights
and franchises, use its best efforts to retain its customer base and assist UPC
in procuring all applicable regulatory approvals.
PAYMENT OF DIVIDENDS
PBTC is prohibited under Section 7.3(c) of the Reorganization
Agreement from paying dividends or making any other type of distribution with
respect to the PBTC Common Stock.
WAIVER AND AMENDMENT; TERMINATION
Prior to the Effective Date of the Merger, any condition to closing
set forth in the Reorganization Agreement may (to the extent permitted by law)
be waived by the party benefitted by the provision or may be amended or
modified (including the structure of the transaction) by an agreement in
writing approved by the Boards of Directors of UPC and PBTC; provided, however,
that no such amendment may be effected after stockholder approval of the
Reorganization Agreement and the Merger Agreement without approval of the PBTC
stockholders if the effect of such amendment would be to change the amount or
the type of consideration to be delivered and/or paid in the Merger to the PBTC
Record Holders.
The Reorganization Agreement may be terminated at any time prior to
the Effective Date of the Merger, either before or after approval by the PBTC
stockholders, as follows: (i) by the mutual consent of the parties; (ii) by UPC
if PBTC, should violate any affirmative or negative covenant in respect to the
operation of its business; (iii) by UPC or PBTC if the Closing Date shall not
have, with certain exceptions, occurred by August 30, 1995, unless the failure
is due to the failure of the party seeking to terminate; (iv) by either party
if any governmental or regulatory approval should be denied and not
successfully appealed within certain time limits; (v) by either party if the
other party's conditions shall not have been satisfied in all material respects
or waived as of the Closing Date or if the other party has committed a material
breach which shall not have been cured within 30 days after the breaching party
receives notice of such breach; (vi) by UPC if there shall have been a material
adverse change in the business, properties, liabilities or prospects of PBTC or
if PBTC should enter into a formal capital plan in cooperation with applicable
banking regulators; or (vii) by UPC should PBTC enter into any business
combination or any letter of intent or agreement with respect thereto with any
other person.
In the event of the valid termination of the Reorganization Agreement
by either UPC or PBTC, the Reorganization Agreement and the Merger Agreement
shall become void, and there will be no liability on the part of either party
or their officers or directors except for liability for breach of the
Reorganization Agreement or for any misstatement or misrepresentation made
prior to such termination.
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<PAGE> 38
MANAGEMENT AFTER THE MERGER
The Reorganization Agreement and the Merger Agreement provide that
after the Effective Time of the Merger, FSB, as the surviving corporation,
would be managed by a board of directors and executive officers consisting of
the following persons each of whom is currently serving on the Board of
Directors of FSB.
<TABLE>
<CAPTION>
NAME AGE POSITION WITH FIRST SOUTHERN BANK
- ---- --- ---------------------------------
<S> <C> <C>
W. Price Morrison 67 Chairman and Director of FSB
John E. Gregson 54 President and Chief Executive Officer of FSB for
the past seven years
Chris M. Lehman 44 Executive Vice President and Director of FSB for
the past seven years
Joe M. Morrison 35 Director
John T. Morrison 40 Director
W. Price Morrison, Jr. 38 Director
James H. Taylor 55 Director
David S. Wallace 54 Director
_____________
</TABLE>
The Principal occupations of the above persons for at least the past five years
are as follows:
W. Price Morrison is an investor. He is President of Morrison Brothers, Inc.,
Earle, Arkansas, which was actively engaged in farming in Crittenden County,
Arkansas for many years prior to 1994.
Joe. M. Morrison is engaged in the securities business in Memphis, Tennessee.
He is a principal of Wallace-Morrison Management, LLC and prior thereto was
associated with Gerber-Taylor & Associates, a registered broker/dealer in
Memphis.
John T. Morrison is engaged in farming in Crittenden County, Arkansas as a
general partner in JTM Farms. Prior to 1994 he was associated with Morrison
Brothers, Inc.
W. Price Morrison, Jr. is a lawyer. He is a shareholder and director of
Martin, Tate, Morrow & Marston, P.C., Memphis, Tennessee.
James H. Taylor is President of James H. Taylor & Sons, a construction
contractor in Crawfordsville, Arkansas.
David S. Wallace is a farmer and a principal and the owner of Vincent Gin
Company, Crawfordsville, Arkansas..
All officers and directors of FSB serve one-year terms but may be
reelected or reappointed, as the case may be as provided in FSB's Bylaws.
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<PAGE> 39
Management of UPC has under consideration various issues, including
the management of FSB after consummation of the Merger and the advisability of
consolidating a limited number of UPC's Banking Subsidiaries which are now
headquartered in the same markets in order to effect certain economies and to
facilitate UPC's advertising and other promotional endeavors. It is expected
that one or two current directors of PBTC would be added to FSB's Board of
Directors. Should FSB be merged with and into First National Bank of West
Memphis after consummation of its pending acquisition by UPC, a transaction
which is under consideration by UPC, or if FSB should at some future date be
combined with another UPC subsidiary, it is expected that the ultimate
resulting bank's Board of Directors would include members of the Boards of
Directors of both PBTC and FSB as well as of the entity with which it is
combined. It is expected that after the Effective Time of the Merger, the
officers and other employees of the PBTC and FSB would continue to serve as
officers and employees of FSB as the Resulting Bank in the same banking offices
of PBTC and FSB in which they now serve.
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<PAGE> 40
PBTC EXECUTIVE COMPENSATION
During the past three years, compensation has been paid to certain executive
officers by PBTC. The following table sets forth the compensation received by
the President and Chief Executive Officer of PBTC for the periods indicated.
PBTC has no other executive officers whose total annual remuneration exceeded
$100,000.
<TABLE>
<CAPTION>
LONG-TERM COMPENSATION
----------------------
ANNUAL COMPENSATION AWARDS PAYOUTS
------------------- ------ -------
NAME AND RESTRICTED
PRINCIPAL OTHER ANNUAL STOCK OPTIONS/ LTIP ALL OTHER
POSITION YEAR SALARY(1) BONUS COMPENSATION(2) AWARDS SARS PAYOUTS COMPENSATION(3)
- --------- ---- ---------- ----- ---------------- ----------- -------- ------- ----------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Frankie L. Pratt 1994 $ 82,350 $ 40,000 $ 1,332 - - - $ 8,039
Chairman, 1993 82,350 40,000 1,187 - - - 7,933
President and 1992 78,600 40,000 1,271 - - - 7,159
Chief Executive
Officer of PBTC;
________________________
</TABLE>
(1) Information under "Salary" includes fees for service as a director of
PBTC.
(2) Reflects annual contributions by PBTC to Mr. Pratt's Profit Sharing
Plan account.
(3) Reflects automobile and insurance benefits and club dues.
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<PAGE> 41
INTERESTS OF CERTAIN PERSONS IN THE MERGER
The directors and officers of PBTC own approximately 5.98% of the
outstanding shares of PBTC Common Stock issued and outstanding and will receive
the Merger consideration described above. All officers of PBTC are expected to
become officers of FSB at the Effective Time of the Merger.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
THE FEDERAL INCOME TAX DISCUSSION SET FORTH BELOW IS ABBREVIATED IN
NATURE AND IS INCLUDED FOR GENERAL INFORMATION ONLY. PBTC STOCKHOLDERS ARE
URGED TO CONSULT THEIR OWN TAX ADVISERS AS TO THE SPECIFIC TAX CONSEQUENCES TO
THEM OF THE MERGER, INCLUDING THE APPLICABILITY AND EFFECT OF FEDERAL, STATE
AND LOCAL AND OTHER TAX LAWS.
General. It is intended that for federal income tax purposes the
Merger will be treated as a "reorganization" within the meaning of Section 368
of the Internal Revenue Code, and that, accordingly, (i) no gain or loss will
be recognized by either UPC, PBTC or FSB as a result of the Merger, (ii) gain
or loss would be recognized by the PBTC stockholders only to the extent of any
cash consideration received in lieu of the issuance of fractional shares of UPC
Common Stock; (iii) the tax basis of the UPC Common Stock, including the tax
basis of any fractional share thereof, to be received by the PBTC stockholders
in connection with the Merger will be the same as the tax basis in the PBTC
Common Stock surrendered in exchange therefor, increased by the amount of any
gain recognized and reduced by the amount of cash received with respect thereto
and the amount allocable to a fractional share interest for which cash is
received; and (iv) the holding period of the UPC Common Stock to be received by
the PBTC stockholders in connection with the Merger will include the holding
period of the PBTC Common Stock surrendered in exchange therefor, provided that
the PBTC Common Stock is held by the stockholder as a capital asset at the
Effective Time of the Merger.
The Additional Consideration. Upon consummation of the Merger, UPC
will be obligated to deliver to the PBTC stockholders shares of UPC Common
Stock as the Additional Consideration. See "THE MERGER--Terms of the Merger."
The Internal Revenue Service could contend that the Additional Consideration
constitutes taxable boot even though it will be paid in UPC Common Stock. No
opinion of counsel will be received with respect to the tax treatment of the
Additional Consideration.
Consequences of Receipt of Cash in Lieu of Fractional Shares. It is
likely that because of the five-decimal-place Exchange Ratio, a fractional
share of UPC Common Stock will remain after aggregation of all shares and
fractional shares of UPC Common Stock to which each PBTC stockholder is
entitled. A PBTC stockholder who is entitled to receive cash in lieu of a
fractional share of UPC Common Stock in connection with the Merger will
recognize as of the Effective Date of the Merger gain (or loss) equal to the
difference between such cash amount and the stockholder's basis in the
fractional share interest. In either case, any gain (or loss) recognized will
be capital gain (or loss) if the PBTC Common Stock is held by such stockholder
as a capital asset at the Effective Date of the Merger.
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<PAGE> 42
Cash Received by Holders of PBTC Common Stock Who Perfect their Dissents.
A stockholder of PBTC who perfects his dissenters' rights under the laws of
Tennessee and who receives a cash payment for the "fair market value" of his
shares of PBTC Common Stock will be treated as having received such payment in
redemption of such stock. Such redemption will be subject to the conditions
and limitations of Section 302 of the Code, including the attribution rules of
Section 318. In general, if the shares of PBTC Common Stock are held by the
holder as a capital asset at the Effective Time of the Merger, such holder will
recognize capital gain (or loss) measured by the difference between the amount
of cash received by such holder and the basis of such shares. Each holder of
PBTC Common Stock who contemplates exercising his dissenters' rights should
consult his own tax advisor as to the possibility that any payment to him would
be treated as dividend income.
ACCOUNTING TREATMENT
The Merger is intended to be treated by UPC and PBTC as a "pooling of
interests" for accounting purposes. Accordingly, under generally accepted
accounting principles and Accounting Principles Board Opinion No. 16 for
business combinations, the assets and liabilities of PBTC and UPC will be
carried on the books of UPC immediately subsequent to the Effective Time of the
Merger at the amounts recorded on the respective books of each corporation
immediately prior to the Effective Time of the Merger. Net income of UPC
subsequent to the Merger becoming effective would include the net income of
both PBTC and UPC for the entire fiscal period in which the Effective Time of
the Merger occurs, which is expected by UPC and PBTC to be fiscal year 1995.
Subsequent to the Merger becoming effective, the reported income of PBTC and
UPC would be combined and restated as income of UPC. However, should the
holders of more than 10% of the PBTC Common Stock perfect and maintain in
perfected status their stockholders' dissenters' rights, the Merger would be
accounted for under the "purchase" method of accounting; provided, however,
that UPC has the right to terminate the Reorganization Agreement without
penalty should the holders of more than 7% of the PBTC Common Stock perfect
their stockholders' dissenters' rights. See "THE MERGER--Terms of the Merger."
Under generally accepted accounting principles, the purchase method would
require that the assets and liabilities of PBTC be adjusted to their fair
values as of the date of acquisition and the resulting goodwill to be allocated
in accordance with APB Opinion No. 16. Net income of UPC would include the net
income of PBTC accrued subsequent to the Effective Time of the Merger.
EXPENSES
The Reorganization Agreement provides, in general, that UPC, PBTC and
FSB will each pay their own expenses in connection with the Reorganization
Agreement and the transactions contemplated thereby, including fees and
expenses of their own independent accountants and counsel.
RESALES OF UPC COMMON STOCK
The shares of UPC Common Stock issued pursuant to the Reorganization
Agreement will be freely transferable under the Securities Act of 1933 except
for shares issued to any PBTC stockholder who may be deemed to be an
"affiliate" of PBTC and therefore an "underwriter" with respect to the UPC
Common Stock received for purposes of Rule 145 under the Securities Act as of
the date of the Special Meeting. Affiliates may not sell their shares of UPC
Common Stock acquired in connection with the Merger except pursuant to an
effective registration statement under the Securities Act (other than on Form
S-4) covering such shares or in compliance with Rule 145 promulgated under the
29
<PAGE> 43
Securities Act or another applicable exemption from the registration
requirements of the Securities Act. Persons who may be deemed to be affiliates
of PBTC generally include individuals or entities that control, are controlled
by or are under common control with, PBTC and include executive officers,
directors or, holders of ten percent (10%) or more of the PBTC Common Stock.
UPC may place restrictive legends on certificates representing UPC Common Stock
issued to all persons who are deemed "underwriters" under Rule 145. The form
of the restrictive legend is set forth in Section 2.6 of the Reorganization
Agreement (pages 9 and 10 of Appendix B to this Prospectus).
CERTAIN REGULATORY CONSIDERATIONS
As a bank holding company, UPC is subject to the regulation and
supervision of the Federal Reserve. In addition, as a savings and loan holding
company, UPC is registered with the Office of Thrift Supervision (the "OTS").
Thus, UPC is subject to Federal Reserve and OTS regulations, supervision and
reporting requirements. UPC's Banking Subsidiaries which are national banking
associations are subject to supervision and examination by both the Office of
the Comptroller of the Currency (the "Comptroller") and the Federal Deposit
Insurance Corporation (the "FDIC"). State-chartered bank subsidiaries of UPC
which are members of the Federal Reserve System are subject to supervision and
examination by the Federal Reserve and the state banking authorities of the
states in which they are located. State-chartered bank subsidiaries which are
not members of the Federal Reserve System are subject to supervision and
examination by the FDIC and the state banking authorities of the states in
which they are located. UPC's federally-chartered savings bank subsidiaries are
subject to supervision and examination by the OTS. UPC's Banking Subsidiaries
are subject to various requirements and restrictions, including requirements to
maintain reserves against deposits, restrictions on the types and amounts of
loans that may be granted and the interest that may be charged thereon, and
limitations on the types of investments that may be made and the types of
services that may be offered. Various consumer laws and regulations also affect
the operations of the banks. In addition to the impact of regulation, the
Banking Subsidiaries are also affected significantly by the actions of the
Federal Reserve as it attempts to control the money supply and credit
availability in order to influence the economy. A more detailed discussion of
this subject may be found in Part I, Item 1 of UPC's Annual Report on Form 10-K
dated December 31, 1994, under the caption GOVERNMENTAL SUPERVISION AND
REGULATION OF FINANCIAL INSTITUTIONS (pages 3 through 6) which is hereby
incorporated by reference in this Prospectus.
As FDIC-insured, Arkansas-chartered banking corporations, both PBTC
and FSB are subject to the regulation and supervision of both the Arkansas
State Bank Commissioner and the FDIC. Thus both PBTC and FSB are subject to
regulation similar in scope to that of UPC's other subsidiaries which are
Arkansas-chartered, FDIC-insured banks which are not members of the Federal
Reserve System.
Some of the many subjects of governmental regulation are: business
expansion through acquisitions or otherwise, capital adequacy, the requirement
of prompt corrective action under certain circumstances, restriction upon
payments of dividends and making other distributions, support of subsidiary
banks, limitations upon transactions with affiliates, FDIC Deposit Insurance
assessments, standards for safety and soundness, limitations upon acceptance of
brokered deposits, consumer protection, accounting, financial reporting and
similar matters.
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<PAGE> 44
DESCRIPTION OF THE UPC COMMON AND PREFERRED STOCK
UPC's Charter of Incorporation ("Charter") currently authorizes the
issuance of 100,000,000 shares of common stock having a par value of $5.00 per
share (the "UPC Common Stock") and 10,000,000 shares of preferred stock having
no par value (the "UPC Preferred Stock"). As of April 30, 1995, 40,415,368
shares of UPC Common Stock were issued and outstanding and approximately
869,000 shares were subject to issuance through the exercise of options granted
pursuant to UPC's 1992 and 1983 Stock Option Plans and other employee, officer
and director benefit plans; approximately 968,000 shares were authorized for
issuance pursuant to said plans but not yet subject to option grants or
otherwise issued; and approximately 4,478,000 shares were authorized for
issuance and reserved for conversion of certain shares of UPC Preferred Stock.
In addition, as of March 31, 1995, 3,405,577 shares of UPC Preferred Stock of
all series were issued and outstanding, consisting of 44,000 shares of UPC's
$8.00 Nonredeemable, Cumulative, Convertible Preferred Stock, Series B (the
"Series B Preferred Stock"); 253,655 shares of UPC's 9.5% Redeemable,
Cumulative, Convertible Preferred Stock, Series D (the "Series D Preferred
Stock"); and 3,107,922 shares of the UPC's 8% Cumulative, Convertible Preferred
Stock, Series E (the "Series E Preferred Stock," an additional 407,196 shares
of which is expected to be issued in connection with another pending
acquisition). As of May 1, 1995, none of UPC's 250,000 authorized shares of
Series A Preferred Stock were issued and outstanding nor is management aware of
the existence of circumstances from which it may be inferred that such issuance
is imminent. THE CAPITAL STOCK OF UPC DOES NOT REPRESENT OR CONSTITUTE A
DEPOSIT ACCOUNT AND IS NOT INSURED BY THE FDIC, THE BANK INSURANCE FUND, THE
SAVINGS ASSOCIATION INSURANCE FUND OR ANY GOVERNMENTAL AGENCY.
THE UPC COMMON STOCK
General. Shares of UPC Common Stock may be issued at such time or
times and for such consideration (not less than the par value thereof) as the
UPC Board may deem advisable, subject to such limitations as may be set forth
in the laws of the State of Tennessee or UPC's Charter or Bylaws. Union
Planters National Bank, a wholly-owned subsidiary of UPC, is the Registrar,
Transfer Agent and Dividend Disbursing Agent for shares of UPC Common Stock.
Dividends. Subject to the preferential dividend rights, if any,
applicable to shares of the UPC Preferred Stock and subject to applicable
requirements, if any, with respect to the setting aside of sums for purchase,
retirement or sinking funds, if any, for all outstanding UPC Preferred Stock,
the holders of the UPC Common Stock are entitled to receive, to the extent
permitted by law, such dividends as may be declared from time to time by the
UPC Board.
UPC has the right to, and may from time to time enter into borrowing
arrangements or issue other debt instruments, the provisions of which may
contain restrictions on payment of dividends and other distributions on the UPC
Common Stock and UPC Preferred Stock. In June 1993, UPC entered into an
unsecured $25-million line-of-credit agreement which expires May 31, 1996. No
borrowings are outstanding thereunder. This line of credit is for working
capital purposes and as a commercial paper backup and includes certain negative
covenants relating to the payment of dividends, making acquisitions, sale of
assets and incurring of indebtedness. UPC's dividends are limited by the loan
agreement to 60% of its consolidated net earnings for the preceding fiscal
year. Because of significant restructuring and other charges taken by UPC in
the fourth quarter of 1994 which reduced its 1994 consolidated net earnings,
should UPC desire to draw against this line of credit, it would be necessary
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<PAGE> 45
for UPC to obtain the lenders' permission to pay dividends on the UPC Common
Stock, but not the UPC Preferred Stock, in the latter part of 1995. Although
UPC has not drawn on this line of credit, UPC has requested permission which is
expected to be forthcoming.
Liquidation Rights. In the event of the voluntary or involuntary
liquidation, dissolution, distribution of assets or winding-up of UPC, after
distribution in full of the preferential amounts, if any, to be distributed to
the holders of UPC Preferred Stock, holders of UPC Common Stock will be
entitled to receive all of the remaining assets of UPC of whatever kind
available for distribution to shareholders ratably in proportion to the number
of shares of UPC Common Stock held. The UPC Board may distribute in kind to
the holders of UPC Common Stock such remaining assets of UPC or may sell,
transfer or otherwise dispose of all or any part of such remaining assets to
any other person or entity and receive payment therefor in cash, stock or
obligations of such other person or entity, and may sell all or any part of the
consideration so received and distribute any balance thereof in kind to holders
of UPC Common Stock. Neither the merger or consolidation of UPC into or with
any other corporation, nor the merger of any other corporation into UPC, nor
any purchase or redemption of shares of stock of UPC of any class, shall be
deemed to be a dissolution, liquidation or winding-up of UPC for purposes of
this paragraph.
Because UPC is a holding company, its right and the rights of its
creditors and shareholders, including the holders of UPC Preferred Stock and
UPC Common Stock, to participate in the distribution of assets of a subsidiary
on its liquidation or recapitalization may be subject to prior claims of such
subsidiary's creditors except to the extent that UPC itself may be a creditor
having recognized claims against such subsidiary.
THE UPC PREFERRED STOCK
Series A Preferred Stock. UPC's Charter provides for the issuance of
up to 250,000 shares (subject to adjustment by action of the UPC Board) of
Series A Preferred Stock under certain circumstances involving a potential
change in control of UPC. None of such shares are outstanding and management
is aware of no facts suggesting that issuance of such shares may be imminent.
The Series A Preferred Stock is described in more detail in UPC's Current
Report on Form 8-K dated January 19, 1989, and filed February 1, 1989
(Commission File No. 0-6919) which is incorporated by reference herein.
Series B Preferred Stock. In November 1989, UPC issued to two holders,
in a private offering incidental to an acquisition, 44,000 shares of its Series
B Preferred Stock all of which are outstanding as of the date hereof. Such
shares bear a dividend rate of $8.00 per share per annum; dividends are
cumulative. Each share of Series B Preferred Stock is convertible at the
option of the holder into 7.722 shares of UPC Common Stock, with the maximum
number of shares of UPC Common Stock into which such shares may be converted
being 339,768. The Series B Preferred Stock is not subject to any sinking fund
provisions and has no preemptive rights. Such shares provide for a liquidation
preference of $100.00 per share plus unpaid dividends accrued thereon and are
not subject to redemption by UPC. Holders of Series B Preferred Stock have no
voting rights except as required by law and certain other limited
circumstances.
Series D Preferred Stock. In connection with the July, 1992
acquisition of Southeastern Bancshares, Inc., UPC issued in a private offering
253,655 shares of Series D Preferred Stock. Such shares have a stated value of
$20.50 per share on which dividends accrue at a rate of 9.5% per
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<PAGE> 46
annum; dividends are cumulative. At any time prior to redemption, each share
of the Series D Preferred Stock is convertible at the option of the holder into
one share of UPC Common Stock. The Series D Preferred Stock is not subject to
any sinking fund provisions and has no preemptive rights. Such shares have a
liquidation preference of $20.50 per share plus unpaid dividends accrued
thereon and, at UPC's option, with the prior approval of the Federal Reserve,
are subject to redemption by UPC at any time and from time to time on or after
July 1, 1995. Holders of Series D Preferred Stock have no voting rights except
as required by law and in certain other limited circumstances. Management
intends to call for redemption on July 1, 1995, all of UPC's Series D Preferred
Stock. This action is contingent upon receipt of the prior approval of the
Board of Governors of the Federal Reserve System, application for which has
been made. It is expected that upon its call, the holders thereof would
convert their Series D Preferred Stock into shares of UPC Common Stock unless
the market price of the UPC Common Stock should fall below $20.50 per share.
Series E Preferred Stock. In February, 1992, UPC issued in a public
offering 2,200,000 shares of Series E Preferred Stock, all of which (except for
600 previously converted shares) are outstanding as of the date hereof. In the
first two quarters of 1993, UPC issued 908,522 shares of Series E Preferred
Stock in connection with UPC's acquisition of the remaining equity interest in
Bank of East Tennessee and UPC's acquisition of Erin Bank & Trust Company in
Erin, Tennessee, all of which are outstanding as of the date hereof. UPC
expects to issue approximately 407,196 additional shares of Series E Preferred
Stock in the acquisition of First State Bancorporation, Inc. which is expected
to be closed in the third quarter of 1995. See "SUMMARY--Recent Developments
Affecting UPC." All shares of Series E Preferred Stock have a stated value of
$25.00 per share. Dividends are payable at the rate of $.50 per share per
quarter and are cumulative. The Series E Preferred Stock is convertible at the
rate of 1.25 shares of UPC Common Stock for each share of Series E Preferred
Stock. The Series E Preferred Stock is not subject to any sinking fund
provisions and has no preemptive rights. Such shares have a liquidation
preference of $25.00 per share plus unpaid dividends accrued thereon and, at
UPC's option and with the prior approval of the Federal Reserve Board, are
subject to redemption by UPC at any time or from time to time after March 31,
1997. Holders of Series E Preferred Stock have no voting rights except as
required by law and in certain other limited circumstances.
CERTAIN PROVISIONS THAT MAY HAVE AN ANTI-TAKEOVER EFFECT
Certain provisions of UPC's Charter and Bylaws, and certain provisions
of Tennessee law, may have an anti-takeover effect in that they could prevent,
discourage or delay a change in control of UPC. The following summary briefly
describes certain of those provisions. The summary is not intended to be
complete and is qualified in its entirety by reference to UPC's Charter and
Bylaws and to the Tennessee Code.
Charter and Bylaw Provisions. Pursuant to UPC's Charter, the
directors of UPC are elected for three-year terms of office, and approximately
one-third of the members of the UPC Board are up for election each year. The
Charter also restricts the removal of directors by shareholders.
The Charter requires the affirmative votes of the holders of 66 2/3%
of the outstanding stock for approval of a merger, consolidation or a sale or
lease of all or substantially all of the assets of UPC if the other party to
the transaction is a beneficial owner of 10% or more of the outstanding shares
of UPC. The Charter also requires the affirmative votes of the holders of 66
2/3% of the outstanding stock to amend the Bylaws of UPC and the provisions of
the Charter applicable to UPC's
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<PAGE> 47
capital stock; to change the number, election and classification of directors;
to give approval of certain transactions as described above; and to amend
certain provisions of the Charter.
Share Purchase Rights Plan. In 1989, the UPC Board adopted a Share
Purchase Rights Plan and distributed a dividend of one Preferred Share Unit
Purchase Right ("Right") for each outstanding share of UPC Common Stock.
Moreover, one Right was required to be, automatically and without further
action by UPC, distributed in respect to each share of UPC Common Stock issued
thereafter. The Rights are generally designed to deter coercive takeover
tactics and to encourage all persons interested in potentially acquiring
control of UPC to treat each shareholder on a fair and equal basis. Each Right
trades in tandem with the share of UPC Common Stock to which it relates until
the occurrence of certain events indicating a potential change in control of
UPC. Upon the occurrence of such an event, the Rights would separate from UPC
Common Stock and each holder of a Right (other than the potential acquirer)
would be entitled to purchase certain equity securities at prices below their
market value. UPC has authorized 250,000 shares of Series A Preferred Stock
for issuance under the Share Purchase Rights Plan, but no shares have been
issued as of the date of this Prospectus. Until a Right is exercised, the
holder thereof, as such, will have no rights as a shareholder of UPC, thus they
would have no right to vote or to receive dividends on these shares..
Provisions of the Tennessee Code. As a Tennessee corporation, UPC is
or could be subject to various legislative acts set forth in Chapter 35 of
Title 48 of the Tennessee Code, which imposes certain restrictions on business
combinations, including, but not limited to, combinations with interested
shareholders similar to those described above.
The Tennessee Business Combination Act (the "Tennessee BCA") generally
prohibits a "business combination" (generally defined to include mergers, share
exchanges, sales and leases of assets, issuances of securities, and similar
transactions) by UPC or a subsidiary with an "Interested Shareholder"
(generally defined as any person or entity which beneficially owns 10% or more
of the voting power of any class or series of UPC's stock then outstanding)
within five years after the person or entity becomes an Interested Shareholder
unless the business combination or the transaction pursuant to which the
Interested Shareholder became such was approved by the UPC Board before the
Interested Shareholder became such, and the business combination satisfies any
other applicable requirements imposed by law or by UPC's Charter or Bylaws.
The Tennessee BCA also severely limits the extent to which UPC or any of its
officers or directors could be held liable for resisting any business
combination.
The Tennessee Control Share Acquisition Act (the "Tennessee CSAA")
restricts the voting powers of shares acquired by a party once a specific level
of control is acquired, unless certain conditions are met. Specifically, the
Tennessee CSAA provides that "Control Shares" will not have the voting rights
to which they normally would be entitled unless approved by the other
shareholders at an annual or special meeting. "Control shares" are shares
that, in the absence of the Tennessee CSAA, would give the acquirer voting
power within any of the following ranges of all of the voting power of UPC: (i)
one-fifth or more but less than one-third; (ii) one-third or more but less than
a majority; or (iii) a majority or more.
The provisions described above might be deemed to make UPC less
attractive as a candidate for acquisition by another company than would
otherwise be the case in the absence of such provisions. For example, if
another company sought to acquire a controlling interest of less than 66 2/3%
of the outstanding shares of UPC Common Stock, the acquirer would not thereby
obtain the
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<PAGE> 48
ability to replace a majority of the UPC Board until at least the second annual
meeting of shareholders following the acquisition, and furthermore the acquirer
would not obtain the ability immediately to effect a merger, consolidation or
other similar business combination unless the described conditions were met.
As a result, UPC's shareholders may be deprived of opportunities to sell some
or all of their shares at prices that represent a premium over prevailing
market prices in a takeover context. The provisions described above also may
make it more difficult for UPC's shareholders to replace the UPC Board or
management, even if the holders of a majority of the UPC Common Stock should
believe that such replacement is in the interests of UPC. As a result, such
provisions may tend to perpetuate the incumbent UPC Board and management.
EFFECT OF MERGER ON RIGHTS OF STOCKHOLDERS
At the Effective Date of the Merger, stockholders of PBTC (except for
any PBTC stockholder who shall have effectively exercised his or her
dissenters' rights) automatically will become holders of the UPC Common Stock,
and their rights as holders of the UPC Common Stock will be determined by the
Tennessee Business Corporation Act and by UPC's Charter and Bylaws. The
following is a summary of the material differences in the rights of
shareholders of UPC and PBTC.
REMOVAL OF DIRECTORS
PBTC Directors may be removed with or without cause by the vote of a
majority of the stockholders entitled to vote at any meeting called for that
purpose.
UPC's bylaws provide that directors may be removed with or without
cause by vote of the holders of 66 2/3% or more of the outstanding shares
entitled to vote generally in the election of directors.
REQUIRED STOCKHOLDER VOTES
PBTC's Articles of Agreement and Incorporation ("Charter") and Bylaws
contain no provisions for more than a majority vote of all shares entitled to
vote on any particular matter that may be subjected to a stockholder vote,
unless the question is one upon which, by express provision of Arkansas law, a
larger or different vote is required, in which case the express statutory
provision shall govern. The UPC Charter provides that the vote of 66 2/3% or
more of the shares entitled to vote will be required to approve any merger or
consolidation of UPC with or into any other corporation or the sale, lease,
exchange or other disposition of substantially all of UPC's assets, if on the
date a binding agreement providing for such merger, sale or other disposition,
the corporation, person or entity into which UPC would be merged or to which
its assets would be sold is the beneficial owner of 10% or more of the
outstanding capital stock of UPC.
ELECTION OF DIRECTORS
PBTC's Bylaws provide for only one class of directors, and
stockholders are entitled to elect all of PBTC directors annually. Cumulative
voting for the election of directors is not permitted. The number of directors
may be fixed from time to time by a majority of the entire PBTC Board, but in
no event shall the number of directors be less than seven.
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UPC's bylaws provide for a classified board of directors consisting of
three classes with staggered terms of three years each. Therefore, UPC
shareholders are entitled to elect only one class, i.e., approximately
one-third of UPC's directors annually. The number of UPC directors shall be
not less than seven (7) nor more than twenty-five (25). To increase the number
of directors, 66 2/3% of the directors then in office must concur.
METHOD OF CASTING VOTES
Voting Rights. Except as provided by law or the UPC Charter, each
holder of UPC Common Stock shall have one vote on all matters voted upon by
shareholders in respect of each share of UPC Common Stock held. Holders of UPC
Common Stock do not have cumulative voting rights.
Arkansas Law provides that each common stockholder of a bank shall be
entitled to one vote for each share of stock held by him on each matter
submitted at a meeting of stockholders; provided, however, that in electing
directors, each stockholder shall have cumulative voting rights, i.e., he or
she shall be entitled to as many votes as shall equal the number of shares of
stock held multiplied by the number of directors to be elected, which votes may
be cast for one candidate or distributed among as many candidates as he or she
shall see fit. Cumulative voting rights are granted by Arkansas law, since the
PBTC Charter and Bylaws do not prohibit it, however cumulative voting is of
little practical value to the minority stockholders of PBTC due to the
ownership of 79.9% of the outstanding shares by the Stephens Family interests.
Reservation of Shares. Such number of shares of UPC Common Stock as
may from time to time be required for such purpose shall be reserved for
issuance (i) upon conversion of any shares of UPC Preferred Stock or any other
obligation of UPC convertible into shares of UPC Common Stock which shall be at
the time outstanding, and (ii) upon the exercise of any outstanding options or
warrants to purchase shares of UPC Common Stock.
PLANTERS BANK & TRUST COMPANY
GENERAL
Planters Bank & Trust Company is an Arkansas-chartered bank
headquartered in Forrest City, Arkansas. Its main office is located at 321
North Rosser in Forrest City, Arkansas 72335. At December 31, 1994, PBTC has
total assets of $59.0 million, total deposits of $52.2 million, and total
stockholders' equity of $6.6 million. For the year ended December 31, 1994,
PBTC earned $404,000.
PBTC offers traditional banking services including commercial,
consumer, and real estate loans, deposit accounts, and personal and corporate
trust services. PBTC has approximately 43 full-time-equivalent employees.
PBTC has been in operation in Forrest City since 1921. It opened
branches in DeValls Bluff and Cotton Plant in 1929. PBTC has one subsidiary,
Planters Investment Corporation, Inc. ("PICI") which engages in the business of
undertaking to realize the maximum value of certain assets of PBTC acquired by
foreclosure. At December 31, 1994, PICI had total assets of $364,000.
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Forrest City (population 13, 364) is the county seat of St. Francis
County (population 28,497). It is located approximately 44 miles west of
Memphis and 83 miles east of Little Rock on Interstate Highway 40, and 63 miles
south of Jonesboro on Arkansas State Highway 1.
Forrest City and St. Francis County have a diversified economy. While
agriculture remains the largest economic force, ten industries manufacturing
items such as men's and women's clothing, color television sets, hoisting
equipment, farm equipment, electric motors, heating and cooling equipment, and
liquid fertilizers have been attracted to the area in recent years.
Forrest City is served by the 118-bed Baptist Memorial Hospital
(affiliated with Baptist Memorial Hospital - Memphis), as well as East Arkansas
Community College and Crowley's Ridge Technical College.
Construction began in 1994 on the first phase of a $200-million
Federal Correction Complex outside of Forrest City. The complex will consist
of four levels of security, with a combined capacity of 3,400 inmates and 1,200
employees. This first phase of the complex is a low security facility. The
initial phase of the complex is expected to bring approximately 320 new
families into Forrest City.
LENDING ACTIVITIES
On December 31, 1994, based on the regulatory loan classification
system, PBTC's loan portfolio consisted of 51.1% in loans secured by real
estate, 24.5% in loans to individuals, and 14.1% in agricultural loans.
Composition of PBTC Loan Portfolio
At December 31, 1994
(Dollars in Thousands)
<TABLE>
<CAPTION>
Dec. 31 Percent of
REAL ESTATE LOANS: Amount Total
------- ----------
<S> <C> <C>
1-4 Family $ 6,601 25.4%
Commercial 5,473 21.1
Farmland 1,200 4.6
------- -----
Total real estate 13,274 51.1
Loans to individuals 6,371 24.5
Agricultural 3,669 14.1
Commercial and other 2,657 10.3
------- -----
TOTAL LOANS $25,971 100.0%
======= =====
</TABLE>
Real Estate Loans. Loans secured by real estate included
approximately $6.6 million of residential (1-4 family) mortgage loans of which
all but approximately $138 thousand were secured by first liens. Substantially
all of PBTC's residential real estate loans include balloon principal payments
with original maturities of one to four years. An additional $5.5 million of
real estate loans consisted of commercial real estate loans including
agribusiness and other commercial loans which are secured by real estate, and
an additional $1.2 million consisted of agribusiness loans secured by farmland.
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Loans to Individuals. These loans include personal lines of credit
and installment loans for automobiles and other expenditures.
Agricultural Production. Agricultural production loans amounted to
$3.7 million at December 31, 1994, representing approximately 14.1% of total
loans. Management considers both collateral values and cash flow analysis in
determining lending limits for its agricultural production loans.
Commercial and Other. Commercial and other loans amounted to $2.7
million or 10.3% of total loans at December 31, 1994. Commercial loans include
working capital loans and lines of credit to small businesses in PBTC's market
area.
PROPERTY
PBTC owns, free of any encumbrances, the property on which its main
office and branch offices are located. PBTC also holds from time to time real
estate acquired through foreclosure.
COMPETITION
PBTC competes with numerous other commercial banks and other financial
institutions in St Francis County, Prairie County, Woodruff County and
contiguous counties in Arkansas. There are other commercial banks, savings and
loan institutions, credit unions, mutual funds, investment companies and other
companies offering competing financial services in St Francis, Prairie and
Woodruff Counties and their contiguous counties.
LEGAL PROCEEDINGS
As of the date of this Prospectus, there are no significant legal
proceedings in process for PBTC.
MARKET PRICE OF PBTC COMMON STOCK
The PBTC Common Stock has no established trading market. There has
been no dividend declared by PBTC since December 31, 1993, when an annual
dividend of $2.25 per share was paid. PBTC's records reflect that since
December 31, 1993, there have been three transfers aggregating 120 shares of
PBTC Common Stock. Although PBTC maintains no records of the transaction
prices, Management is informed that the following sales occurred in 1994:
January 11 - 48 shares at $125.00 per share, February 8 - 32 shares at
approximately $150.00 per share and May 2 - 40 shares at $125.00 per share.
These transactions are believed to have taken place between unrelated parties.
All other transactions during the past three years are believed by Management
to have been sales to PBTC's major stockholders at $125.00 per share.
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CERTAIN BENEFICIAL HOLDERS OF PBTC COMMON STOCK
The following table sets forth certain information as of the Record
Date with respect to those known to PBTC to be beneficial owners of more than
five percent (5%) of the PBTC Common Stock.
<TABLE>
<CAPTION>
Name and Address of Number of % of
Beneficial Owner Shares Total
- ------------------ --------- -----
<S> <C> <C>
Jackson T. Stephens 9,759 40.66%
111 Center Street
Little Rock, Arkansas 72201
W.R. Stephens Trust (1) 7,132 29.72
111 Center Street
Little Rock, Arkansas 72201 ------ -----
TOTAL 16,891 70.38%
====== =====
_______________________
</TABLE>
(1) A trust established by the late W. R Stephens of which the Trustees
are Bess C. Stephens, Jackson T. Stephens and Vernon J. Giss.
(2) Related persons own approximately 2,286 shares of PBTC Common Stock
which are not reflected in the above table.
HOLDINGS OF PBTC COMMON STOCK BY PBTC MANAGEMENT
The following officers and directors of PBTC held the following
amounts and percentages of the outstanding PBTC Common Stock as of the Record
Date:
<TABLE>
<CAPTION>
Number of % of
Name Shares Total
- ---- -------- -----
<S> <C> <C>
J. C. Campbell 20 .08%
John V. Casbeer 30 .13
J.R Chappell 137 .57
Oral Edwards 158 .66
David M. Hardke 49 .20
Frankie L. Pratt 791 3.30
Rex B. Twist 249 1.04
----- ----
All Officers and Directors
as a group 1,434 5.98%
===== ====
</TABLE>
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PLANTERS BANK & TRUST COMPANY MANAGEMENT'S
DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and tabular data analyze major factors and trends
regarding the consolidated financial condition of Planters Bank & Trust Company
("PBTC") as of December 31, 1994 and 1993, and the consolidated results of
operations of PBTC for each of the years ended December 31, 1994 and 1993.
This discussion should be read in conjunction with the audited consolidated
financial statements and the notes thereto as of and for the year ended
December 31, 1994, and the unaudited consolidated financial statements and the
notes thereto as of December 31, 1993 and for the two years ended December 31,
1993 and 1992 as presented in Appendix A of this Prospectus and Proxy
Statement.
OVERVIEW
For a summary of selected consolidated financial data as of and for the
years ended December 31, 1990 through 1994, see page 10 of this Prospectus.
Since December 31, 1990, total assets have grown from $53 million to $59
million at December 31, 1994.
PBTC's net earnings for the year ended December 31, 1990 was $474,000,
representing the highest level of earnings for the five year period ended
December 31, 1994, and net earnings of $374,000 for the year ended December 31,
1993, which represents the lowest earnings for the same five year period.
Management expects modest growth to continue in both assets and earnings;
however, such growth is dependent upon the economies of the markets served by
PBTC, its relative competitiveness in its local market and other factors which
are discussed below. PBTC is headquartered in Forrest City, St. Francis
County, Arkansas.
RESULTS OF OPERATIONS FOR THE YEARS ENDED DECEMBER 31, 1994 AND 1993
Net Earnings - Net earnings for 1994 were $404,000, an increase of $30,000
over 1993 net earnings of $374,000. Earnings per share were $16.83 in 1994,
compared to $15.58 in 1993. A more detailed analysis of the components of net
earnings and the changes in such components is included under the appropriate
captions below.
The return on average assets for the year ended December 31, 1994 was .70%
compared to .67% for 1993. The return on average stockholders' equity for 1994
was 6.02% compared to 5.73% for the year ended December 31, 1993. PBTC had
neither declared nor paid dividends to common stockholders for the year ended
December 31, 1994. PBTC declared and paid dividends to stockholders of $54,000
($2.25 per share) for the year ended December 31, 1993.
Net Interest Income - Net interest income, the major component of PBTC's
income, is the amount by which interest and fees generated by earning assets
exceeds the total interest cost of funds used to carry them. Table 1 - Average
Balance Sheet and Interest Yields/Rates provides an analysis of net interest
income for the years ended December 31, 1994 and 1993.
Net interest income was $2.2 million for the year ended December 31, 1994
compared to $2.0 million for the year ended December 31, 1993. The fluctuation
in net interest income has arisen from
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a combination of increasing yields and rates combined with overall increases in
volumes on interest-bearing assets and liabilities. The increase in yields and
volumes on interest-bearing assets have increased at a greater pace than the
rates paid on interest- bearing liabilities.
Provision for Loan Losses - The allowance for loan losses has been, in the
opinion of management, maintained at a level sufficient to provide for losses
inherent in the loan portfolio. The level of provisions for loan losses is
based on past loan experience, growth and composition of the loan portfolio, as
well as current economic conditions. PBTC recorded no provision for loan
losses for years ended December 31, 1994 and 1993. PBTC experienced net
recoveries of $13,000 for the year ended December 31, 1994. For the year ended
December 31, 1993 gross charge-offs were equivalent to recoveries.
Table 5 which follows this discussion presents a Summary of Loan Loss
Experience for the years ended December 31, 1994 and 1993 while Table 4
presents Nonperforming Assets as of December 31, 1994 and 1993. The level of
nonperforming assets has decreased over the last year and management expects
continued decreases due to improvements in the loan portfolio. The loan to
deposit ratio decreased from 68.13% in 1990 to 49.76% in 1994 as the demand for
quality loans decreased and management worked on decreasing the levels of
nonperforming loans. Management expects future loan demand to remain fairly
constant at current levels. Future provisions for loan losses are dependent
upon various factors, including the economy, loan growth and composition,
levels of nonperforming assets and loan loss experience. The amounts of
nonperforming loans represent risks in the loan portfolio; however, a major
portion of such loans are collateralized to various degrees and should not be
interpreted as losses.
Noninterest Income - Noninterest income is primarily related to service
charges on deposits and other fees for services as well as net investment
securities gains and losses. Total noninterest income for 1994 was $521,000, a
$39,000 decrease from the $560,000 reported for 1993. The decrease is
primarily attributed to a $33,000 "other than temporary" write-down of an
investment security held in the available-for-sale portfolio resulting from
deteriorating credit conditions relative to the issuer. Other changes in
noninterest income from 1993 to 1994 were not attributable to any significant
individual items.
Management continues to seek new sources of noninterest income; however,
no significant growth or the maintenance of current levels of noninterest
income can be assured.
Noninterest Expense - Total noninterest expenses for 1994 were $2.19
million or $150,000 more than the $2.04 million reported for 1993. The overall
increase in noninterest expense from 1993 to 1994 is primarily attributable to
a $70,000 write-down of other real estate owned to its net realizable value in
1994. The remainder of the increase, as explained below, is not attributable
to any other significant individual items.
Salaries, wages and benefits totaled $992,000 for the year ended December
31, 1994 compared to $974,000 for the year ended December 31, 1993. Management
does not project any significant changes in the amount of these expenses.
Occupancy and equipment expense has remained fairly level for the last two
years. Occupancy and equipment expense totaled $463,000 for the year ended
December 31, 1994 compared to $427,000 for the year ended December 31, 1993.
The $36,000 increase from 1993 to 1994 is not attributable to any significant
individual items. Management does not expect any significant changes in the
amount of such expenses based on planned capital expenditures.
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Management continues to monitor the level of noninterest expenses to
identify cost reductions where applicable; however, no significant reductions
are expected.
Income Taxes - Income tax expense totaled $102,000 and $150,000 for the
years ended December 31, 1994 and 1993, respectively. These amounts represent
effective tax rates of 20% and 29% for the years ended December 31, 1994 and
1993. The decrease in the effective tax rate is a result of increased levels
of investment securities which generate tax-exempt income. Management expects
that future effective tax rates will remain at levels commensurate with that of
1994.
FINANCIAL CONDITION
Total assets have increased at December 31, 1994 to $59.0 million as
compared to $57.4 million at December 31, 1993. This increase was funded by an
increase in deposits of $1.8 million to $52.2 million at December 31, 1994 as
compared to $50.4 million at December 31, 1993.
Loans - Total loans, net of unearned income, at December 31, 1994 were
$26.0 million, compared to $25.7 million at December 31, 1993. Loans decreased
by $8.6 million from $34.3 million at December 31, 1992 to $25.7 million at
December 31, 1993. This decrease is attributable to a shifting of funds from
short-term investments in commercial paper and bankers acceptances (which are
classified as loans) to investment securities which increased by $8.8 million
during the same period. The composition of the portfolio has shifted towards
consumer loans and away from commercial and industrial loans. This shift is
driven by the economy of PBTC's market and is indicative of the trend seen
in the national economy. The loan volume is seasonal in nature due to the
large volume of agricultural loans. The peak lending period is usually in
August while the smallest volume of agricultural loans is usually in December,
when the loans are usually paid with proceeds from crop sales.
Table 3 - Loan Maturities sets forth the future maturities of loans as of
December 31, 1994.
Table 4 - Nonperforming Assets sets forth information on the nonperforming
loans within the loan portfolio at December 31, 1994 and 1993. Although the
amounts shown represent risks in the loan portfolio, the major portion of the
loans are collateralized to various degrees and should not be interpreted as
losses.
All potential problem loans have been disclosed in Table 4. Potential
problem loans are those loans about which management has obtained information
of possible credit problems of the borrower, resulting in serious doubts as to
the ability of the borrower to comply with the present loan repayment terms.
Allowance for Loan Losses - In determining the amount of the provisions
for loan losses and allowance for loan losses, management considers past loan
charge-offs, the level of past due and nonaccrual loans, the size and mix of
the portfolio, loan growth trends, adverse classifications at recent regulatory
examinations, general economic conditions in the market area, and a review of
individual loans to identify potential credit problems. The allowance for loan
losses is maintained at a level considered adequate by management to provide
for potential losses in the existing loan portfolio. In evaluating the
adequacy of the allowance, management makes certain estimates and assumptions
which are susceptible to change in the near term. While management uses
available information to recognize losses on loans, future additions to the
allowance may be necessary based upon changes in economic conditions.
Management believes the level of the allowances for loan losses is adequate in
relation to the size, mix and quality of the loan portfolio at December 31,
1994.
42
<PAGE> 56
Table 6 - Allocation of the Allowance for Loan Losses sets forth the
breakdown of the allowance for loan losses by loan category at December 31,
1994 and 1993. Management believes that the allowance can be allocated by
category only on an approximate basis. The allocation of the allowance to each
category is not necessarily indicative of future losses and does not restrict
the use of the allowance to absorb losses in any category.
Investment Securities - Investment securities totaled $21.1 million at
December 31, 1994, compared to $21.0 million at December 31, 1993. Investments
in securities are generally made as an alternative deployment of available
funds. Accordingly, the level of investment securities in the future and their
classification as-available-for-sale or held-to-maturity will depend on various
factors, including loan demand and management's ability to attract loans and
deposits.
As of December 31, 1994, the amortized cost of investment securities
exceeded the market value by $897,000, or 4.13%. Table 2 - Investment
Securities Portfolio Maturities and Yields provides an analysis of the
maturities and yields of the investment portfolio as of December 31, 1994.
Money Market Assets - Federal funds sold and interest-bearing deposits at
financial institutions totaled $5.9 million at December 31, 1994, compared to
$6.1 million at December 31, 1993, a decrease of approximately $200,000.
Generally, liquidity is high in December as the crop loans are repaid with
proceeds of the yearly production. In June, loan demand is high due to the
planting season. Accordingly, PBTC has the excess liquidity in December and
funds the loan demand in the spring and summer months with this excess
liquidity.
Foreclosed Assets - Foreclosed assets were $59,000 at December 31, 1994,
as compared to $129,000 at December 31, 1993. The decline is attributable to
the write-down of other real estate owned to its net realizable value. Sales
of other real estate owned during 1994 and 1993 resulted in gains of
approximately $39,000 and $13,000, respectively and generated sales proceeds of
$39,000 and $456,000, respectively.
Deposits - Average balances and average rates paid on deposits are
reflected in Table 1 - Average Balance Sheet and Interest Yields/Rates.
Customer deposits totaled $52.2 million as of December 31, 1994, a $1.8
million increase over total deposits of $50.4 million as of December 31, 1993.
While the level of deposits fluctuates daily, Table 1 indicates that average
deposit balances have remained fairly constant.
Included in deposits are $2.8 million and $3.0 million of time deposits
greater than or equal to $100,000 at December 31, 1994 and 1993, respectively.
At December 31, 1994, PBTC's loan to deposit ratio was 49.76%, compared to
51.10% at December 31, 1993.
Capital - Total stockholders' equity as of December 31, 1994 was $6.6
million, compared to $6.7 million at December 31, 1993. Net earnings for the
year ended December 31, 1994 were $404,000 which is offset by the SFAS No. 115
valuation allowance of $435,000 at December 31, 1994.
The key to continued growth and profitability of PBTC is to maintain
adequate levels of capital. The capital adequacy of a bank is determined based
upon the level of capital as well as asset quality, liquidity, earnings
history, and economic conditions. Management's goal is to maintain its bank in
the "well-capitalized" category for regulatory capital. At December 31, 1994,
PBTC was in this category.
43
<PAGE> 57
The regulatory capital guidelines divide capital into two tiers, Tier 1
capital and Tier 2 capital. Tier 1 capital of PBTC consists of stockholders'
equity excluding the unrealized loss on available-for-sale investment
securities. Tier 2 capital includes the allowance for loan losses with certain
limitations. In determining the risk-based capital requirements, assets are
assigned risk weights of zero to 100 percent, depending upon the regulatory
assigned levels of credit risk associated with such assets. Off-balance-sheet
items are included in the calculation of risk-adjusted assets through
conversion factors established by regulatory agencies.
At December 31, 1994, PBTC's Tier 1 and Total capital to risk-weighted
assets ratios were 21.19% and 22.44%, respectively, compared to 20.41% and
21.67%, respectively at year end 1993. The regulatory agencies require
"well-capitalized" institutions to have Tier 1 and Total capital ratios of 6%
and 10%, respectively.
In addition to the risk-based capital requirements, the regulatory
agencies have established leverage capital requirements. This ratio is
computed by dividing Tier 1 capital by unadjusted (not risk-weighted) quarterly
average total assets. PBTC's leverage ratio at December 31, 1994 was 12.33%
compared to 12.03% at year end 1993, and compared to the regulatory guideline
of 5% for "well- capitalized" institutions.
Liquidity and Asset/Liability Management - PBTC views liquidity and
asset/liability management as the ability to assure that funds are available to
support bank requirements, that is the ability to allow depositors ready access
to their monies and credit customers available funds to meet their credit
needs. It is also the process by which PBTC monitors and attempts to control
the mix and maturities of its assets and liabilities in order to maximize net
interest income. Management maintains balances of federal funds sold,
interest-bearing deposits at financial institutions and available-for-sale
investment securities in amounts it believes necessary to meet PBTC's daily
cash needs. With the available-for-sale investment securities portfolio,
management can, at their discretion, manage the liquidity and interest rate
risk of the Bank. Management does not foresee any particular matters which
might immediately threaten its ability to remain liquid.
PBTC is restricted under banking regulations as to the amount of dividends
that may be paid to stockholders. PBTC did not pay dividends in 1994 in
anticipation of the pending merger which is discussed in Note 14 to the
December 31, 1994 consolidated financial statements in Appendix A. During the
year ended December 31, 1993, PBTC paid cash dividends to stockholders totaling
$54,000. Note 8 to the December 31, 1994 consolidated financial statements of
PBTC provides a discussion of the restrictions upon PBTC's ability to pay
dividends to stockholders.
For the years ended December 31, 1994 and 1993, PBTC generated cash flows
from operating activities of $472,000 and $355,000, respectively. Management
expects future operating cash flows to be sufficient in amounts necessary to
allow PBTC to meet its obligations.
Sources and Uses of Funds - PBTC has a variety of sources of funds
available, but its primary source is the taking of deposits from customers,
both individual and business. PBTC's deposit acquisition strategy is to rely
on a core deposit base of demand deposits as well as savings and time deposits
under $100,000. Next, PBTC utilizes time deposits $100,000 and over and public
deposits for additional sources of funds. At December 31, 1994, the percentage
of time deposits $100,000 and over to total deposits was 5.35% compared to
6.02% at December 31, 1993. The acquisition of deposits are from customers,
individuals and businesses within PBTC's market area. The net increase in
deposits was $1.8 million in 1994 and $1.4 million in 1993. Management
believes that the rates
44
<PAGE> 58
offered for deposits are competitive with other financial institutions in
PBTC's market area. PBTC does not gather deposits through any brokered means.
PBTC also derives funds from maturities of investment securities, which
totaled $18.7 million and $19.5 million in 1994 and 1993, respectively.
PBTC's primary use of funds is the making of loans to customers. The loan
to deposit ratio of 49.76% at December 31, 1994 represented a 3% decrease in
the loan to deposit ratio of 51.10% at December 31, 1993. The table of PBTC
Selected Consolidated Financial Data on page 10 indicates that PBTC's overall
relative size of its loan portfolio has decreased as evidenced by the trend of
decline in the loan to deposit ratio. PBTC's loan portfolio is comprised of
loans to individuals and businesses secured by various collateral and in
certain circumstances the loans are extended on an unsecured basis. The
composition of the loan portfolio is presented in Notes 4 to the consolidated
financial statements at December 31, 1994 and 1993, respectively, in Appendix
A.
A secondary use of funds is the purchasing of debt securities for
investment purposes. During 1994, the investment portfolio averaged 44% of
total earning assets compared to 32% in 1993. Table 2 presents the composition
of the investment securities portfolio at December 31, 1994 with the average
yields and maturities of the portfolio. The portfolio is comprised of U.S.
Treasury obligations, obligations of U.S. Government Agencies, obligations of
states and local governments and other securities. While PBTC may continue to
upgrade or reposition the portfolio, management has not in the past nor does it
intend to in the future to trade securities for profit or to depend upon
securities gains as a regular source of income. At December 31, 1994, the
amortized cost of the investment portfolio exceeded the fair value by
approximately $897,000.
Effective January 1, 1994, PBTC adopted Statement of Financial Accounting
Standards ("SFAS") No. 115 Accounting for Certain Investments in Debt and
Equity Securities. The new standard addresses the accounting for investments
in equity securities that have readily determinable fair values and for all
investments in debt securities. The investment securities covered by this
standard are to be classified in one of three categories: (i) debt securities
for which the institution has a positive intent and ability to hold to maturity
are classified as "held-to-maturity" securities and reported at amortized cost;
(ii) debt and equity securities that are bought and held principally for the
purpose of selling them in the near term are classified as "trading securities"
and reported at fair value, with the unrealized gains and losses included in
earnings; and (iii) debt and equity securities not classified as either
held-to-maturity securities or trading securities are classified as
"available-for-sale" securities and reported at fair value, with unrealized
gains and losses excluded from earnings and reported net of deferred taxes as a
separate component of stockholders' equity.
In connection therewith, $17.2 million of securities were transferred to
the available-for-sale category at fair value, with a net unrealized loss of
$14,000, net of deferred income taxes, which was reflected as a separate
component of stockholders' equity. The remaining securities were classified as
held-to-maturity which will continue to be carried at amortized cost adjusted
for amortization of premiums and accretion of discounts. Management has the
intent and ability to hold until maturity those securities classified as such.
The initial adoption did not have any effect on the results of operations of
PBTC.
At December 31, 1994, PBTC's commitments to extend credit totaled $3.6
million. However, some commitments are expected to expire without being drawn
upon and may not result in cash requirements. Accordingly, management is of
the opinion that the sources of funds discussed above,
45
<PAGE> 59
together with the level of investment securities carried in the
available-for-sale portfolio, will be sufficient to enable PBTC to meet its
obligations as they arise and to fund future net growth.
Regulatory Assessments - PBTC is required to pay certain fees to the FDIC
and the Arkansas State Bank Department. The FDIC monitors risk-based capital
requirements and requires weaker institutions to pay higher deposit insurance
premiums, while allowing well-capitalized institutions to pay less. The
deposit insurance assessments currently range from 23 cents per $100 of
deposits for "well-capitalized" institutions to 31 cents for the weakest
institutions. These premiums are currently under review and it is expected
that the premium for Bank Insurance Fund institutions would decrease from 23
cents to 4 cents per $100 of deposits. For 1994, PBTC paid 23 cents per $100
of deposits and had $52.2 million of insured deposits as of December 31, 1994.
FDIC deposit insurance and regulatory assessments totaled $133,000 and
$139,000 for the years ended December 31, 1994 and 1993, respectively.
Effects of Inflation - A bank's asset and liability structure is primarily
monetary in nature, that is, fixed in terms of monetary amounts. Consequently,
the impact of inflation on a bank differs significantly from an industrial
company. Factors such as interest rates have a more significant impact on a
bank's performance than does general inflation. Interest rates do not
necessarily move in the same direction, or at the same magnitude, as the price
of other goods and services.
IMPACT OF ACCOUNTING STANDARDS TO BE ADOPTED
Financial Instruments - SFAS 107 requires disclosure regarding the market
value of financial instruments. SFAS 107 is effective for financial statements
issued for fiscal years ending after December 15, 1992 (calendar 1992
statements); however, for any entity with less than $150 million in assets
reported in the most recent balance sheet, the effective date is for financial
statements issued for fiscal years ending after December 15, 1995 (calendar
1995 statements). PBTC expects to adopt SFAS 107 prospectively in 1995.
Impairment of Loans - SFAS No. 114, Accounting by Creditors for Impairment
of a Loan (effective for fiscal years beginning after December 15, 1994), as
amended by SFAS No. 118, Accounting by Creditors for Impairment of a Loan -
Income Recognition and Disclosures, prescribes a valuation methodology for
impaired loans as defined by the standard. Generally a loan is considered
impaired if management believes that it is probable that all amounts due will
not be collected according to the contractual terms stipulated in the loan
agreement. An impaired loan must be valued using the present value of expected
future cash flows discounted at the loan's effective interest rate, the loan's
observable market price or fair value of the loan's underlying collateral.
PBTC will adopt SFAS No. 114 prospectively in 1995. It is anticipated that the
adoption of SFAS No. 114 will not have a material effect on PBTC's financial
condition, results of operations or liquidity.
46
<PAGE> 60
TABLE 1
AVERAGE BALANCE SHEET AND INTEREST YIELDS/RATES
(Dollars in thousands)
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31,
---------------------------------------------------------------------------
1994 1993
---------------------------------- -----------------------------------
AVERAGE YIELD/ AVERAGE YIELD/
BALANCE INTEREST RATE BALANCE INTEREST RATE
------- -------- ------ ------- -------- ------
<S> <C> <C> <C> <C> <C> <C>
ASSETS
Interest earning assets
Loans, net of unearned interest(1) $25,248 $2,066 8.18% $29,534 $2,180 7.38%
Taxable investment securities(3) 18,384 861 4.68 14,304 599 4.19
Nontaxable investment securities(2)(3) 4,777 215 4.50 2,056 99 4.82
Federal funds sold 3,905 151 3.87 3,764 110 2.92
Interest bearing deposits at financial
institutions 458 18 3.93 1,041 42 4.03
------- ------ ---- ------- ------ ----
Total interest earning assets 52,772 3,311 6.27 50,699 3,030 5.98
------- ------ ---- ------- ------ ----
Noninterest earning assets
Cash and due from banks 2,524 2,374
Premises and equipment 1,512 1,643
Other assets 1,115 1,301
Less allowance for loan losses (480) (469)
------- -------
Total assets $57,443 $55,548
======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY
Interest bearing liabilities
Money market accounts $ 9,013 $ 269 2.98% $ 7,986 $ 210 2.63%
NOW accounts 8,694 222 2.55 7,808 198 2.54
Savings deposits 6,183 157 2.54 5,906 149 2.52
Certificates of deposits of $100,000 and over 2,823 71 2.52 3,199 97 3.03
Other time deposits 10,778 412 3.82 11,874 373 3.14
Federal funds purchased 174 8 4.60 - - -
Other interest bearing liabilities 52 1 1.92 49 1 2.04
------- ------ ---- ------- ------ ----
Total interest bearing liabilities 37,717 1,140 3.02 36,822 1,028 2.79
------- ------ ---- ------- ------ ----
Noninterest bearing liabilities
Demand deposits 12,620 11,654
Other liabilities 399 541
Stockholders' equity 6,707 6,531
------- -------
Total liabilities and $57,443 $55,548
stockholders' equity ======= =======
NET INTEREST INCOME $2,171 $2,002
====== ======
NET YIELD ON INTEREST EARNING ASSETS 4.11% 3.95%
==== ====
</TABLE>
____________________________
(1) Nonaccruing loans are included in the daily average loan amount
outstanding and income on such loans, which are immaterial in amounts,
is recognized as received. Loan fees for both years are included in
the interest amounts for loans, but in each case were immaterial in
amount.
(2) These amounts have not been presented on a tax-equivalent basis.
(3) Yields are calculated on historical cost and exclude the impact of the
unrealized loss on available-for-sale investment securities.
47
<PAGE> 61
TABLE 2
INVESTMENT SECURITIES PORTFOLIO MATURITIES AND YIELDS
DECEMBER 31, 1994
(Dollars in thousands)
<TABLE>
<CAPTION>
Weighted
Book Value Average Yield(1)
---------- -------------
<S> <C> <C>
Available-for-Sale
- ------------------
U.S. Treasury securities:
Within one year $ 2,000 4.10%
One to five years 3,996 4.82
------- -----
5,996 4.58
U.S. Government Agency securities:
Within one year 3,998 5.63
One to five years 2,998 4.50
------- -----
6,996 5.15
Other securities:
One to five years 249 16.03
Mortgage-backed securities 3,547 5.56
------- -----
Total available-for-sale investments $16,788 5.20%
======= =====
Held-to-Maturity
- ----------------
Obligations of state and political subdivisions(1):
Within one year $ 6 5.00%
One to five years 2,969 4.24
Five to ten years 1,864 4.50
Over ten years 100 5.50
------- -----
Total held-to-maturity investments $ 4,939 4.36%
======= =====
</TABLE>
- -----------------------------------
(1) The average yield is not presented on a tax-equivalent basis.
TABLE 3
LOAN MATURITIES (1)
As of December 31, 1994
(Dollars in thousands)
<TABLE>
<S> <C>
Three months or less $ 6,140
After three months through one year 6,053
After one year through five years 13,469
After five years 309
----------
Total loans $ 25,971
==========
</TABLE>
- ----------------------------
(1) All loans have fixed maturity dates. Loans may be repriced at current
interest levels upon maturity provided there has been no deterioration
in the financial condition of the borrower.
TABLE 4
NONPERFORMING ASSETS
(Dollars in thousands)
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------
1994 1993
---- ----
<S> <C> <C>
Nonaccrual loans $596 $653
Other real estate owned and foreclosed assets 59 129
---- ----
Total nonperforming assets $655 $782
==== ====
Loans past due 90 days or more $193 $167
==== ====
</TABLE>
48
<PAGE> 62
TABLE 5
SUMMARY OF LOAN LOSS EXPERIENCE
(Dollars in thousands)
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------------
1994 1993
---- ----
<S> <C> <C>
Balance, January 1 $ 473 $ 473
Provision for loan losses - -
Loans charged off:
Commercial, agricultural and real estate (1) (76)
Installment loans to individuals (19) (14)
------- -------
Total charge-offs (20) (90)
------- -------
Recoveries:
Commercial, agricultural and real estate 20 68
Installment loans to individuals 13 22
------- -------
Total recoveries 33 90
------- -------
Net (charge-offs)/recoveries 13 0
------- -------
Balance, December 31, $ 486 $ 473
======= =======
Loans, net of unearned income:
Year end $25,971 $25,727
Average during year 25,248 29,534
Allowance for loan losses to year end loans, net
of unearned interest 1.87% 1.84%
Ratio of net charge-offs (recoveries) during
the year to average loans outstanding during the year (.05)% -
</TABLE>
TABLE 6
ALLOCATION OF THE ALLOWANCE FOR LOAN LOSSES
(Dollars in thousands)
<TABLE>
<CAPTION>
December 31, December 31,
1994 1993
------------ ------------
Amount % Amount %
------ --- ------ ---
<S> <C> <C> <C> <C>
Commercial and industrial $158 6.8% $153 11.9%
Real estate
Secured by single-family residential
properties 16 25.4 15 27.5
Construction, land development and
other commercial 6 21.1 5 17.5
Secured by farmland 6 4.6 6 5.7
Agricultural 228 14.1 217 12.8
Installment loans to individuals 64 24.5 71 20.4
Other loans 8 3.5 6 4.2
---- ---- ---- ----
Total $486 100% $473 100%
==== ==== ==== ====
</TABLE>
TABLE 7
TIME DEPOSIT MATURITIES $100,000 OR GREATER
As of December 31, 1994
(Dollars in thousands)
<TABLE>
<S> <C>
3 months or less $ 1,701
Over 3 months through 12 months 1,089
Over 12 months -
-------
Total $ 2,790
=======
</TABLE>
49
<PAGE> 63
VALIDITY OF UPC COMMON STOCK
The validity of the shares of UPC Common Stock offered hereby will be
passed upon by E. James House, Jr., Secretary and Manager of the Legal
Department of UPC. E. James House, Jr. is an officer of, and receives
compensation from UPC.
EXPERTS
The consolidated financial statements incorporated in this Prospectus
by reference to the Annual Report on Form 10-K of Union Planters Corporation
for the year ended December 31, 1994, have been so incorporated in reliance on
the report of Price Waterhouse LLP, independent accountants, given on the
authority of said firm as experts in auditing and accounting.
The consolidated financial statements of Planters Bank & Trust Company
as of December 31, 1994 and for the year then ended included in this Prospectus
have been so included in reliance on the report of Price Waterhouse LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
50
<PAGE> 64
UNION PLANTERS CORPORATION
INDEX TO APPENDICES
APPENDIX
NUMBER
- --------
A-1 -- Planters Bank & Trust Company Audited Consolidated Financial
Statements as of December 31, 1994 and for the year then ended.
A-2 -- Planters Bank & Trust Company Unaudited Consolidated Financial
Statements as of December 31, 1993 and for the two-year
period then ended.
B -- Agreement and Plan of Reorganization between Union Planters
Corporation, Planters Bank & Trust Company and First
Southern Bank dated as of February 10, 1995, together with
the related Merger Agreement annexed as Exhibit A thereto.
C -- Excerpt from the Arkansas Code of 1987 Annotated Section
23-32-506, as amended which provides for Stockholders'
Dissenters' Rights.
D -- Proposed CERTIFICATE OF AMENDMENT to the Articles of
Agreement and Incorporation of Planters Bank & Trust Company
by which the Merger would be implemented if approved.
51
<PAGE> 65
APPENDIX A-1
PLANTERS BANK & TRUST COMPANY
CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1994
<PAGE> 66
PLANTERS BANK & TRUST COMPANY
CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1994
<PAGE> 67
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders of
Planters Bank & Trust Company
In our opinion, the accompanying consolidated balance sheet and the related
consolidated statements of income, of changes in stockholders' equity and of
cash flows present fairly, in all material respects, the financial position of
Planters Bank & Trust Company and its subsidiary at December 31, 1994, and the
results of their operations and their cash flows for the year in conformity
with generally accepted accounting principles. These financial statements are
the responsibility of the Company's management; our responsibility is to
express an opinion on these financial statements based on our audit. We
conducted our audit of these statements in accordance with generally accepted
auditing standards which require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements, assessing
the accounting principles used and significant estimates made by management,
and evaluating the overall financial statement presentation. We believe that
our audit provides a reasonable basis for the opinion expressed above.
As discussed in Note 1 to the consolidated financial statements, the Company
changed its method of accounting for investment securities in 1994.
/s/ PRICE WATERHOUSE LLP
- ---------------------------
PRICE WATERHOUSE LLP
Memphis, Tennessee
March 17, 1995
<PAGE> 68
PLANTERS BANK & TRUST COMPANY
CONSOLIDATED BALANCE SHEET
DECEMBER 31, 1994
(DOLLARS IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
<S> <C>
ASSETS
- ------
Cash and due from banks $ 4,211
Federal funds sold 5,850
Interest-bearing deposits at financial institutions 99
Investment securities
Available-for-sale (Amortized cost: $16,788) 16,128
Held-to-maturity (Fair value: $4,702) 4,939
Loans, net of unearned interest 25,971
Less: Allowance for loan losses (486)
-----------
Net loans 25,485
Premises and equipment, net 1,438
Accrued interest receivable 644
Other real estate owned 59
Net deferred tax asset 51
Other assets 142
-----------
TOTAL ASSETS $ 59,046
===========
LIABILITIES AND STOCKHOLDERS' EQUITY
- ------------------------------------
Deposits
Noninterest-bearing $ 12,039
Certificates of deposit of $100,000 and over 2,790
Other interest-bearing, including NOW accounts of $9,287 37,360
-----------
Total deposits 52,189
Accrued interest payable 119
Other liabilities 89
-----------
TOTAL LIABILITIES 52,397
-----------
Commitments and contingent liabilities (Notes 4, 8, 13 and 14) -
Stockholders' equity
Common stock, $25 par value; 24,000 shares authorized,
issued and outstanding 600
Additional paid-in capital 2,900
Retained earnings 3,584
Net unrealized loss on available-for-sale investment securities (435)
-----------
TOTAL STOCKHOLDERS' EQUITY 6,649
-----------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 59,046
===========
</TABLE>
The accompanying notes are an integral part of these financial statements.
2
<PAGE> 69
PLANTERS BANK & TRUST COMPANY
CONSOLIDATED STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1994
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
<S> <C>
INTEREST INCOME
Loans, including fees and discounts $ 2,066
Investment securities
Taxable 861
Nontaxable 215
Federal funds sold 151
Interest-bearing deposits at financial institutions 18
-----------
Total interest income 3,311
-----------
INTEREST EXPENSE
Deposits 1,132
Other borrowings 8
-----------
Total interest expense 1,140
-----------
Net interest income 2,171
Provision for loan losses -
-----------
Net interest income after provision for loan losses 2,171
NONINTEREST INCOME
Service charges on deposit accounts 406
Investment securities losses, net (33)
Other 148
-----------
Total noninterest income 521
-----------
NONINTEREST EXPENSE
Salaries, wages and benefits 992
Occupancy and equipment 463
Other 731
-----------
Total noninterest expense 2,186
-----------
EARNINGS BEFORE INCOME TAXES 506
Income taxes 102
-----------
NET EARNINGS $ 404
===========
EARNINGS PER SHARE $ 16.83
===========
WEIGHTED AVERAGE COMMON SHARES OUTSTANDING 24,000
===========
</TABLE>
The accompanying notes are an integral part of these financial statements.
3
<PAGE> 70
PLANTERS BANK & TRUST COMPANY
CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
FOR THE YEAR ENDED DECEMBER 31, 1994
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
NET
UNREALIZED
LOSS ON
AVAILABLE-
ADDITIONAL FOR-SALE
COMMON PAID-IN RETAINED INVESTMENT
STOCK CAPITAL EARNINGS SECURITIES TOTAL
----- ------- -------- ---------- -----
<S> <C> <C> <C> <C> <C>
BALANCE AT JANUARY 1, 1994 $ 600 $ 2,900 $ 3,180 $ - $ 6,680
Cumulative effect of change
in accounting for investment
securities - - - (14) (14)
Net earnings - - 404 - 404
Change in net unrealized loss
on available-for-sale investment
securities - - - (421) (421)
------- --------- ------- ------- -------
BALANCE AT DECEMBER 31, 1994 $ 600 $ 2,900 $ 3,584 $ (435) $ 6,649
======= ========= ======= ======= =======
</TABLE>
The accompanying notes are an integral part of these financial statements.
4
<PAGE> 71
PLANTERS BANK & TRUST COMPANY
CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1994
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
<S> <C>
OPERATING ACTIVITIES
Net earnings $ 404
Adjustments to reconcile net earnings to net cash provided by operating activities:
Provision for losses on other real estate owned 70
Gains on sales of other real estate owned (39)
Investment securities losses, net 33
Net accretion (79)
Depreciation 215
(Increase) in assets:
Accrued interest receivable (140)
Other assets (20)
Increase in liabilities:
Accrued interest payable 24
Other liabilities 4
-------
Net cash provided by operating activities 472
-------
INVESTING ACTIVITIES
Net decrease in interest-bearing deposits at financial institutions 891
Purchases of available-for-sale investment securities (17,321)
Purchases of held-to-maturity investment securities (2,029)
Proceeds from maturities and repayment of available-for-sale investment securities 17,742
Proceeds from maturities and repayment of held-to-maturity investment securities 965
Net increase in loans (231)
Purchases of premises and equipment (87)
Proceeds from sales of premises and equipment 20
Proceeds from sales of other real estate owned 39
-------
Net cash used in investing activities (11)
-------
FINANCING ACTIVITIES
Net increase in deposits 1,839
-------
Net cash provided by financing activities 1,839
-------
CASH AND CASH EQUIVALENTS
Net increase 2,300
Beginning of year 7,761
-------
End of year $10,061
=======
SUPPLEMENTAL DISCLOSURES
Cash paid for interest $ 1,116
Cash paid for income taxes 118
Unrealized loss on available-for-sale investment securities 660
</TABLE>
The accompanying notes are an integral part of these financial statements.
5
<PAGE> 72
PLANTERS BANK & TRUST COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- -------------------------------------------------------------------------------
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The accounting and reporting policies of Planters Bank & Trust Company (the
"Bank") and its wholly-owned subsidiary, Planters Investment Corporation, Inc.
("PIC") conform with generally accepted accounting principles and general
practices of the banking industry. The Bank is subject to the regulations of
certain federal and state agencies and undergoes periodic examinations by those
regulatory agencies. The following is a description of the more significant
accounting policies:
BASIS OF PRESENTATION. The consolidated financial statements include the
accounts of the Bank and its subsidiary after elimination of significant
intercompany accounts and transactions.
STATEMENT OF CASH FLOWS. For purposes of reporting cash flows, cash and cash
equivalents include cash and due from banks and federal funds sold. Federal
funds are generally purchased and sold for one-day periods.
INVESTMENT SECURITIES. In May 1993, the Financial Accounting Standards Board
("FASB") issued Statement of Financial Accounting Standards ("SFAS") No. 115,
"Accounting for Certain Investments in Debt and Equity Securities", which is
effective for fiscal years beginning after December 15, 1993. This new
standard addresses the accounting for investments in equity securities that
have readily determinable fair values and for all investments in debt
securities. The investment securities covered by this standard are to be
classified into three categories: (i) debt securities for which the
institution has a positive intent and ability to hold to maturity are
classified as "held-to-maturity" securities and reported at amortized cost;
(ii) debt and equity securities that are bought and held principally for the
purpose of selling them in the near term are classified as "trading securities"
and reported at fair value, with unrealized gains and losses included in
earnings; and (iii) debt and equity securities not classified as either
held-to-maturity securities or trading securities are classified as
"available-for-sale" securities and reported at fair value, with unrealized
gains and losses excluded from earnings and reported net of deferred taxes as a
separate component of stockholders' equity.
Effective January 1, 1994, the Bank adopted SFAS No. 115 which resulted in
$17.2 million of securities transferred to the available- for-sale category
with the net unrealized loss of approximately $14,000, net of applicable
deferred income taxes, reflected as a separate component of stockholders'
equity. The remaining securities were classified as held-to-maturity which are
carried at amortized cost adjusted for amortization of premiums and accretion
of discounts which are recognized as adjustments to interest income on a basis
that approximates the constant yield method. The initial adoption of SFAS No.
115 did not have any effect on the results of operations of the Bank.
Gains and losses on investment securities are recorded when realized on a
specific identity basis or when, in the opinion of management, an unrealized
loss is other than temporary in nature. All investment securities transactions
are recorded using a method which approximates trade-date accounting.
6
<PAGE> 73
PLANTERS BANK & TRUST COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- -------------------------------------------------------------------------------
LOANS. Loans are stated at the principal amount outstanding. Interest income
on loans is accrued using a simple interest method on outstanding balances.
Loan origination fees and direct loan origination costs are recognized
currently as income and period costs, respectively, and do not vary materially
from the results that would be recorded using the deferral method prescribed by
SFAS No. 91, "Accounting for Nonrefundable Fees and Costs Associated with
Originating or Acquiring Loans and Initial Direct Costs of Leases."
Loans are generally placed on nonaccrual status and interest is not recorded
currently if payment in full of principal or interest is not expected or when
the payment of principal or interest is more than 90 days past due, unless it
is both well-secured and in the process of collection. Interest income
previously accrued is reversed at that time. Income recognition on installment
loans is discontinued and the loan is charged off if no payment is received
within 90 and 150 days, respectively.
In May 1993, the FASB issued SFAS No. 114, "Accounting by Creditors for
Impairment of a Loan", as amended by SFAS No. 118, "Accounting by Creditors for
Impairment of a Loan - Income Recognition and Disclosures", issued in October
1994, which is applicable to all creditors and loans. SFAS No. 114 addresses
the accounting for the impairment of loans, uncollateralized as well as
collateralized, except large groups of smaller-balance homogeneous loans (e.g.,
consumer and mortgage loans) that are collectively evaluated for impairment;
loans carried at fair value or at the lower of cost or fair value; leases; and
debt securities as defined by SFAS No. 115. Such impaired loans should be
measured based on the present value of expected future cash flows discounted at
the loan's effective interest rate or, as a practical expedient, at the loan's
observable market price or fair value of the underlying collateral if the loan
is collateral dependent. The Statement also applies to all loans that are
restructured in accordance with SFAS No. 15, "Accounting by Debtors and
Creditors for Troubled Debt Restructurings." This Statement applies to
financial statements for fiscal years beginning after December 15, 1994 with
earlier application encouraged. The Bank will adopt SFAS No. 114 prospectively
in 1995. It is anticipated that the adoption of SFAS No. 114 will not have a
material effect on the Bank's financial condition, results of operations or
liquidity.
ALLOWANCE FOR LOAN LOSSES. The allowance for loan losses represents
management's estimate of potential losses inherent in the existing loan
portfolio. The allowance for loan losses is increased by provisions for loan
losses charged to expense and reduced by loans charged off, net of recoveries.
Provisions for loan losses are determined based on management's evaluation of
past loan loss experience, current and anticipated economic conditions, the
level of classified and nonperforming loans, the composition and size of the
portfolio, reviews and evaluations of specific loans, and the results of
regulatory examinations. The allowance for loan losses is maintained at a
level considered adequate by management to provide for losses in the existing
loan portfolio. In evaluating the adequacy of the allowance, management makes
certain estimates and assumptions which are susceptible to change in the near
term. While management uses available information to recognize losses on
loans, future additions to the allowance may be necessary based on changes in
economic conditions.
7
<PAGE> 74
PLANTERS BANK & TRUST COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- -------------------------------------------------------------------------------
PREMISES AND EQUIPMENT. Premises and equipment are stated at cost, less
accumulated depreciation. Depreciation provisions are computed principally on
straight-line methods over the estimated useful lives of the assets (buildings
and improvements - 10 to 32 years; furniture and fixtures - 5 to 7 years).
OTHER REAL ESTATE. Other real estate represents real estate acquired through
foreclosure and is stated at the lower of the recorded amount of the loan or
the net realizable value (which approximates the fair value) of the underlying
real estate. Any losses at foreclosure are charged to the allowance for loan
losses. Any subsequent reduction is charged to expense.
INCOME TAXES. The Bank and PIC file consolidated federal and state income tax
returns. Deferred tax assets and liabilities are recognized for the future tax
consequences attributable to differences between the financial statement
carrying amounts of existing assets and liabilities and their respective tax
bases, and relate principally to the net unrealized loss on available-for-sale
investment securities and the cash basis of reporting for income tax purposes.
Deferred tax assets and liabilities are measured using enacted tax rates
expected to apply to taxable income in the years in which those temporary
differences are expected to be recovered or settled.
EARNINGS PER SHARE. Earnings per share amounts are based on the weighted
average common shares outstanding.
NOTE 2 - RESTRICTIONS ON CASH
The Bank is required by the Federal Reserve Bank to maintain average reserve
balances. The average required balance to be maintained for such purpose
during 1994 was approximately $536,000.
NOTE 3 - INVESTMENT SECURITIES
The amortized cost and fair value of investment securities at December 31, 1994
are summarized as follows (in thousands):
<TABLE>
<CAPTION>
UNREALIZED
AMORTIZED ---------- FAIR
COST GAINS LOSSES VALUE
-------- ----- ------ -------
<S> <C> <C> <C> <C>
Available-for-sale
U.S. Treasury securities $ 5,996 $ - $ 217 $ 5,779
Securities of U.S. Government agencies 6,996 - 203 6,793
Mortgage-backed and related securities 3,547 4 244 3,307
Other securities 249 - - 249
----------- -------- ------ -----------
Total available-for-sale $ 16,788 $ 4 $ 664 $ 16,128
=========== ======== ====== ===========
Held-to-maturity
Obligations of states and political subdivisions $ 4,939 $ 8 $ 245 $ 4,702
=========== ======== ====== ===========
</TABLE>
8
<PAGE> 75
PLANTERS BANK & TRUST COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- -------------------------------------------------------------------------------
The following table presents the maturities of investment securities classified
as available-for-sale at December 31, 1994 (in thousands):
<TABLE>
<CAPTION>
AMORTIZED FAIR
COST VALUE
-------- -------
<S> <C> <C>
Maturing within one year
U.S. Treasury securities $ 2,000 $ 1,970
Securities of U.S. Government agencies 3,998 3,968
----------- -----------
5,998 5,938
----------- -----------
Maturing after one year but within five years
U.S. Treasury securities 3,996 3,809
Securities of U.S. Government agencies 2,998 2,825
Other securities 249 249
----------- -----------
7,243 6,883
----------- -----------
Mortgage-backed and related securities 3,547 3,307
----------- -----------
$ 16,788 $ 16,128
=========== ===========
</TABLE>
Expected maturities of mortgage-backed and related securities will differ from
contractual maturities because borrowers have the right to call or prepay
obligations with or without call or prepayment penalties.
The following table presents the maturities of investment securities classified
as held-to-maturity at December 31, 1994 (in thousands):
<TABLE>
<CAPTION>
AMORTIZED FAIR
COST VALUE
---- -----
<S> <C> <C>
Obligations of state and political subdivisions
Maturing within one year $ 6 $ 6
Maturing after one year but within five years 2,969 2,851
Maturing after five years but within ten years 1,864 1,750
Maturing after ten years 100 95
----------- -----------
$ 4,939 $ 4,702
=========== ===========
</TABLE>
Investment securities with a carrying value of approximately $7.6 million at
December 31, 1994 were pledged to secure public and trust funds on deposit and
for other purposes as required or permitted by law.
At December 31, 1994, the Bank had invested in securities issued by the City of
Texarkana, Arkansas which represent approximately 11% of total stockholders'
equity. The investments have a carrying value of $750,000 and a fair value of
approximately $730,000.
9
<PAGE> 76
PLANTERS BANK & TRUST COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- -------------------------------------------------------------------------------
NOTE 4 - LOANS
Loans outstanding at December 31, 1994 are summarized as follows (in
thousands):
<TABLE>
<S> <C>
Commercial and industrial $ 1,777
Real estate
Secured by single-family residential properties 6,601
Construction, land development and other commercial 5,473
Secured by farmland 1,200
Agricultural 3,669
Installment loans to individuals 6,371
Other loans 880
-----------
Total loans $ 25,971
===========
</TABLE>
Nonperforming loans at December 31, 1994 are summarized as follows (in
thousands):
<TABLE>
<S> <C>
Nonaccrual loans $ 596
===========
Loans 90 days or more past due $ 193
===========
</TABLE>
There were no material outstanding unfunded commitments related to the above
nonperforming loans at December 31, 1994. Interest which would have been
earned under the original terms on nonaccrual loans did not materially differ
from that actually recorded.
CONCENTRATION OF CREDIT RISK. The Bank's lending activities are concentrated
in St. Francis, Monroe and Prairie Counties, Arkansas. The Bank's customers
are primarily agricultural related and have similar characteristics including
economic factors and activities. The loans are collateralized by various
security interests, including but not limited to crops, mortgages, equipment,
automobiles and deposits. In some instances loans are extended on an unsecured
basis.
FINANCIAL INSTRUMENTS. The Bank is a party to financial instruments with
off-balance-sheet credit risk in the normal course of business in order to meet
the financing needs of its customers. These financial instruments include
commitments to extend credit and letters of credit. These instruments involve,
to varying degrees, elements of credit risk and interest rate risk in excess of
the amounts recognized in the consolidated balance sheet. The Bank follows the
same credit policies in making commitments and contractual obligations as it
does for on-balance-sheet instruments. The contractual amounts of these
instruments reflect the extent of involvement the Bank has in particular
classes of financial instruments.
Off-balance-sheet contractual amounts at December 31, 1994 are as follows (in
thousands):
<TABLE>
<S> <C>
Commitments to extend credit $ 3,567
Standby, commercial and similar letters of credit 55
</TABLE>
10
<PAGE> 77
PLANTERS BANK & TRUST COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- -------------------------------------------------------------------------------
Commitments to extend credit are agreements to lend to customers as long as
there is no violation of any condition established in the contract.
Commitments generally have fixed expiration dates or other termination clauses
and may require payment of a fee. Since many of the commitments are expected
to expire without being drawn upon, the total commitment amounts do not
necessarily represent future cash requirements. The Bank evaluates each
customer's credit worthiness on a case-by-case basis, and the amount of
collateral required is determined based on management's credit evaluation of
the counterparty. Collateral held varies but may include accounts receivable,
inventory, property and equipment, income producing properties and securities.
Letters of credit are conditional commitments issued by the Bank to guarantee
the performance of a customer to a third party and are not reflected in the
Bank's financial statements. The credit risk involved in issuing letters of
credit is essentially the same as that involved in extending loan facilities to
customers. The Bank, in some cases, holds various types of collateral to
support those commitments for which collateral is deemed necessary. Letters of
credit outstanding at December 31, 1994 expire through December, 1995.
NOTE 5 - ALLOWANCE FOR LOAN LOSSES
The following summarizes the changes in the allowance for loan losses for the
year ended December 31, 1994 (in thousands):
<TABLE>
<S> <C>
Balance, January 1 $ 473
Provision for loan losses -
Recoveries of loans previously charged off 33
Amounts charged off (20)
----------
Balance, December 31 $ 486
==========
</TABLE>
NOTE 6 - PREMISES AND EQUIPMENT
A summary of premises and equipment at December 31, 1994 is as follows (in
thousands):
<TABLE>
<S> <C>
Land $ 217
Buildings and improvements 1,412
Furniture and fixtures 1,517
----------
3,146
Less accumulated depreciation 1,708
----------
Premises and equipment, net $ 1,438
==========
</TABLE>
11
<PAGE> 78
PLANTERS BANK & TRUST COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- -------------------------------------------------------------------------------
NOTE 7 - EMPLOYEE BENEFIT PLAN
The Bank maintains a defined contribution profit sharing plan (the "Plan")
which covers substantially all full-time employees. The Bank's annual
contributions to the Plan are discretionary and are determined by the Board of
Directors. During 1994, the Bank contributed $7,500 to the Plan.
NOTE 8 - DIVIDEND RESTRICTIONS
The amount of dividends which the Bank may pay to stockholders is limited by
applicable laws and regulations. The Bank is incorporated under the laws of
the state of Arkansas and may pay dividends only to the extent of their
unreserved and unrestricted additional paid-in capital and retained earnings.
The Federal Deposit Insurance Corporation ("FDIC"), the Bank's primary
regulator, imposes no dollar limit on dividends paid by state-chartered banks
but requires maintenance of certain capital levels. The Bank, at a minimum,
must maintain total risk-based capital greater than or equal to eight percent
(8%) of risk adjusted total assets (as defined). Under the current FDIC
capital guidelines, the Bank could pay approximately $4.1 million in dividends;
however, the Bank is also further restricted under state banking regulations
from paying dividends in any given year in excess of 50% of the current net
earnings of that year before obtaining regulatory approval which would limit
the Bank from paying additional dividends exceeding approximately $202,000
without regulatory approval. The above amounts may be paid but, as a practical
matter, other considerations, including past dividend levels, may affect
management's decision with respect to the payment of dividends.
Additionally, the Merger Agreement described in Note 14 restricts the amount of
dividends the Bank may pay to stockholders prior to the consummation of the
transaction.
NOTE 9 - OTHER NONINTEREST INCOME
Other noninterest income is summarized as follows (in thousands):
<TABLE>
<S> <C>
Gains on sales of other real estate owned $ 39
Other 109
----------
Total $ 148
==========
</TABLE>
NOTE 10 - OTHER NONINTEREST EXPENSE
Other noninterest expense is summarized as follows (in thousands):
<TABLE>
<S> <C>
FDIC insurance premiums and regulatory assessments $ 133
Stationery, supplies and postage 93
Provision for losses on other real estate owned 70
Directors fees 33
Other 402
----------
Total $ 731
==========
</TABLE>
12
<PAGE> 79
PLANTERS BANK & TRUST COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- -------------------------------------------------------------------------------
NOTE 11 - INCOME TAXES
The components of income tax expense for the year ended December 31, 1994 are
as follows (in thousands):
<TABLE>
<S> <C>
Current $ 102
Deferred -
----------
Income tax expense $ 102
==========
</TABLE>
The net deferred tax asset is comprised of the following at December 31, 1994
(in thousands):
<TABLE>
<S> <C>
Gross deferred tax assets:
Net unrealized loss on available-for-sale securities $ 225
Write-downs of other real estate owned 37
Write-down of investment securities 11
----------
Total deferred tax assets 273
----------
Gross deferred tax liabilities:
Cash basis for income tax purposes 149
Accumulated depreciation on premises and equipment 42
Allowance for loan losses 31
----------
Total deferred tax liabilities 222
----------
Net deferred tax asset $ 51
==========
</TABLE>
A reconciliation of the statutory federal income tax rate to the effective tax
rate for the year ended December 31, 1994 is as follows (dollars in thousands):
<TABLE>
<CAPTION>
% of
Pre-tax
Amount Income
------ -------
<S> <C> <C>
Computed "expected" tax $ 177 35%
Tax-exempt income, net of disallowed interest expense (73) (15)
Other (2) -
-------- ------
Income tax expense $ 102 20%
======== ======
</TABLE>
13
<PAGE> 80
PLANTERS BANK & TRUST COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- -------------------------------------------------------------------------------
NOTE 12 - RELATED PARTY TRANSACTIONS
The Bank had outstanding loans to executive officers, directors, and principal
stockholders and their affiliates totaling $40,000 at December 31, 1994.
During 1994, $100,000 in new loans were made and $146,000 repaid. These loans
were made on substantially the same terms, including interest rates and
collateral, as those prevailing at the time for comparable transactions with
unrelated persons. Management does not expect any losses from the outstanding
related party loans nor are any of these loans on nonaccrual status.
The Bank utilizes data processing software provided by an affiliate (affiliated
through common ownership). Fees of $19,000 were paid to this related party for
maintenance during 1994.
NOTE 13 - LEGAL PROCEEDINGS
The Bank is party to various legal proceedings which have arisen in the
ordinary course of business. Management is of the opinion that neither the
Bank's financial position, results of operations nor its liquidity will be
materially adversely affected by the ultimate resolution of these legal
proceedings.
NOTE 14 - PENDING MERGER
In March 1995, the Board of Directors of the Bank approved an Agreement and
Plan of Reorganization ("Merger Agreement") with another bank holding company
whereby the two parties intend to effectuate a merger of the Bank with and into
a subsidiary of the other bank holding company. The merger, which is intended
to be accounted for as a pooling of interests, is dependent upon the approval
of the stockholders of the Bank and various regulatory agencies. Additionally,
the Bank is restricted from certain activities prior to the consummation of the
transaction.
Upon consummation of the merger, the Bank will be required to pay financial
advisory fees of approximately $150,000 to an affiliate (affiliated through
common ownership) for services rendered as a financial advisor.
14
<PAGE> 81
APPENDIX A-2
PLANTERS BANK & TRUST COMPANY
UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1993 AND 1992
<PAGE> 82
PLANTERS BANK & TRUST COMPANY
UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1993 AND 1992
<PAGE> 83
PLANTERS BANK & TRUST COMPANY
UNAUDITED CONSOLIDATED BALANCE SHEET
DECEMBER 31, 1993
(DOLLARS IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
<S> <C>
ASSETS
- ------
Cash and due from banks $ 2,636
Federal funds sold 5,125
Interest-bearing deposits at financial institutions 990
Investment securities (Fair value: $21,092) 21,038
Loans, net of unearned interest 25,727
Less: Allowance for loan losses (473)
-----------
Net loans 25,254
Premises and equipment, net 1,585
Accrued interest receivable 504
Other real estate owned 129
Other assets 122
-----------
TOTAL ASSETS $ 57,383
===========
LIABILITIES AND STOCKHOLDERS' EQUITY
- ------------------------------------
Deposits
Noninterest-bearing $ 12,726
Certificates of deposit of $100,000 and over 3,030
Other interest-bearing, including NOW accounts of $10,380 34,594
-----------
Total deposits 50,350
Accrued interest payable 95
Deferred income taxes 173
Other liabilities 85
-----------
TOTAL LIABILITIES 50,703
-----------
Commitments and contingent liabilities (Notes 4 and 11) -
Stockholders' equity
Common stock, $25 par value; 24,000 shares authorized,
issued and outstanding 600
Additional paid-in capital 2,900
Retained earnings 3,180
-----------
TOTAL STOCKHOLDERS' EQUITY 6,680
-----------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 57,383
===========
</TABLE>
The accompanying notes are an integral part of these unaudited financial
statements.
1
<PAGE> 84
PLANTERS BANK & TRUST COMPANY
UNAUDITED CONSOLIDATED STATEMENT OF INCOME
FOR THE YEARS ENDED DECEMBER 31, 1993 AND 1992
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
DECEMBER 31,
------------
1993 1992
---- ----
<S> <C> <C>
INTEREST INCOME
Loans, including fees and discounts $ 2,180 $ 2,427
Investment securities
Taxable 599 740
Nontaxable 99 34
Federal funds sold 110 147
Interest-bearing deposits at financial institutions 42 9
----------- -----------
Total interest income 3,030 3,357
----------- -----------
INTEREST EXPENSE
Deposits 1,028 1,317
----------- -----------
Net interest income 2,002 2,040
Provision for loan losses - 34
----------- -----------
Net interest income after provision for loan losses 2,002 2,006
NONINTEREST INCOME
Service charges on deposit accounts 417 446
Investment securities gains, net 3 -
Other 140 295
----------- -----------
Total noninterest income 560 741
----------- -----------
NONINTEREST EXPENSE
Salaries, wages and benefits 974 1,000
Occupancy and equipment 427 470
Other 637 701
----------- -----------
Total noninterest expense 2,038 2,171
----------- -----------
EARNINGS BEFORE INCOME TAXES 524 576
Income taxes 150 189
----------- -----------
NET EARNINGS $ 374 $ 387
=========== ===========
EARNINGS PER SHARE $ 15.58 $ 16.13
=========== ===========
WEIGHTED AVERAGE COMMON SHARES OUTSTANDING 24,000 24,000
=========== ===========
</TABLE>
The accompanying notes are an integral part of these unaudited financial
statements.
2
<PAGE> 85
PLANTERS BANK & TRUST COMPANY
UNAUDITED CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31, 1993 AND 1992
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
ADDITIONAL
COMMON PAID-IN RETAINED
STOCK CAPITAL EARNINGS TOTAL
----- ------- -------- -----
<S> <C> <C> <C> <C>
BALANCE AT JANUARY 1, 1992 $ 600 $ 2,900 $ 2,527 $ 6,027
Net earnings - - 387 387
Cash dividends - $2.25 per share - - (54) (54)
-------- --------- --------- ---------
BALANCE AT DECEMBER 31, 1992 600 2,900 2,860 6,360
Net earnings - - 374 374
Cash dividends - $2.25 per share - - (54) (54)
-------- --------- --------- ---------
BALANCE AT DECEMBER 31, 1993 $ 600 $ 2,900 $ 3,180 $ 6,680
======== ========= ========= =========
</TABLE>
The accompanying notes are an integral part of these unaudited financial
statements.
3
<PAGE> 86
PLANTERS BANK & TRUST COMPANY
UNAUDITED CONSOLIDATED STATEMENT OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 1993 AND 1992
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
DECEMBER 31,
------------
1993 1992
---- ----
<S> <C> <C>
OPERATING ACTIVITIES
Net earnings $ 374 $ 387
Adjustments to reconcile net earnings to net cash
provided by operating activities:
Provision for loan losses - 34
Provision for losses on other real estate owned 63 25
Gains on sales of other real estate owned (13) (118)
Depreciation 208 199
Investment securities gains, net (3) -
Net accretion (124) (218)
Deferred income taxes 13 53
(Increase) decrease in assets:
Accrued interest receivable (132) 116
Other assets (62) (10)
Increase (decrease) in liabilities:
Accrued interest payable (15) (65)
Other liabilities 46 (56)
----------- -----------
Net cash provided by operating activities 355 347
----------- -----------
INVESTING ACTIVITIES
Net decrease (increase) in interest-bearing deposits at financial
institutions 1 (991)
Purchases of investment securities (28,334) (46,822)
Proceeds from sales of investment securities 72 -
Proceeds from maturities and repayments of investment securities 19,493 43,713
Net decrease in loans 8,446 1,103
Purchases of premises and equipment (145) (731)
Proceeds from sales of other real estate owned 456 162
----------- -----------
Net cash used in investing activities (11) (3,566)
----------- -----------
FINANCING ACTIVITIES
Net increase in deposits 1,408 79
Cash dividends paid (54) (54)
----------- -----------
Net cash provided by financing activities 1,354 25
----------- -----------
CASH AND CASH EQUIVALENTS
Net increase (decrease) 1,698 (3,194)
Beginning of year 6,063 9,257
----------- -----------
End of year $ 7,761 $ 6,063
=========== ===========
SUPPLEMENTAL DISCLOSURES
Cash paid for interest $ 1,043 $ 1,382
Cash paid for income taxes 126 191
Loans transferred to other real estate owned through foreclosure 237 13
</TABLE>
The accompanying notes are an integral part of these unaudited financial
statements.
4
<PAGE> 87
PLANTERS BANK & TRUST COMPANY
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The accounting and reporting policies of Planters Bank & Trust Company (the
"Bank") and its wholly-owned subsidiary, Planters Investment Corporation, Inc.
("PIC") conform with generally accepted accounting principles and general
practices of the banking industry. The Bank is subject to the regulations of
certain federal and state agencies and undergoes periodic examinations by those
regulatory agencies. The following is a description of the more significant of
those policies:
BASIS OF PRESENTATION. The consolidated financial statements include the
accounts of the Bank and its subsidiary after elimination of significant
intercompany accounts and transactions.
STATEMENT OF CASH FLOWS. For purposes of reporting cash flows, cash and cash
equivalents include cash and due from banks and federal funds sold. Federal
funds are generally purchased and sold for one-day periods.
INVESTMENT SECURITIES. Investment securities are stated at cost adjusted for
amortization of premiums and accretion of discounts, which are recognized as
adjustments to interest income on a basis that approximates the constant yield
method. Gains and losses on investment securities are recorded when realized
on a specific identity basis or when, in the opinion of management, an
unrealized loss is other than temporary in nature. All investment securities
transactions are recorded using a method which approximates trade-date
accounting. At December 31, 1993, management had the intent and ability to
hold all investment securities to maturity.
LOANS. Loans are stated at the principal amount outstanding. Interest income
on loans is accrued using a simple interest method on outstanding balances.
Loan origination fees and direct loan origination costs are recognized
currently as income and period costs, respectively, and do not vary materially
from the results that would be recorded using the deferral method prescribed by
Statement of Financial Accounting Standards ("SFAS") No. 91, "Accounting for
Nonrefundable Fees and Costs Associated with Originating or Acquiring Loans and
Initial Direct Costs of Leases."
Loans are generally placed on nonaccrual status and interest is not recorded
currently if payment in full of principal or interest is not expected or when
the payment of principal or interest is more than 90 days past due, unless it
is both well-secured and in the process of collection. Interest income
previously accrued is reversed at that time. Income recognition on installment
loans is discontinued and the loan is charged off if no payment is received
within 90 and 150 days, respectively.
5
<PAGE> 88
PLANTERS BANK & TRUST COMPANY
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
ALLOWANCE FOR LOAN LOSSES. The allowance for loan losses represents
management's estimate of potential losses inherent in the existing loan
portfolio. The allowance for loan losses is increased by provisions for loan
losses charged to expense and reduced by loans charged off, net of recoveries.
Provisions for loan losses are determined based on management's evaluation of
past loan loss experience, current and anticipated economic conditions, the
level of classified and nonperforming loans, the composition and size of the
portfolio, reviews and evaluations of specific loans, and the results of
regulatory examinations. The allowance for loan losses is maintained at a
level considered adequate by management to provide for losses in the existing
loan portfolio. In evaluating the adequacy of the allowance, management makes
certain estimates and assumptions which are susceptible to change in the near
term. While management uses available information to recognize losses on
loans, future additions to the allowance may be necessary based on changes in
economic conditions.
PREMISES AND EQUIPMENT. Premises and equipment are stated at cost, less
accumulated depreciation. Depreciation provisions are computed using the
straight-line method over the estimated useful lives of the assets (buildings
and improvements - 10 to 32 years; furniture and fixtures - 5 to 7 years).
OTHER REAL ESTATE. Other real estate represents real estate acquired through
foreclosure and is stated at the lower of the recorded amount of the loan or
the net realizable value (which approximates the fair value) of the underlying
real estate. Any losses at foreclosure are charged to the allowance for loan
losses. Any subsequent reduction is charged to expense.
INCOME TAXES. Effective January 1, 1993, the Bank adopted the provisions of
SFAS No. 109, "Accounting for Income Taxes" which did not have a material effect
on the results of operations of the Bank. SFAS No. 109 requires a change from
the deferred method of accounting for income taxes to the asset and liability
method. Under the asset and liability method, deferred tax assets and
liabilities are recognized for the future tax consequences attributable to
differences between the financial statement carrying amounts of existing assets
and liabilities and their respective tax bases, and relate principally to the
cash basis of reporting for income tax purposes and accumulated depreciation on
premises and equipment. Deferred tax assets and liabilities are measured using
enacted tax rates expected to apply to taxable income in the years in which
those temporary differences are expected to be recovered or settled. The Bank
and PIC file consolidated federal and state income tax returns.
EARNINGS PER SHARE. Earnings per share amounts are based on the weighted
average common shares outstanding.
NOTE 2 - RESTRICTIONS ON CASH
The Bank is required by the Federal Reserve Bank to maintain average reserve
balances. The average required balance to be maintained for such purpose
during 1993 was approximately $485,000.
6
<PAGE> 89
PLANTERS BANK & TRUST COMPANY
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 3 - INVESTMENT SECURITIES
The carrying value and fair value of investment securities at December 31, 1993
are summarized as follows (in thousands):
<TABLE>
<CAPTION>
UNREALIZED
AMORTIZED ------------------ FAIR
COST GAINS LOSSES VALUE
---- ----- ------ -----
<S> <C> <C> <C> <C>
U.S. Treasury Securities $ 4,000 $ 2 $ 3 $ 3,999
Securities of U.S. Government agencies 8,467 1 3 8,465
Obligations of states and political subdivisions 3,877 75 - 3,952
Mortgage-backed and related securities 4,421 16 34 4,403
Other securities 273 - - 273
----------- ------- -------- -----------
Total $ 21,038 $ 94 $ 40 $ 21,092
=========== ======= ======== ===========
</TABLE>
Investment securities with a carrying value of approximately $8.3 million at
December 31, 1993 were pledged to secure public and trust funds on deposit and
for other purposes as required or permitted by law.
NOTE 4 - LOANS
<TABLE>
<S> <C>
Loans outstanding at December 31, 1993 are summarized as follows (in thousands):
Commercial and industrial $ 3,070
Real estate
Secured by single-family residential properties 7,076
Construction, land development and other commercial 4,493
Secured by farmland 1,475
Agricultural 3,299
Installment loans to individuals 5,259
Other loans 1,055
-----------
Total loans $ 25,727
===========
Nonperforming loans at December 31, 1993 are summarized as follows (in thousands):
Nonaccrual loans $ 653
===========
Loans 90 days or more past due $ 167
===========
</TABLE>
7
<PAGE> 90
PLANTERS BANK & TRUST COMPANY
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
There were no material outstanding unfunded commitments related to the above
nonperforming loans at December 31, 1993. Interest which would have been
earned under the original terms on nonaccrual loans did not materially differ
from that actually recorded.
RELATED PARTY LENDING ACTIVITIES. The Bank had outstanding loans to executive
officers, directors, principal stockholders and their affiliates totaling
$86,000 at December 31, 1993. These loans were made on substantially the same
terms, including interest rates and collateral, as those prevailing at the time
for comparable transactions with unrelated persons. Management does not expect
any losses from these outstanding related party loans nor are any of these
loans on nonaccrual status.
CONCENTRATION OF CREDIT RISK. The Bank's lending activities are concentrated
in St. Francis, Monroe and Prairie Counties, Arkansas. The Bank's customers
are primarily agricultural related and have similar characteristics including
economic factors and activities. The loans are collateralized by various
security interests, including but not limited to crops, mortgages, equipment,
automobiles and deposits. In some instances loans are extended on an unsecured
basis.
FINANCIAL INSTRUMENTS. The Bank is a party to financial instruments with
off-balance-sheet credit risk in the normal course of business to meet the
financing needs of its customers. These financial instruments include
commitments to extend credit and letters of credit. These instruments involve,
to varying degrees, elements of credit risk and interest rate risk in excess of
the amounts recognized in the consolidated balance sheet. The Bank follows the
same credit policies in making commitments and contractual obligations as it
does for on-balance-sheet instruments. The contractual amounts of these
instruments reflect the extent of involvement the Bank has in particular
classes of financial instruments.
Off-balance-sheet contractual amounts at December 31, 1993 are as follows (in
thousands):
<TABLE>
<S> <C>
Commitments to extend credit $ 2,909
Standby, commercial and similar letters of credit 55
</TABLE>
Commitments to extend credit are agreements to lend to customers as long as
there is no violation of any condition established in the contract.
Commitments generally have fixed expiration dates or other termination clauses
and may require payment of a fee. Since many of the commitments are expected
to expire without being drawn upon, the total commitment amounts do not
necessarily represent future cash requirements. The Bank evaluates each
customer's credit worthiness on a case-by-case basis, and the amount of
collateral required is determined based on management's credit evaluation of
the counterparty. Collateral held varies but may include accounts receivable,
inventory, property and equipment, income-producing properties and securities.
8
<PAGE> 91
PLANTERS BANK & TRUST COMPANY
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
Letters of credit are conditional commitments issued by the Bank to guarantee
the performance of a customer to a third party and are not reflected in the
Bank's financial statements. The credit risk involved in issuing letters of
credit is essentially the same as that involved in extending loan facilities to
customers. The Bank, in some cases, holds various types of collateral to
support those commitments for which collateral is deemed necessary. Letters of
credit outstanding at December 31, 1993 expire through December, 1994.
NOTE 5 - ALLOWANCE FOR LOAN LOSSES
The following summarizes the changes in the allowance for loan losses for the
years ended December 31, 1993 and 1992 (in thousands):
<TABLE>
<CAPTION>
1993 1992
---- ----
<S> <C> <C>
Balance, January 1 $ 473 $ 526
Provision for loan losses - 34
Recoveries of loans previously charged off 90 84
Amounts charged off (90) (171)
----------- -----------
Balance, December 31 $ 473 $ 473
=========== ===========
</TABLE>
NOTE 6 - PREMISES AND EQUIPMENT
A summary of premises and equipment at December 31, 1993 is as follows (in
thousands):
<TABLE>
<S> <C>
Land $ 217
Buildings and improvements 1,412
Furniture and fixtures 1,459
-----------
3,088
Less accumulated depreciation 1,503
-----------
Premises and equipment, net $ 1,585
===========
</TABLE>
NOTE 7 - EMPLOYEE BENEFIT PLAN
The Bank maintains a defined contribution profit sharing plan (the "Plan")
which covers substantially all full-time employees. The Bank's annual
contributions to the Plan are discretionary and are determined by the Board of
Directors. During the years ended December 31, 1993 and 1992, the Bank
contributed $7,500 and $7,500 to the Plan, respectively.
9
<PAGE> 92
PLANTERS BANK & TRUST COMPANY
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 8 - OTHER NONINTEREST INCOME
Other noninterest income is summarized as follows (in thousands):
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
----------------
1993 1992
---- ----
<S> <C> <C>
Gains on sales of other real estate owned $ 13 $ 118
Other 127 177
------- --------
Total $ 140 $ 295
======= ========
</TABLE>
NOTE 9 - OTHER NONINTEREST EXPENSE
Other noninterest expense is summarized as follows (in thousands):
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
----------------
1993 1992
---- ----
<S> <C> <C>
FDIC insurance premiums and regulatory assessments $ 139 $ 132
Stationery, supplies and postage 86 121
Directors fees 46 45
Provision for losses on other real estate owned 63 25
Other 303 378
------- --------
Total $ 637 $ 701
======= ========
</TABLE>
NOTE 10 - INCOME TAXES
Effective January 1, 1993, the Bank adopted SFAS No. 109, "Accounting for Income
Taxes." Reference is made to Note 1 for further discussion of this accounting
change.
The components of income tax expense for 1993 and 1992 are as follows (in
thousands):
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
-------------------
1993 1992
---- ----
<S> <C> <C>
Current $ 137 $ 136
Deferred 13 53
----------- -----------
Income tax expense $ 150 $ 189
=========== ===========
</TABLE>
10
<PAGE> 93
PLANTERS BANK & TRUST COMPANY
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
The net deferred tax liability is comprised of the following at December 31,
1993 (in thousands):
<TABLE>
<S> <C>
Gross deferred tax asset:
Write-downs of other real estate owned $ 21
-----------
Gross deferred tax liabilities:
Allowance for loan losses 31
Accumulated depreciation on premises and equipment 36
Cash basis for income tax purposes 127
-----------
Total deferred tax liabilities 194
-----------
Net deferred tax liability $ 173
===========
</TABLE>
A reconciliation of the statutory federal income tax rate to the effective tax
rate for 1993 and 1992 is as follows (in thousands):
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------------
1993 1992
-------------------------------------------
% OF % OF
PRE-TAX PRE-TAX
AMOUNT INCOME AMOUNT INCOME
------ ------ ------ ------
<S> <C> <C> <C> <C>
Computed "expected" tax $ 183 35% $ 196 34%
Tax-exempt income, net of disallowed interest expense (32) (6) (12) (2)
Other (1) - 5 1
------ ----- -------- -----
Income tax expense $ 150 29% $ 189 33%
====== ===== ======== =====
</TABLE>
NOTE 11 - LEGAL PROCEEDINGS
The Bank is a party to various legal proceedings which have arisen in the
ordinary course of business. Management is of the opinion that neither the
Bank's financial position, results of operations nor its liquidity will be
materially adversely affected by the ultimate resolution of these legal
proceedings.
11
<PAGE> 94
APPENDIX B
AGREEMENT AND PLAN OF REORGANIZATION DATED AS OF FEBRUARY 10, 1995,
ALONG WITH THE MERGER AGREEMENT ANNEXED
AS EXHIBIT A THERETO
<PAGE> 95
AGREEMENT AND PLAN OF REORGANIZATION
DATED as of February 10, 1995
Between
UNION PLANTERS CORPORATION and
FIRST SOUTHERN BANK
and
PLANTERS BANK & TRUST COMPANY
<PAGE> 96
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
AGREEMENT AND PLAN OF REORGANIZATION . . . . . . . . . . . . . . . . . . . . . . 1
AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 1
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
-----------
ARTICLE 2
TERMS OF THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.1 The Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
----------
2.2 Articles of Incorporation, Bylaws, Directors, Officers and Name of the Resulting Bank . . . . . . . . . . . . . 8
-------------------------------------------------------------------------------------
(a) Articles of Incorporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
-------------------------
(b) Bylaws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
------
(c) Directors and Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
----------------------
(d) Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
----
2.3 Due Diligence Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
--------------------
2.4 Availability of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
---------------------------
2.5 UPC's Right to Revise the Structure of the Transaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
------------------------------------------------------
2.6 Holding Period of UPC Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
----------------------------------
2.7 PBTC Stock Options and Treasury Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
-------------------------------------
ARTICLE 3
DESCRIPTION OF TRANSACTION . . . . . . . . . . . . . . . . . . . . . . . . 11
3.1 Terms of the Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
-------------------
(a) Satisfaction of Conditions to Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
-------------------------------------
(b) Effective Time of the Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
----------------------------
(c) Conversion of Shares of FSB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
---------------------------
(d) Conversion and Cancellation of Shares of PBTC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
---------------------------------------------
(e) Conversion and Exchange of PBTC Shares; Exchange Ratio . . . . . . . . . . . . . . . . . . . . . . . . 12
------------------------------------------------------
(f) Mechanics of Payment of the Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
-----------------------------------------
(g) Stock Transfer Books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
--------------------
(h) Effects of the Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
---------------------
(i) Transfer of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
------------------
(j) Assumption of Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
-------------------------
(k) Dissenting Shareholders' Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
-------------------------------
(l) PBTC Stock Options and Treasury Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
-------------------------------------
3.2 Time and Place of Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
-------------------------
</TABLE>
i
<PAGE> 97
<TABLE>
<S> <C> <C>
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF UPC . . . . . . . . . . . . . . . . . . . . . 16
4.1 Organization and Corporate Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
------------------------------------
4.2 Authorization, Execution and Delivery; Reorganization Agreement Not in Breach . . . . . . . . . . . . . . . . . 17
-----------------------------------------------------------------------------
4.3 No Legal Bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
------------
4.4 Government Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
--------------------
4.5 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
--------------
4.6 UPC Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
------------------------
4.7 Exchange Act and Listing Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
--------------------------------
4.8 The UPC Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
--------------------
4.9 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
----------
4.10 Labor and Employment Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
----------------------------
4.11 Absence of Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
----------------------------------
4.12 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
----------
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PBTC . . . . . . . . . . . . . . . . . . . . . 22
5.1 Organization and Qualification of PBTC and Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
-------------------------------------------------------
5.2 Authorization, Execution and Delivery; Reorganization Agreement Not in Breach . . . . . . . . . . . . . . . . . 23
-----------------------------------------------------------------------------
5.3 No Legal Bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
------------
5.4 Government and Other Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
------------------------------
5.5 Compliance With Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
-------------------
5.6 Charter Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
-----------------
5.7 PBTC Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
-------------------------
5.8 Absence of Certain Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
--------------------------
5.9 Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
--------
5.10 Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
----------
5.11 PBTC Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
-----------------
5.12 Condition of Fixed Assets and Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
---------------------------------------
5.13 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
-----------
5.14 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
----------
5.15 Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
-------------------
5.16 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
---------
5.17 Labor and Employment Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
----------------------------
5.18 Records and Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
---------------------
5.19 Capitalization of PBTC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
----------------------
5.20 Sole Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
--------------
5.21 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
----------
5.22 Absence of Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
----------------------------------
5.23 Allowance for Possible Loan or ORE Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
-----------------------------------------
5.24 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
--------------------
5.25 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
----------------------
5.26 Material Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
------------------
5.27 Material Contract Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
--------------------------
5.28 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
-------
5.29 Statements True and Correct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
---------------------------
</TABLE>
ii
<PAGE> 98
<TABLE>
<S> <C> <C>
ARTICLE 6
COVENANTS OF UPC . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
6.1 Regulatory Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
--------------------
6.2 Conduct of Business -- Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
--------------------------------------------
6.3 Registration of UPC Common Stock under the Securities Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
----------------------------------------------------------
6.4 Employee Benefits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
-----------------
ARTICLE 7
COVENANTS OF PBTC . . . . . . . . . . . . . . . . . . . . . . . . . . 43
7.1 Proxy Statement; PBTC Shareholder Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
------------------------------------------
7.2 Conduct of Business -- Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
--------------------------------------------
7.3 Conduct of Business -- Negative Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
-----------------------------------------
ARTICLE 8
CONDITIONS TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . 48
8.1 Conditions to the Obligations of PBTC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
-------------------------------------
(a) Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
-----------
(b) Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
------------------------------
(c) Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
---------
(d) Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
-------------
(e) Opinion of UPC's and FSB' Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
---------------------------------
(f) Inspections Permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
---------------------
(g) No Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
--------------------------
8.2 Conditions to the Obligations of UPC and FSB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
--------------------------------------------
(a) Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
-----------
(b) Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
------------------------------
(c) Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
---------
(d) Destruction of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
-----------------------
(e) Inspections Permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
---------------------
(f) No Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
--------------------------
(g) Opinion of PBTC's Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
-------------------------
(h) Other Business Combinations, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
--------------------------------
(i) Maintenance of Certain Covenants, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
-------------------------------------
(j) Non-Compete Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
----------------------
(k) Receipt of Affiliate Letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
----------------------------
8.3 Conditions to Obligations of All Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
----------------------------------------
(a) No Pending or Threatened Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
-------------------------------
(b) Governmental Approvals and Acquiescence Obtained . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
------------------------------------------------
(c) Effective Registration Statement and No Stop Orders . . . . . . . . . . . . . . . . . . . . . . . . . . 55
---------------------------------------------------
(d) Tax Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
-----------
ARTICLE 9
TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
9.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
-----------
9.2 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
---------------------
</TABLE>
iii
<PAGE> 99
<TABLE>
<S> <C> <C>
ARTICLE 10
GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 58
10.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
-------
10.2 Assignability and Parties in Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
-------------------------------------
10.3 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
-------------
10.4 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
------------
10.5 Best Efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
------------
10.6 Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
---------
10.7 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
----------------
10.8 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
------------
10.9 Modifications, Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
-------------------------------------
10.10 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
--------------
10.11 Payment of Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
-------------------
10.13 Equitable Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
------------------
10.14 Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
---------------
10.15 Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
------------------------------------------
10.16 No Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
---------
10.17 Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
-------------------
</TABLE>
iv
<PAGE> 100
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Reorganization
Agreement") dated as of the 10th day of February, 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 a savings and loan holding company and whose principal offices are
located at 7130 Goodlett Farms Parkway, Memphis, Shelby County, Tennessee
38018; FIRST SOUTHERN BANK ("FSB"), an Arkansas state banking corporation
chartered and existing under the laws of the State of Arkansas whose principal
place of business is located at 801 Commerce Street (P. O. Box 248), Earle,
Crittenden County, Arkansas 72331 and a wholly-owned subsidiary of UPC; and
PLANTERS BANK & TRUST COMPANY ("PBTC"), a state banking corporation chartered
and existing under the laws of the State of Arkansas and whose principal
offices are located at 321 North Rosser (P. O. Box 1539), Forrest City, St.
Francis County, Arkansas 72335-1539.
UPC, FSB and PBTC are sometimes referred to herein as the "Parties."
RECITALS
A. PBTC desires to have itself acquired by UPC on the terms and
subject to the conditions set forth in this Reorganization Agreement and the
accompanying Merger Agreement (attached hereto as Exhibit A) (the "Merger
Agreement").
B. The Board of Directors of PBTC deems it desirable and in the
best interests of PBTC and the shareholders of PBTC (the "PBTC Shareholders")
that PBTC be merged with and into FSB (which would survive the merger) 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 Merger
Agreement.
C. The Boards of Directors of UPC and FSB deem it desirable and
in the best interests of UPC, FSB and the shareholders of UPC and FSB that PBTC
be merged with and into FSB on the terms and subject to the conditions set
forth in this Reorganization Agreement and in the manner provided in this
Reorganization Agreement and Merger Agreement.
D. The respective Boards of Directors of UPC, FSB and PBTC have
each adopted (or will each adopt) resolutions setting forth and adopting this
Reorganization Agreement and Merger Agreement,
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 1
<PAGE> 101
and have directed that this Reorganization Agreement and Merger Agreement and
all resolutions adopted by said Boards of Directors and by the PBTC
Shareholders 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 Federal Deposit Insurance
Corporation (the "FDIC"), the Arkansas State Bank Department (the "ASBD") and
such other regulatory agencies or authorities as may be necessary in order to
obtain all governmental authorizations required to consummate the proposed
Merger (as defined herein) in accordance with this Reorganization Agreement,
the Merger Agreement 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:
"AFFILIATE" of a party means any person, partnership,
corporation, association 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.
"ASBD" shall mean the Arkansas State Bank Department.
"ARKANSAS CODE" means the Arkansas Code Annotated, as amended.
"ARKANSAS COMMISSIONER" shall mean the Commissioner of the
Arkansas State Bank Department.
"BALANCE SHEET DATE" shall have the meaning assigned to such
term in Section 5.8 of this Reorganization Agreement.
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 2
<PAGE> 102
"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
by banks in Tennessee or Arkansas.
"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.
"CONSIDERATION" shall mean the value to be received by the
PBTC Record Holders in exchange for their PBTC 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 PBTC.
"EFFECTIVE DATE" 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 Merger Agreement 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, 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.
"FDIC" means the Federal Deposit Insurance Corporation.
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 3
<PAGE> 103
"FEDERAL RESERVE" shall mean the Board of Governors of the
Federal Reserve System and shall include the Federal Reserve Bank of St. Louis
acting under delegated authority.
"GAAP" shall mean generally accepted accounting principles,
consistently applied.
"GOVERNMENTAL APPROVALS" shall have the meaning assigned to
such term in Section 4.4 of this Reorganization Agreement.
"HAZARDOUS SUBSTANCES" shall have the meaning set forth in
Section 5.15(a) of this Reorganization Agreement.
"FSB" shall mean First Southern Bank, a state bank chartered
and existing under the laws of the State of Arkansas, having its principal
place of business located at 801 Commerce Street (P. O. Box 248), Earle,
Crittenden County, Arkansas 72331 and a wholly-owned subsidiary of UPC.
"FSB COMMON STOCK" shall have the meaning assigned to such
term in Section 3.1(c) of this Reorganization Agreement.
"INTERNAL REVENUE CODE" 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 PBTC with and into FSB, which
shall survive the Merger as the Resulting Bank.
"MERGER AGREEMENT" shall mean the Merger Agreement
substantially in the form of Exhibit A hereto to be executed by authorized
representatives of PBTC, UPC and FSB and filed with the ASBD and the
appropriate local authorities along with the Articles of Merger in accordance
with Section 23-32-503 of the Arkansas Code and providing for the Merger of the
Merger of PBTC with and into FSB as contemplated by Section 2.1 of this
Reorganization Agreement.
"NYSE" shall mean the New York Stock Exchange, or its
successor, upon which shares of the UPC Common Stock are listed for trading.
"1933 ACT" shall mean the Securities Act of 1933, as amended.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as
amended.
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 4
<PAGE> 104
"OFFICER" shall have the meaning set forth in Section 5.8(k)
of this Reorganization Agreement.
"PARTIES" shall mean UPC, FSB and PBTC collectively; UPC and
FSB on the one hand, or PBTC on the other hand, may sometimes be referred to as
a "PARTY."
"PBTC " means Planters Bank & Trust Company, a state bank
chartered and existing under the laws of the State of Arkansas, having its
principal place of business at 321 North Rosser (P. O. Box 1539), Forrest City,
St. Francis County, Arkansas 72335-1539;
"PBTC COMMON STOCK" has the meaning assigned to such term in
Section 3.1(d) of this Reorganization Agreement.
"PBTC COMPANIES" shall mean PBTC and all of its Subsidiaries.
"PBTC 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 PBTC or any PBTC Subsidiary, to or for the benefit of the officers,
directors or employees of PBTC or any PBTC Subsidiary.
"PBTC RECORD HOLDERS" means the holders of record of all of
the issued and outstanding shares of PBTC Common Stock immediately prior to the
Effective Time of the Merger.
"PBTC SHAREHOLDERS" shall have the meaning assigned to such
term in Recital B of this Reorganization Agreement.
"PBTC STOCK OPTIONS" shall have the meaning assigned to such
term in Section 3.1(l) of this Reorganization Agreement.
"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.
"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
PBTC to solicit proxies with a view to securing the
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 5
<PAGE> 105
approval of the PBTC Shareholders of this Reorganization Agreement and the
Merger Agreement.
"REALTY" means the real property of PBTC owned or leased by
PBTC or any Subsidiary of PBTC.
"RECORDS" means all available records, original instruments
and other documentation, pertaining to PBTC, PBTC's assets (including plans and
specifications relating to the Realty), PBTC's liabilities, the PBTC Common
Stock, the Deposits and the Loans, and all other business and financial records
which are necessary or customary for use in the conduct of PBTC's, business by
UPC and PBTC 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 ASBD, the FDIC, the SEC, or any other state or federal
governmental or quasi-governmental entity which has, or may hereafter have,
jurisdiction over 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 AGREEMENT" means this Agreement and Plan of
Reorganization together with the Merger Agreement (Exhibit A), and all Exhibits
and Schedules annexed to, and incorporated by specific reference as a part of,
this Reorganization Agreement.
"SEC" shall mean the Securities and Exchange Commission.
"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 Comptroller, the FDIC 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 the similar state
securities laws and any similar rules and regulations promulgated by the
applicable federal bank Regulatory Authorities.
"SHAREHOLDERS MEETING" shall mean the meeting of the PBTC
Shareholders to be held pursuant to Section 7.1 of this
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 6
<PAGE> 106
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 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.
"RESULTING BANK" shall mean FSB as the bank resulting from the
consummation of the Merger as set forth in Section 2.1 of this Reorganization
Agreement.
"UNAUDITED FINANCIAL STATEMENTS OF PBTC" shall have the
meaning assigned to such term in Section 5.7 of this Reorganization Agreement.
"UPC" shall mean Union Planters Corporation, a
Tennessee-chartered bank holding company which is also registered as a savings
and loan holding company having its principal place of business in Memphis,
Shelby County, Tennessee.
"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 and related consolidated statements of earnings, of
changes in shareholders' equity, and of cash flows (including related notes) of
UPC and its Subsidiaries as of December 31, 1992 and 1993 and each subsequent
December 31 prior to the Effective Time of the Merger, and (ii) the related
unaudited 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, 1994, 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.
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 7
<PAGE> 107
ARTICLE 2
TERMS OF THE MERGER
2.1 The Merger.
Subject to the satisfaction (or 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, PBTC shall be merged with and
into FSB (the "Merger"), which latter bank (the "Resulting Bank") shall survive
the Merger.
2.2 Articles of Incorporation, Bylaws, Directors,
Officers and Name of the Resulting Bank.
(a) Articles of Incorporation. Immediately after
the Effective Time of the Merger, the Articles of Incorporation of FSB, as in
effect immediately prior to the Effective Time of the Merger, shall continue to
constitute the Articles of Incorporation of FSB as the Resulting Bank, unless
and until the same shall be amended thereafter as provided by law and the terms
of such Articles of Incorporation.
(b) Bylaws. At the Effective Time of the Merger,
the Bylaws of FSB, as in effect immediately prior to the Effective Time of the
Merger, shall continue to be the Bylaws of FSB as the Resulting Bank, unless
and until amended or repealed as provided by law, its Articles of Incorporation
and such Bylaws.
(c) Directors and Officers. The directors and
officers of FSB in office immediately prior to the Effective Time of the Merger
shall continue to be the directors and officers of the Resulting Bank, to hold
office as provided in the Articles of Incorporation and Bylaws of the Resulting
Bank, 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. The name of FSB as the Resulting Bank
following the Merger shall remain unchanged and continue to be:
FIRST SOUTHERN BANK
2.3 Due Diligence Review. Each Party shall be entitled
to continue to conduct its due diligence review of the books, records and
operations of the other Party, including, but not limited to, a review of the
Party's loan portfolios, ORE and classified assets, investment portfolios and
properties, to verify the reasonableness of the Party's earnings projections,
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 8
<PAGE> 108
growth projections and sustained earnings prospects after consummation of the
Merger at reasonable growth rates.
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. Except as
expressly permitted by the disclosing Party, the receiving Party shall keep
confidential all non-public information received by the disclosing Party in
connection with the provisions of this Section 2.4 and as further provided for
in that certain Confidentiality Agreement dated September 2, 1994.
2.5 UPC's Right to Revise the Structure of the
Transaction. UPC shall have the right with the consent of the Board of
Directors of PBTC, which consent shall not be unreasonably withheld, to revise
the structure of the transaction 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 PBTC, to make any
revision to the structure of the transaction (i) which changes the amount of
the Consideration which the PBTC 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 effects of the transaction to
UPC or PBTC or the shareholders thereof, (iii) which 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), (iv) which might otherwise adversely financially
impact the interests of PBTC, or the PBTC Record Holders; provided, further,
that UPC shall not have the right to elect to treat the transaction as a
pooling of interest in the event the transaction should close subsequent to May
31, 1995. UPC may exercise this right of revision by giving written Notice to
PBTC 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. PBTC hereby
acknowledges and agrees that, in order for the Merger to qualify under the
Internal Revenue Code as a tax-free reorganization and
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 9
<PAGE> 109
for accounting purposes as a pooling of interests under the rules and
regulations promulgated by the SEC, Accounting Principles Board Opinion No. 16
and GAAP, any PBTC Record Holder who would be deemed an Affiliate of PBTC at
the time of Closing under the Securities Laws and who accepts shares of UPC
Common Stock as Consideration for the cancellation, exchange and conversion of
his shares of PBTC Common Stock pursuant to the terms and conditions of this
Reorganization Agreement, shall not pledge on a non- recourse basis, assign,
sell, transfer, devise, 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 PBTC Record Holder upon consummation of the
Merger, nor enter into any formal or informal agreement to pledge on a
non-recourse basis, assign, sell or transfer, devise, or otherwise alienate his
right, title and interests in any of the shares of UPC Common Stock to be
delivered by UPC to such PBTC Record Holder pursuant to the terms and
conditions of this Reorganization Agreement except in accordance with the
Securities Laws. PBTC further acknowledges and agrees that any UPC Common
Stock Certificates issued in connection with the Merger to PBTC Record Holders
who would be deemed Affiliates of PBTC or UPC at the time of Closing under the
Securities Laws shall be subject to and bear a restrictive legend substantially
in the form as follows:
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 IN
ACCORDANCE WITH THE REQUIREMENTS OF SEC RULES 144 AND 145 OR IS
OTHERWISE EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT.
2.7 PBTC Stock Options and Treasury Stock. As of the
date of this Reorganization Agreement, except as set forth on Schedule 2.7
hereto, there are no validly issued and outstanding options to purchase shares
of PBTC Common Stock; and no other options, rights, warrants, scrip or similar
rights to purchase shares of PBTC Common Stock (collectively, the "PBTC Stock
Options") are (or have been) issued and outstanding by PBTC. Except as set
forth on Schedule 2.7 hereto, at the Effective Time of the Merger, there will
be no issued and outstanding PBTC Stock Options. Except as set forth on
Schedule 2.7 hereto, as of the date of this Reorganization Agreement, PBTC has
not repurchased any shares of its capital stock. Except as set forth on
Schedule 2.7 hereto, as of the date of this Reorganization Agreement,
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 10
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there are no shares of PBTC Common Stock held by PBTC as Treasury Stock, nor
will there be any such shares at the Effective Time of the Merger.
ARTICLE 3
DESCRIPTION OF TRANSACTION
3.1 Terms of the Merger.
(a) Satisfaction of Conditions to Closing. After
the transactions contemplated herein have been approved by the shareholders of
PBTC and FSB, and each other condition to the obligations of the Parties hereto
has been satisfied or, if lawfully permitted, waived by the Party or Parties
entitled to the benefits thereof, other than those conditions which are to be
satisfied by delivery of documents by any Party to any other Party, a closing
(the "Closing") will 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 the
Merger and each Party will provide the other Parties with such proof or
indication of satisfaction of the conditions 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 have been satisfied or
lawfully waived by the Party entitled to the benefits thereof, the Parties
shall, at the Closing, duly execute Articles of Merger for filing with the ASBD
and the appropriate local authorities and immediately thereafter UPC shall file
or cause to be filed such Articles of Merger with the ASBD and the appropriate
local authorities, and FSB and PBTC shall take all steps necessary or desirable
to consummate the Merger in accordance with all applicable laws, rules and
regulations and the Merger Agreement 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
reasonably 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 on
the date and at the time of filing of Articles of Merger with the ASBD and the
appropriate local authorities or at such later date and/or time as may be
agreed upon by the Parties and set forth in the Articles of Merger so filed
(the "Effective Time of the Merger").
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 11
<PAGE> 111
(c) Conversion of Shares of FSB. At the
Effective Time of the Merger, each share of $10.00 par value common stock of
FSB (the "FSB Common Stock") 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, continue to be one share
of the issued and outstanding common stock of the Resulting Bank.
(d) Conversion and Cancellation of Shares of
PBTC. At the Effective Time of the Merger, each share of $25.00 par value
common stock of PBTC (the "PBTC Common Stock") 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,
except with respect to such shares of PBTC Common Stock as to which dissenters'
rights have been perfected and should remain perfected at the Effective Time of
the Merger.
(e) Conversion and Exchange of PBTC Shares;
Exchange Ratio. At the Effective Time of the Merger, the outstanding shares of
PBTC Common Stock held by the PBTC 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
PBTC and shall, except for those shares of PBTC Common Stock held and
registered in the name of any PBTC Record Holder who shall have perfected his
dissenters' rights and shall have continued such dissenting status through the
Effective Time of the Merger, automatically be converted exclusively into, and
constitute only the right of the PBTC Record Holders to receive in exchange for
their shares of PBTC Common Stock, whole shares of UPC Common Stock and a cash
payment in settlement of any remaining fractional share of UPC Common Stock in
accordance with the terms and conditions of 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 PBTC Record Holders pursuant to the
terms of this Reorganization Agreement are sometimes collectively referred to
herein as the "Consideration."
The number of shares of UPC Common Stock to be exchanged for each share of PBTC
Common Stock issued and outstanding immediately prior to the Effective Time of
the Merger (based on there being no more than 24,000 shares of PBTC Common
Stock issued and outstanding immediately prior to the Effective Time of the
Merger) shall be based on an exchange ratio (the "Exchange Ratio") as
determined and set forth in this Section 3.1(e). The Exchange Ratio shall be
fixed at 14.2163 shares of UPC Common Stock for each share of PBTC Common Stock
issued and outstanding
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 12
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at the Effective Time of the Merger; provided, however, in the event the Merger
should not have been consummated by April 30, 1995, UPC shall increase the
aggregate Consideration (and correspondingly the Exchange Ratio) to be
delivered to the PBTC Shareholders by an amount equal to $40,000 for each month
and prorated on a thirty (30) day basis for any partial month subsequent to
April 30, 1995, until the Closing Date, payable in cash or shares of UPC Common
Stock, at the election of UPC, based upon a value of $23.33 for one (1) full
share of UPC Common Stock.
The Exchange Ratio shall be based on an aggregate of no more than 24,000 shares
of PBTC Common Stock issued and outstanding immediately prior to the Effective
Time of the Merger; provided, however, that no fractional shares of UPC Common
Stock shall be issued and if, after aggregating all of the shares of UPC Common
Stock to which a PBTC Record Holder would be entitled based upon the Exchange
Ratio, there were a fractional share of UPC Common Stock remaining, such
fractional share shall be settled by a cash payment therefor based upon a value
of $23.33 for one (1) full share of UPC Common Stock.
(1) EFFECTS OF DISSENTERS' RIGHTS ON THE
EXCHANGE RATIO. Should PBTC Record Holders representing at least
seven percent (7%) of the shares of PBTC Common Stock issued and
outstanding at the time of Closing perfect such PBTC Record Holder's
dissenters' rights pursuant to the Arkansas Code and maintain the
perfected status of such dissenters' rights through the Closing Date,
UPC and FSB shall have the right, exercisable in their sole
discretion, to terminate this Reorganization Agreement, or with the
approval of the Board of Directors of PBTC reduce the number of shares
of UPC Common Stock to be delivered by UPC hereunder by an amount
sufficient to off-set against the Consideration any amounts paid, or
to be paid, by UPC in satisfaction of such dissenters' rights.
(2) EFFECT OF STOCK SPLITS, REVERSE STOCK
SPLITS, STOCK DIVIDENDS AND SIMILAR CHANGES IN THE CAPITAL OF UPC OR
PBTC. Should either UPC or PBTC effect any stock splits, reverse
stock splits, stock dividends or similar changes in their 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 proportionately in such a manner as the Board
of Directors of UPC and the Board of Directors of PBTC shall agree in
good faith to be fair and reasonable in order to give effect to such
changes.
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 13
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(f) Mechanics of Payment of the Consideration.
At the Closing and upon receipt of the proper submission of the certificate(s)
formerly representing and evidencing ownership of the shares of PBTC Common
Stock, the Exchange Agent shall, deliver to the former PBTC Shareholders in
exchange for the certificate(s) surrendered by them, the Consideration to be
paid for each such PBTC Shareholder's shares of PBTC 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 PBTC Common Stock of an PBTC 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 PBTC Record Holder's shares of PBTC 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 PBTC Record
Holder's PBTC Common Stock shall have been surrendered as provided above, the
Consideration payable to the PBTC Record Holder(s) of the cancelled shares as
of any time after the Effective Date shall not be paid to the PBTC Record
Holder(s) of such certificate(s) until such certificates shall have been
surrendered in the manner required. Each PBTC Shareholder will be responsible
for all federal, state and local taxes which may be incurred by him on account
of his receipt of the Consideration to be paid in the Merger. The PBTC Record
Holder(s) of any certificate(s) which shall have been lost or destroyed may
nevertheless, subject to the provisions of this Section, receive the
Consideration to which each such PBTC Record Holder is entitled, provided that
each such PBTC Record Holder shall deliver to UPC and to the Exchange Agent:
(i) a sworn statement certifying 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 has been duly executed by a corporate surety
satisfactory to UPC and the Exchange Agent, indemnifying the Resulting Bank,
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 PBTC Shareholder.
(g) Stock Transfer Books. At the Effective Time
of the Merger, the stock transfer books of PBTC shall be closed
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 14
<PAGE> 114
and no transfer of shares of PBTC Common Stock shall be made thereafter.
(h) Effects of the Merger. As of the Effective
Time of the Merger, the separate existence of PBTC shall cease, and PBTC shall
be merged with and into FSB which, as the Resulting Bank, shall thereupon and
thereafter possess all of the assets, rights, privileges, appointments, powers,
licenses, permits and franchises of the two merged corporations, whether of a
public or a private nature, and shall be subject to all of the liabilities,
restrictions, disabilities and duties of both PBTC and FSB.
(i) Transfer of Assets. At the Effective Time of
the Merger, all rights, assets, licenses, permits, franchises and interests of
PBTC and FSB 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 FSB as the Resulting Bank by virtue of the Merger becoming
effective and without any deed or other instrument or act of transfer
whatsoever.
(j) Assumption of Liabilities. At the Effective
Time of the Merger, the Resulting Bank shall become and be liable for all
debts, liabilities, obligations and contracts of PBTC as well as those of FSB,
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
PBTC or FSB.
(k) Dissenting Shareholders' Rights. Any PBTC
Record Holder of shares of PBTC Common Stock who shall comply strictly with the
provisions of Section 23-32-506 et seq. of the Arkansas Code, shall be entitled
to dissent from the Merger and to seek those appraisal remedies afforded by the
Arkansas Code. Such an PBTC Shareholder is referred to herein as an "PBTC
Dissenting Shareholder." However, UPC and FSB shall not be obligated to
consummate the Merger if PBTC Record Holders holding or controlling more than
seven percent (7%) of the shares of the PBTC 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 Arkansas Code and the perfected status of said dissenters'
rights shall have continued to the time of Closing.
(l) PBTC Stock Options and Treasury Stock. As of
the date of this Reorganization Agreement, except as set forth on Schedule 2.7
hereto, there are no options, rights, warrants, scrip or similar rights issued
and outstanding by PBTC to
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 15
<PAGE> 115
purchase shares of PBTC Common Stock (the "PBTC Stock Options"). Therefore,
except as set forth on Schedule 2.7 hereto, at the Effective Time of the Merger
there will be no issued or outstanding PBTC Stock Options. As of the date of
this Reorganization Agreement, except as set forth on Schedule 2.7 hereto,
there are no shares of PBTC Common Stock held by PBTC as Treasury Stock.
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 chief executive officers, presidents or chief
financial officers, may mutually agree (the "Closing Date"). The place of
Closing shall be at Union Planters Corporation, Administrative Center,
Executive Offices (Fourth Floor), 7130 Goodlett Farms Parkway, Memphis, Shelby
County, Tennessee 38018. The Closing may be held at such other time and place
as may be mutually agreed upon by the Parties.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF UPC
As of the date hereof and as of the Effective Time of the
Merger, UPC and FSB represent and warrant to PBTC as follows:
4.1 Organization and Corporate Authority. UPC and FSB
are corporations duly organized, validly existing and in good standing under
the laws of the State of Tennessee and the State of Arkansas, respectively, and
(i) have, in all material respects, all requisite corporate power and authority
to own, operate and lease their material properties and 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 federal,
state, local and foreign governmental authorizations, permits and licenses
necessary for them to own or lease their properties and assets and to carry on
their businesses as they are currently being conducted. Neither UPC nor FSB
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 government authority. The corporate
Charters and Bylaws of UPC and FSB, as amended to date, are in full force and
effect as of the date of this Reorganization Agreement.
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 16
<PAGE> 116
4.2 Authorization, Execution and Delivery; Reorganization
Agreement Not in Breach.
(a) UPC and FSB have all requisite corporate
power and authority to execute and deliver this Reorganization Agreement and
the Merger Agreement 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 FSB, have been (or upon
execution will have been) duly executed and delivered by UPC and/or FSB, 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 FSB and UPC's Board of Directors, no other corporate proceedings
on the part of UPC or FSB 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 FSB, 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) The execution and delivery of this
Reorganization Agreement and the Merger Agreement, the consummation of the
transactions contemplated hereby and thereby and the fulfillment of the terms
hereof and thereof will not result in a 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 FSB is a party or by which they or their property or
any of their assets are bound; the corporate Charter or Bylaws of UPC or the
Articles of Incorporation or Bylaws of FSB; or any material judgment, decree,
order, regulatory letter of understanding or award of any court, governmental
body, authority or arbitrator by which UPC or FSB is bound; or any material
permit, concession, grant, franchise, license, law, statute, ordinance, rule or
regulation applicable to UPC or FSB 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 FSB, except that the Government Approvals shall be
required in order for UPC or FSB to consummate the Merger.
4.3 No Legal Bar. Neither UPC nor FSB is a party to,
subject to or bound by any agreement, judgment, order, writ, letter of
understanding, prohibition, injunction or decree of any
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 17
<PAGE> 117
court or other governmental body of competent jurisdiction or any law which
would prevent the execution of this Reorganization Agreement or the Merger
Agreement by UPC or FSB, its delivery to PBTC or the consummation of the
transactions contemplated hereby and thereby, and no action or proceeding is
pending against UPC or FSB in which the validity of this Reorganization
Agreement, any of the transactions contemplated hereby or any action which has
been taken by any of the Parties in connection herewith or in connection with
any of the transactions contemplated hereby is at issue.
4.4 Government Approvals. No consent, approval, order or
authorization of, or registration, declaration or filing with, any federal,
state or local governmental authority is required to be made or obtained by UPC
or FSB in connection with the execution and delivery of this Reorganization
Agreement or the consummation of the transactions contemplated hereby by UPC or
FSB, 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 Federal Deposit Insurance
Corporation (the "FDIC") under the Bank Merger Act, as amended; and (c) the
prior approval of the Arkansas State Bank Department ("ASBD") under Section
23-32-506 et seq of the Arkansas Code and the regulations promulgated by the
ASBD thereunder (collectively, the "Government Approvals").
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 50,000,000 shares of common stock having a par
value of $5.00 per share (the "UPC Common Stock"). As of December 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 December 31, 1995, 40,179,474 shares of UPC
Common Stock were validly issued and outstanding.
Except as described in Schedule 4.5 hereto, UPC is the holder,
directly or indirectly, of all of the outstanding capital stock of its
Subsidiaries, except for director qualifying shares.
(b) The authorized capital stock of FSB consists of
100,000 shares of common stock having a par value of $10.00
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 18
<PAGE> 118
per share (the "FSB Common Stock") and no preferred stock. As of the date
hereof, FSB had issued all 100,000 shares of the authorized FSB Common Stock to
UPC. Therefore, UPC is the record holder and beneficial owner of all of the
FSB 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 PBTC true and complete copies of: (i)
UPC's audited Consolidated Financial Statements for the calendar years ended
December 31, 1992 and 1993 (as originally issued, but without giving effect to
subsequently effected business combinations accounted for as poolings of
interests); (ii) UPC's unaudited consolidated financial statements for each of
the calendar quarters ending in calendar year 1994 and thereafter, ending prior
to the Closing Date; and (iii) upon issuance thereof, UPC's audited
Consolidated Financial Statements for the calendar year ending December 31,
1994. 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 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. Since the date of the most recent SEC Document filed by UPC, UPC
has not suffered a material adverse change on its business, operations or
financial condition taken as a whole.
4.7 Exchange Act and Listing Filings.
(a) The outstanding shares of UPC Common Stock are registered with
the SEC pursuant to 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 filed with the NYSE all material forms and reports required by the
NYSE to be filed by UPC with the NYSE, 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
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 19
<PAGE> 119
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 PBTC Record Holders in exchange for
all of the PBTC 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 outstanding immediately prior to the
Effective Time of the Merger. Specifically, such shares shall be issued to
PBTC Record Holders pursuant to an effective registration statement of
appropriate form, and will be listed for trading on the NYSE.
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 UPC Subsidiary and that are not reflected
in the UPC Financial Statements or (ii) has been brought by or on behalf of any
employee employed or formerly employed by UPC or any UPC Subsidiary that would
have a material adverse impact on 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
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 20
<PAGE> 120
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 Subsidiary has any obligation
or liability (contingent or otherwise) that is material to the financial
condition or operations of UPC or any 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 UPC Subsidiary (i) except as disclosed in
the UPC Financial Statements delivered to PBTC 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. Except as
described in Schedule 4.11 hereto, since December 31, 1993, neither UPC nor any
UPC Subsidiary has incurred or paid any obligation or liability which would be
material to the financial condition or operations of UPC or such UPC
Subsidiary, 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 or any UPC Subsidiary.
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 21
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4.12 Disclosure. The information concerning, and the
representations or warranties made by UPC and FSB as set forth in this
Reorganization Agreement, or in any document, statement, certificate or other
writing furnished or to be furnished by UPC and FSB to PBTC pursuant hereto, do
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
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 PBTC by UPC and FSB pursuant hereto were or will be
complete and accurate copies of such documents.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PBTC
Both as of the date hereof and as of the Effective Time of the Merger,
PBTC represents and warrants to UPC and FSB as follows:
5.1 Organization and Qualification of PBTC and
Subsidiaries. PBTC is a state banking corporation duly organized, validly
existing and in good standing under the laws of the State of Arkansas and (a)
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; (b)
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 (c) engages only in
activities (and hold properties only of the types) permitted by the Arkansas
Code and the rules and regulations promulgated by the ASBD thereunder or the
FDIC for state banks. Each PBTC Subsidiary is duly chartered, validly existing
and in good standing under the laws of the state or jurisdiction of its
incorporation and (a) 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 (b) 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. PBTC and each of its Subsidiaries have in effect all federal,
state, local and foreign governmental authorizations, permits and licenses
necessary for them to own or lease their respective properties and assets and
to carry on their business as it is currently being conducted. PBTC's
deposit accounts are insured by the FDIC to the fullest extent permitted under
applicable law.
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5.2 Authorization, Execution and Delivery; Reorganization
Agreement Not in Breach.
(a) PBTC has all requisite power and authority to
execute and deliver this Reorganization Agreement and the Merger Agreement and
to consummate the transactions contemplated hereby and thereby. The execution
and delivery of this Reorganization Agreement and the Merger Agreement and the
consummation of the proposed transaction have been duly authorized by
majorities of the entire Board of Directors of PBTC and, except for the
approval of the PBTC Shareholders, no other corporate proceedings on the part
of PBTC are necessary to authorize the execution and delivery of this
Reorganization Agreement and the Merger Agreement 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
PBTC have been (or upon execution will have been) duly executed and delivered
by PBTC and constitute (or upon execution will constitute) legal, valid and
enforceable obligations of PBTC, subject, as to enforceability, to applicable
bankruptcy, insolvency, receivership, conservatorship, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and to the application of equitable principles and judicial
discretion.
(b) The execution and delivery of this
Reorganization Agreement and the Merger Agreement, the consummation of the
transaction contemplated hereby and thereby, and the fulfillment of the terms
hereof and thereof will not result in a violation or breach of any of the 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 PBTC or any PBTC Subsidiary is a party or by which PBTC or
any PBTC Subsidiary is bound; the Articles of Incorporation or Bylaws of PBTC;
or any material judgment, decree, order, regulatory letter of understanding or
award of any court, governmental body, authority or arbitrator by which PBTC or
any PBTC Subsidiary is bound; or any material permit, concession, grant,
franchise, license, law, statute, ordinance, rule or regulation applicable to
PBTC or any PBTC 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 PBTC or any PBTC Subsidiary, except that the
Governmental Approvals shall be required in order for PBTC or any PBTC
Subsidiary to consummate the Merger.
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 23
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5.3 No Legal Bar. PBTC is not a party to, or subject
to, or bound by, any agreement or judgment, order, letter of understanding,
writ, prohibition, injunction or decree of any court or other governmental
authority or body, or any law which would prevent the execution of this
Reorganization Agreement or the Merger Agreement by PBTC, the delivery thereof
to UPC and FSB, or the consummation of the transaction contemplated hereby and
thereby, and no action or proceeding is pending against PBTC in which the
validity of this Reorganization Agreement, the transaction contemplated hereby
or any action which has been taken by any of the Parties in connection herewith
or in connection with the transaction contemplated hereby is at issue.
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
PBTC in connection with the execution and delivery of this 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 which has granted rights to
PBTC in order to avoid forfeiture or impairment of such rights.
5.5 Compliance With Law. PBTC and all PBTC Subsidiaries
hold all licenses, franchises, permits and authorizations necessary for the
lawful conduct of their respective businesses, and PBTC, as the owner of the
Realty has 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 PBTC's properties or over any other part of PBTC'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 PBTC subsequent to the Closing of the transactions contemplated
herein without any consent or approval. Neither PBTC nor any PBTC 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
PBTC. The Articles of Incorporation and Bylaws of PBTC, as amended to date,
are in full force and effect.
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 24
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5.7 PBTC Financial Statements. Accompanying Schedule 5.7
hereto are true copies of the unaudited consolidated statements of condition of
PBTC as of December 31, 1994, and December 31, 1993, and the related statements
of income and changes in capital funds of PBTC for the years ended December 31,
1994, and 1993 (the "Unaudited Financial Statements of PBTC") and the
comparative interim (or annual) financial statements for any subsequent quarter
(or year) ending after December 31, 1994 and prior to the Closing Date. Except
as set forth in Schedule 5.7 hereto, such financial statements (i) were
prepared from the books and records of PBTC; (ii) were prepared in accordance
with generally accepted accounting principles consistently applied; (iii)
accurately present PBTC's financial condition and the results of its
operations, changes in stockholders' equity as at the relevant dates thereof
and for the periods covered thereby; (iv) do contain or reflect all necessary
adjustments and accruals for an accurate presentation of PBTC's financial
condition and the results of PBTC's operations and cash flows for the periods
covered by such financial statements; (v) do 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 adequate
provisions for all reasonably anticipated liabilities for Post Retirement
Benefits Other Than Pensions ("OPEB") pursuant to FASB 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 PBTC 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, operations, liquidity, income,
condition (financial or otherwise) or net worth of PBTC;
(c) any damage, destruction or loss, whether or
not covered by insurance, which has had or may have a material adverse effect
on any of the properties, business or prospects of PBTC or their future use and
operation by PBTC;
(d) any acquisition or disposition by PBTC of any
property or asset of PBTC, whether real or personal, having a fair market
value, singularly or in the aggregate, in an amount greater than Fifty Thousand
Dollars ($50,000), except in the ordinary course of business and in conformity
with past practice;
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 25
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(e) any mortgage, pledge or subjection to lien,
charge or encumbrance of any kind on any of the respective properties or assets
of PBTC, 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 PBTC, to which PBTC is a party which
would have a material adverse effect upon the financial condition or operations
of PBTC;
(g) any increase in, or commitment to increase,
the compensation payable or to become payable to any officer, director,
employee or agent of PBTC, 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 PBTC, 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 PBTC, or in the accounting policies
or practices therein reflected;
(j) any release or discharge of any material
obligation or liability of any person or entity related to or arising out of
any loan made by PBTC of any nature whatsoever, except in the ordinary course
of business and in conformity with past practice; or
(k) any loan (except credit card loans, passbook
loans or home loans) by PBTC to any Officer, director or 2% shareholder of PBTC
or any Affiliate of PBTC; or to any member of the immediate family of such
Officer, director or 2% shareholder of PBTC or any Affiliate of PBTC; 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,
"Officer" shall refer to a person who
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 26
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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. To the best of the knowledge, information
and belief of the management of PBTC, none of the PBTC Deposits 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 PBTC.
5.10 Properties. Except as described in Schedule 5.10 hereto
or adequately reserved against in the Unaudited Financial Statements of PBTC,
PBTC and each PBTC 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 Unaudited Financial Statements of PBTC as being owned by PBTC
or any PBTC Subsidiary as of the dates thereof. All buildings, and all
fixtures, equipment, and other property and assets that are material to the
business of PBTC and its Subsidiaries on a consolidated basis, held under
leases or subleases by PBTC or any PBTC 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 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 PBTC Companies provide adequate
coverage against loss, and the fidelity bonds in effect as to which any of the
PBTC Companies is a named insured are believed to be sufficient.
5.11 PBTC Subsidiaries. Schedule 5.11 hereto lists all of
the active and inactive PBTC Subsidiaries as of the date of this Reorganization
Agreement and describes generally the business activities conducted, or
permitted to be conducted, by each PBTC Subsidiary. No equity securities of
any of the PBTC Subsidiaries are or may become required to be issued (other
than to PBTC) 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 PBTC Subsidiary, and there are no contracts, commitments,
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 27
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understandings, or arrangements by which any PBTC Subsidiary is bound to issue
(other than to PBTC) any additional shares of its capital stock or options,
warrants, or rights to purchase or acquire any additional shares of its capital
stock. All of the shares of capital stock of each PBTC Subsidiary held by PBTC
or by any PBTC Subsidiary are fully paid and nonassessable and are owned by
PBTC or such PBTC 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 PBTC's fixed assets and
equipment having a net book value in excess of Twenty-Five Thousand Dollars
($25,000) included in the Fixed Assets is in sufficient 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 PBTC and each PBTC 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 litigation or matter in
controversy with respect to any taxes that might reasonably expected to result
in a determination materially adverse to PBTC or any PBTC Subsidiary except as
fully reserved for in the Unaudited Financial Statements of PBTC. All taxes,
interest, additions, and penalties due with respect to completed and settled
examinations or concluded litigation have been paid.
(b) Neither PBTC nor any PBTC 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 PBTC and all PBTC 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
Unaudited Financial Statements of PBTC, and have been made with respect to
periods ending after December 31, 1994.
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 28
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(d) Deferred taxes of PBTC and each PBTC Subsidiary
have been provided for in accordance with GAAP.
(e) To the best knowledge of PBTC, neither the
Internal Revenue Service nor any foreign, state, local or other taxing
authority is now asserting or threatening to assert against PBTC or any PBTC
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 PBTC 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 PBTC
or any PBTC Subsidiary, either have been paid in full, or have been properly
accrued and reflected in the Unaudited Financial Statements of PBTC 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 PBTC or any PBTC
Subsidiary, or to the best knowledge of PBTC threatened against or affecting
PBTC, any PBTC Subsidiary or any of their assets, before any court or
arbitrator or any governmental body, agency or official that (i) would be
reasonably expected to, if decided against PBTC or the PBTC Subsidiary, have a
material adverse impact on the business, properties, assets, liabilities,
condition (financial or other) or prospects of PBTC and that are not reflected
in the Unaudited Financial Statements of PBTC or (ii) has been brought by or on
behalf of any employee employed or formerly employed by PBTC or any PBTC
Subsidiary that would have a material adverse impact on PBTC or any PBTC
Subsidary.
5.15 Hazardous Materials. To the best of the knowledge,
information and belief of the management of PBTC, except as set forth in
Schedule 5.15 hereto:
(a) PBTC and all PBTC Subsidiaries have obtained
all permits, licenses and other authorizations which are required to be
obtained by PBTC 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 PBTC or any PBTC Subsidiary is
in compliance with the terms and conditions of all of such permits, licenses
and authorizations, and is also in 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,
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 29
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plan, order, decree, judgment, injunction, notice or demand letter issued,
entered, promulgated or approved thereunder, except as described in detail in
Schedule 5.15(a) 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 Arkansas Water and Air Pollution Control Act, Section 8-4-101 et seq. of
the Arkansas Code of 1987 Annotated; (n) the Arkansas Solid Waste Management
Act, Section 8-6-201 et seq. of the Arkansas Code of 1987 Annotated; (o) the
Hazardous Waste Management Act of 1979, Section 8-7-301 et seq. of the Arkansas
Code of 1987 Annotated; (p) the Arkansas Resource Reclamation Act of 1979,
Section 8-7-301 et seq. of the Arkansas Code of 1987 Annotated; (q) the
Emergency Response Fund Act, Section 8-7-401 et seq. of the Arkansas Code of
1987 Annotated; (r) Remedial Act Trust Fund Act, Section 8-7-501 et seq. of the
Arkansas Code of 1987 Annotated; (s) the Arkansas statute dealing with
Regulated Substance Storage Tanks, 8-7-801 et seq. of the Arkansas Code of 1987
Annotated; (t) the Petroleum Storage Tank Trust Fund Act, Sections 8-7-901 et
seq. of the Arkansas Code of 1987 Annotated; (u) any amendments to the
foregoing Acts as adopted from time to time on or before the Closing; and (v)
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
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 30
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jurisdiction over the Property of PBTC or any PBTC 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 PBTC or a
PBTC 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 5.1
5(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 PBTC or any PBTC Subsidiary to
have any permit, license or authorization required in connection with
the conduct of the business of PBTC or any PBTC 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 PBTC or any Affiliate of PBTC at the Property;
(ii) 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 PBTC's or any PBTC Subsidiary's occupancy
thereof, or during the occupancy thereof by any assignee or sublessee
of PBTC or any PBTC 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
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 31
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there are no underground storage tanks for Hazardous Substances,
active or abandoned, at any Property; and
(iv) No Hazardous Substances have been
Released 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 PBTC nor any Affiliate of PBTC 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, PBTC or any Affiliate of PBTC in violation of Applicable
Environmental Laws.
(e) No oral or written notification of a Release
of Hazardous Substances has been filed by or on behalf of PBTC or any Affiliate
of PBTC 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 PBTC, 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
PBTC or any Affiliate of PBTC in relation to any Property, which have not been
made available to UPC.
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 32
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(h) PBTC is not aware of any facts which might
suggest that PBTC or any PBTC Subsidiary has engaged in any management practice
with respect to any of its past or existing borrowers which could reasonably be
expected to subject PBTC or any PBTC 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 Corp., 901 F.2d 1550 (11th Cir. 1990).
5.16 Insurance. PBTC has paid all material amounts due
and payable under any insurance policies and guaranties applicable to PBTC or
PBTC's assets and operations; all such insurance policies and guaranties are in
full force and effect; and PBTC and all of PBTC's material Realty and other
material properties are insured against fire, casualty, theft, loss, and such
other events 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. To the best of the
knowledge, information and belief of the management of PBTC, except as
reflected in Schedule 5.17 hereto, there is no (i) collective bargaining
agreement or other labor agreement to which PBTC or any PBTC 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 PBTC or any PBTC
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 PBTC or any PBTC 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
PBTC nor any PBTC 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. PBTC and each PBTC 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 PBTC and each PBTC 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
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 33
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employees of PBTC and each PBTC Subsidiary and are not liable for any arrears
of wages, taxes, penalties or other sums for failure to comply with any of the
foregoing. There are no unfair labor practice complaint against PBTC or any
PBTC Subsidiary pending before the National Labor Relations Board or any state
or local agency; pending labor strike or other labor trouble affecting PBTC or
any PBTC Subsidiary; labor grievance pending against PBTC or any PBTC
Subsidiary; pending representation question respecting the employees of PBTC or
any PBTC Subsidiary; pending arbitration proceedings arising out of or under
any collective bargaining agreement to which PBTC or any PBTC Subsidiary is a
party; or to the best knowledge of PBTC, any basis for which a claim may be
made under any collective bargaining agreement to which PBTC or any PBTC
Subsidiary is a party.
5.18 Records and Documents. The Records of PBTC are and will
be sufficient to enable FSB to continue conducting PBTC's business as an
Arkansas state bank under similar standards as it has heretofore conducted such
business.
5.19 Capitalization of PBTC. The authorized capital
stock of PBTC consists of 24,000 shares of common stock having a par value of
$25.00 per share (the "PBTC Common Stock") and no shares of preferred stock or
any other class of equity security. As of the date of this Reorganization
Agreement, 24,000 shares of PBTC Common Stock were issued and outstanding and
no shares of PBTC Common Stock were held by PBTC as treasury stock. All of the
outstanding PBTC Common Stock is validly issued, fully-paid and nonassessable
and has not been issued in violation of any preemptive rights of any PBTC
Shareholder. Except as described in Section 3.1(l) 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
PBTC Common Stock or into any other equity or debt security of PBTC, and there
are no outstanding options, warrants, rights, scrip, rights to subscribe to,
calls or other commitments of any nature which would entitle the holder, upon
exercise thereof, to be issued PBTC Common Stock or any other equity or debt
security of PBTC. Accordingly, immediately prior to the Effective Time of the
Merger, there will be not more than 24,000 shares of PBTC Common Stock issued
and outstanding. Except as set forth in Schedule 5.19 hereto, PBTC owns and is
the beneficial record holder of, and has good and freely transferable title to,
all of the shares of capital stock in any PBTC Subsidiary.
5.20 Sole Agreement. With the exception of this
Reorganization Agreement, neither PBTC, nor any PBTC Subsidiary has been or is
a party to any letter of intent or agreement to merge, to consolidate, to sell
or purchase assets (other than in
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 34
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the normal course of its business) or to any other agreement which contemplates
the involvement of PBTC or any Subsidiary of PBTC (or any of their assets) in
any business combination of any kind; or any agreement obligating PBTC to issue
or sell or authorize the sale or transfer of PBTC Common Stock or the capital
stock of any PBTC Subsidiary. Except as described in Schedule 5.20 hereto,
there are no shares of capital stock or other equity securities of PBTC
outstanding, except for shares of PBTC Common Stock presently issued and
outstanding, and there are no 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 PBTC, or contracts, commitments, understandings, or
arrangements by which PBTC or 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 contracts, commitments,
understandings, or arrangements by which PBTC or any PBTC Subsidiary is or may
be bound to transfer or issue to any third party any shares of the capital
stock of any PBTC Subsidiary, and there are no contracts, agreements,
understandings or commitments relating to the right of PBTC to vote or to
dispose of any such shares.
5.21 Disclosure. The information concerning, and
representations and warranties made by, PBTC set forth in this Reorganization
Agreement, or in the Schedules of Exceptions of PBTC hereto, or in any
document, statement, certificate or other writing furnished or to be furnished
by PBTC to UPC and FSB 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 by PBTC
pursuant hereto were complete and accurate copies of such documents.
5.22 Absence of Undisclosed Liabilities. Except as described
in Schedule 5.22 hereto, neither PBTC nor any PBTC Subsidiary has any
obligation or liability (contingent or otherwise) that is material to the
financial condition or operations of PBTC or any PBTC Subsidiary, or that, when
combined with all similar obligations or liabilities, would be material to the
financial condition or operations of PBTC or any PBTC Subsidiary (i) except as
disclosed in the PBTC Financial Statements 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
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 35
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under this Reorganization Agreement. Since December 31, 1994, neither PBTC nor
any PBTC Subsidiary has incurred or paid any obligation or liability which
would be material to the financial condition or operations of PBTC or such PBTC
Subsidiary, 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 PBTC or any PBTC Subsidiary.
5.23 Allowance for Possible Loan or ORE Losses. The
allowance for possible loan losses shown on the consolidated Unaudited
Financial Statements of PBTC is adequate in all material respects to provide
for anticipated losses with respect to Loans outstanding or for 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 PBTC does not have any Loan which has been
criticized or classified by its bank examiners or by its independent auditors
in reports provided to the management of PBTC by such reviewing parties as
"Other Assets Especially Mentioned," "Substandard," "Doubtful" or "Loss" or as
a "Potential Problem Loan."
The allowance for possible losses on other real estate ("ORE") shown
on the consolidated Unaudited Financial Statements of PBTC 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 material
respects to provide for anticipated losses in ORE owned or held by PBTC or any
PBTC Subsidiary and the net book value of ORE on the Balance Sheet of Unaudited
Financial Statements of PBTC is the net realizable value of the ORE in
accordance with Statement of Position 92-3.
5.24 Compliance with Laws. To the best of PBTC's knowledge,
information and belief, except as described in Schedule 5.24 hereto, PBTC and
each PBTC 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 PBTC or any
PBTC Subsidiary, or which would or could reasonably be expected to subject PBTC
or any PBTC Subsidiary or any of its directors or officers to civil money
penalties; and
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 36
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(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 PBTC or any
PBTC 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 PBTC or any PBTC Subsidiary, (ii) threatening to
revoke any license, franchise, permit, or governmental authorization which is
material to the financial condition or operations of PBTC or any PBTC
Subsidiary, or (iii) requiring PBTC or any PBTC Subsidiary to enter into a
cease and desist order, consent, agreement, or memorandum of understanding.
5.25 Employee Benefit Plans. (a) PBTC has previously
provided to UPC true and complete copies of each "employee benefit plan," as
defined in ERISA, which, to the best of its knowledge, is subject to any
provision of ERISA and covers any employee, whether active or retired, of PBTC
or any PBTC Subsidiary, together with the most recent annual report (Form 5500
including, if applicable, Schedule B thereto) prepared in connection with any
such plan. Such plans are hereinafter referred to collectively as the
"Employee Plans", and each such Employee Plan is listed in Schedule 5.25(a)
hereto. Each Employee Plan which is intended to be qualified under Section
401(a) of the Internal Revenue Code, is so qualified. Except as disclosed in
Schedule 5.25(a) hereto, all Employee Plans were in effect for substantially
all of calendar year 1994 and there has been no material amendment thereof
(other than amendments required to comply with applicable law) or material
increase in the cost thereof or benefits thereunder on or after January 1,
1995.
(b) PBTC has furnished to UPC true and complete
copies and descriptions of each plan or arrangement maintained or otherwise
contributed to by PBTC or any PBTC Subsidiary which is not an Employee Plan and
which (exclusive of base salary and base wages) provides for any form of
current or deferred compensation, bonus, stock option, profit sharing, benefit,
retirement, incentive, group health or insurance, welfare plan (including, but
not limited to, "employee welfare benefit plans" as that term is defined in
ERISA), or similar plan or arrangement for the benefit of any employee or class
of employees, whether active or retired, of PBTC or any PBTC Subsidiary (such
plans and arrangements being collectively referred to herein as "Benefit
Arrangements" and all such Benefit Arrangements of PBTC and PBTC's Subsidiaries
are listed on Schedule 5.25(b) hereto). Except as disclosed in Schedule
5.25(b) hereto, there are no other Benefit Arrangements of the PBTC Companies
and all Benefit
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 37
<PAGE> 137
Arrangements which are in effect were in effect for substantially all of
calendar year 1994. Except as disclosed in Schedule 5.25(b) hereto or as was
required by applicable law, 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, and no material
increase in the base salary and wage levels of PBTC or any PBTC 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(b) hereto, there has been no material increase in the
compensation of or benefits payable to any senior executive employee of PBTC or
any PBTC Subsidiary since January 1, 1995, nor any employment, severance or
similar contract entered into with any such employee, nor any amendment to any
such contract, since January 1, 1995. Except as disclosed in Schedule 5.25(b)
hereto, there is no contract, agreement or Benefit Arrangement covering any
employee of PBTC or any PBTC 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 280(G) of the Internal
Revenue Code.
(c) With respect to all Employee Plans and Benefit
Arrangements, PBTC and each PBTC Subsidiary are in substantial compliance with
the requirements prescribed by any and all statutes, governmental or court
orders, or rules or regulations currently in effect, including but not limited
to ERISA and the Internal Revenue Code, applicable to such Employee Plans or
Benefit Arrangements. No condition exists that could constitute grounds for
the termination of any Employee Plan under Section 4042 of ERISA; no
"prohibited transaction," as defined in Section 406 of ERISA and Section 4975
of the Internal Revenue Code, has occurred with respect to any Employee Plan,
or any other employee benefit plan maintained by PBTC or any PBTC Subsidiary
which is covered by Title I of ERISA, which could subject any person (other
than a person for whom neither PBTC nor any PBTC Subsidiary is directly or
indirectly responsible) to liability under Title I of ERISA or to the
imposition of any tax under Section 4975 of the Internal Revenue Code which
could have an adverse effect on the business, assets, financial condition,
results of operations or prospects of any PBTC Company; no Employee Plan
subject to Part III of Subtitle B of Title I of ERISA or Section 412 of the
Internal Revenue Code, or both, has incurred any "accumulated funding
deficiency," as defined in Section 412 of the Code, whether or not waived;
neither PBTC nor any PBTC Subsidiary has failed to make any contribution or pay
any amount due and owing as required by the terms of any Employee Plan or
Benefit Arrangement; no Benefit Arrangement has incurred,
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 38
<PAGE> 138
nor does any Benefit Arrangement have, any unfunded plan liabilities, whether
or not waived; neither PBTC nor any PBTC Subsidiary has incurred or expects to
incur, directly or indirectly, any liability under Title IV of ERISA arising in
connection with the termination of, or a complete or partial withdrawal from,
any plan covered or previously covered by Title IV of ERISA which could
constitute a liability of UPC or any of its Affiliates (including PBTC or any
PBTC Subsidiary) at or after the Effective Time of the Merger. Except as
disclosed in Schedule 5.25(c) hereto, to the best knowledge, information and
belief of PBTC, no condition exists that could subject any person (other than a
person for whom neither PBTC nor any PBTC Subsidiary is directly or indirectly
responsible) to liabilities, damages, losses, taxes or sanctions that arise
under Sections 106(b), 162(i) and 4980B of the Internal Revenue Code or
Sections 601 through 608 of ERISA for failure to comply with the continuation
health care coverage requirements of Sections 162(k) and 4980B of the Internal
Revenue Code with respect to any current or former employee, including their
beneficiaries, of PBTC or any PBTC Subsidiary.
(d) Except as described in Schedule 5.25(d) hereto,
each Employee 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 can be terminated by
PBTC (or by FSB as the Resulting Bank) within a period of 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. Any
amounts representing or attributable to overfunding for a PBTC defined benefit
plan may be returned to PBTC or any PBTC Subsidiary in accordance with the
respective plan's arrangements as described in the respective plan's organic
documents.
5.26 Material Contracts. Except as reflected in the PBTC
Financial Statements, or as described in Schedule 5.26 hereto, neither PBTC nor
any PBTC 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 PBTC 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
PBTC as of the date of this Reorganization Agreement.
5.27 Material Contract Defaults. To the best of the
knowledge, information and belief of the management of PBTC, neither PBTC nor
any PBTC Subsidiary is in default in any respect
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 39
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under any material 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,
and which default is reasonably expected to have either individually or in the
aggregate a material adverse effect on PBTC or any PBTC Subsidiary, and there
has not occurred any event that, with the lapse of time or the giving of notice
or both, would constitute such a default.
5.28 Reports. Since January 1, 1990, PBTC has 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 ASBD; (ii) the FDIC,
including, but not limited to, Call Reports and FFIEC 034 and proxy statements;
and (iv) any other applicable federal or state securities or banking
authorities (except, in the case of federal or state securities authorities,
filings that are not material). As of their respective dates, each of such
reports and documents, including the financial statements, exhibits, and
schedules thereto, complied in all material respects with all of the
requirements of their respective forms and 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. PBTC has previously provided to UPC true and correct copies of all
such reports filed by PBTC after January 1, 1990.
5.29 Statements True and Correct. None of the information
prepared by, or on behalf of, PBTC or any PBTC Subsidiary regarding PBTC or any
PBTC Subsidiary included or to be included in the Proxy Statement to be mailed
to PBTC'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 PBTC, 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
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 40
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communication with respect to the solicitation of any proxy for the
Shareholders Meeting. All documents which PBTC or any PBTC 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
execution of this Reorganization Agreement (but not more than thirty (30)
days), UPC shall file any and all applications with the appropriate government
Regulatory Authorities in order to obtain the Government Approvals and shall
take such other actions as may be reasonably required to consummate the
transactions contemplated in this Reorganization Agreement and the Merger
Agreement 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 Conduct of Business -- Affirmative Covenants. Unless the
prior written consent of PBTC shall have been obtained and, except as otherwise
contemplated herein:
(a) UPC and FSB, at their own cost and expense, shall
use their reasonable best efforts to secure all necessary consents and all
consents and releases, if any, required of UPC, FSB or third parties and shall
comply with all applicable laws, regulations and rulings in connection with
this Reorganization
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 41
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Agreement and the consummation of the transactions contemplated hereby; and
(b) At all times to and including, and as of, the
Closing, UPC and FSB shall inform UPC in writing of any and all facts necessary
to amend or supplement the representations and warranties made herein and the
Schedules attached hereto as necessary so that the information contained herein
and therein will accurately reflect the current status of UPC and FSB in all
material respects; 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.
6.3 Registration of UPC Common Stock under the Securities
Laws. UPC shall cooperate with PBTC in the preparation of the PBTC 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 the UPC Common
Stock) and shall cause a registration statement on the appropriate form of the
SEC to be prepared and filed so as to cause any shares of UPC Common Stock
which may be delivered to the PBTC Record Holders in payment of the
Consideration to be registered under the 1933 Act and to be duly qualified
under appropriate state securities laws. UPC shall also list for trading on
the NYSE the UPC Common Stock. Such registration, qualification and listing
shall be effective at Closing and on the Effective Date.
6.4 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 PBTC or
the PBTC Subsidiaries and all employees of PBTC and the PBTC Subsidiaries
immediately prior to the Effective Time of the Merger who shall continue as
employees of FSB, as the Resulting Bank 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 as of the Effective Date of the Merger.
Service with PBTC or with any PBTC Subsidiary prior to the Effective Time of
the Merger by such former PBTC Company employees will not 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 January next
following the Effective Time of the Merger the participation of the employees
of PBTC and PBTC's Subsidiaries in the employee benefit
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 42
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plans maintained by UPC or UPC's Subsidiaries; provided, however, during any
such postponement period, The PBTC 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 the plan is replaced by a benefit plan maintained by UPC.
ARTICLE 7
COVENANTS OF PBTC
7.1 Proxy Statement; PBTC Shareholder Approval. PBTC shall
call 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 not later than June 30, 1995, for the
purpose of (i) approving this Reorganization Agreement and the Merger
Agreement, and (ii) such other related matters as it deems appropriate. In
connection with the Shareholders Meeting, (i) PBTC shall, with UPC's
assistance, prepare a Proxy Statement to be filed with the SEC as part of UPC's
registration statement and with any other appropriate Regulatory Authority;
shall mail or cause to be mailed such Proxy Statement to its 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 PBTC 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 PBTC shall recommend (subject
to compliance with their legal and fiduciary duties as advised by counsel) to
PBTC Shareholders the approval of this Reorganization Agreement and the Merger
Agreement; and (iv) PBTC shall use its best efforts, subject to compliance with
its legal and fiduciary duty as advised by counsel, to obtain such PBTC
Shareholders' approvals.
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) PBTC shall, and shall cause each PBTC Subsidiary
to:
(i) Operate its business only in the usual,
regular, and ordinary course;
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 43
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(ii) Preserve intact its business
organizations and assets and to maintain 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 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) Use its reasonable best efforts to 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 PBTC or such PBTC 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 reasonable best efforts to
retain PBTC's present customer base and to facilitate the retention of
such customers by FSB and its branches after the Effective Time of the
Merger; and
(vii) Use its reasonable best efforts to
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 so that such employees will continue to
perform effectively and will be available to PBTC 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 to assure the continuance of PBTC's customer
relationships;
(b) PBTC agree to use its reasonable best efforts to
assist UPC in obtaining the Government Approvals necessary to complete the
transactions contemplated hereby and do not know of any reason that such
Government Approvals can not be obtained, and PBTC shall provide to UPC or to
the appropriate governmental
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 44
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authorities all information reasonably required to be submitted in connection
with obtaining such approvals;
(c) PBTC, at its own cost and expense, shall use its
reasonable best efforts to secure all necessary consents and all consents and
releases, if any, required of PBTC or 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 to and including, and as of, the
Closing, PBTC shall inform UPC in writing of any and all facts necessary to
amend or supplement the representations and warranties made herein and the
Schedules attached hereto as necessary so that the information contained herein
and therein will accurately reflect the current status of PBTC in all material
respects; 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;
(e) On and after the Closing Date, PBTC and 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
transaction contemplated by this Reorganization Agreement;
(f) Between the date of this Reorganization
Agreement and the Closing Date, PBTC shall afford 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 PBTC. PBTC shall provide reasonable
assistance to UPC in its investigation of matters relating to PBTC; and
(g) Subject to the terms and conditions of this
Reorganization Agreement, PBTC 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 transaction 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 transaction
contemplated by this Reorganization Agreement. PBTC shall use, and shall cause
each of its Subsidiaries to use, its best efforts to obtain consents
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 45
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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, PBTC covenants and
agrees that they will neither do, nor agree or commit to do, nor permit any
PBTC Subsidiary to do or commit or agree to do, except for existing commitments
or agreements which have previously been disclosed to UPC, 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 Merger Agreement, amend its Articles of
Incorporation or Bylaws; or
(b) 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 or options to acquire any shares of its
capital stock or other equity securities except as expressly permitted by this
Reorganization Agreement or the Merger Agreement; or (ii) split or otherwise
subdivide its capital stock; or (iii) recapitalize in any way; or (iv) declare
a stock dividend on the PBTC Common Stock; or (v) declare or pay any cash or in
kind dividend on the PBTC Common Stock; 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
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 46
<PAGE> 146
(e) Except as expressly permitted by this
Reorganization Agreement or the Merger Agreement, to (i) issue, sell, agree to
sell, or otherwise dispose of or otherwise permit to become outstanding any
additional shares of PBTC Common Stock, or any other capital stock of PBTC or
of any PBTC 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 are sold or otherwise transferred to PBTC or any PBTC Subsidiary, or (ii)
sell, agree to sell, or otherwise dispose of any substantial part of the assets
or earning power of PBTC or of any PBTC Subsidiary; or (iii) sell, agree to
sell, or otherwise dispose of any asset of PBTC or any PBTC 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 PBTC 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 PBTC or any PBTC
Subsidiary to PBTC or another PBTC Subsidiary] in excess of an aggregate of
$50,000 (for PBTC and its Subsidiaries on a consolidated basis) except in the
ordinary course of the business of PBTC or such PBTC 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) Except for existing commitments set forth on
Schedule 7.3(g) hereto, 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 PBTC or of any PBTC Subsidiary; or effect any change in
retirement benefits for any class of its employees or officers, unless such
change is 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 is required by law) to increase the compensation or
benefits payable thereunder; or to
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 47
<PAGE> 147
enter into any new employment contract with any person having an annual salary
thereunder in excess of $30,000 that PBTC (or its successor) does 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 is required by law or that, in the opinion of counsel, is
necessary or advisable to maintain the tax-qualified status of any such plan;
or
(j) Enter into any new service contracts, purchase
contracts or lease agreements that are material to PBTC or any PBTC Subsidiary;
or
(k) Make any capital expenditure in excess of
$25,000, except for ordinary purchases, repairs, renewals or replacements; or
(l) Enter into any transactions other than in the
ordinary course of business; or
(m) Except in the ordinary course of business and
consistent with past practices, grant or commit to grant any new extension of
credit to any officer, director or holder of 2% or more of the outstanding PBTC
Common Stock, 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 two percent (2%) of the capital of PBTC or amend
the terms of any such credit outstanding on the date hereof.
ARTICLE 8
CONDITIONS TO CLOSING
8.1 Conditions to the Obligations of PBTC. Unless waived
in writing by PBTC, the obligation of PBTC to consummate the transaction
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 FSB to be performed at or prior to the Closing Date
pursuant to this Reorganization Agreement shall have been duly performed;
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 48
<PAGE> 148
(b) Representations and Warranties. The
representations and warranties of UPC and FSB 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 FSB described elsewhere in this Reorganization Agreement,
PBTC shall have received the following documents and instruments:
(i) a certificate signed by the
Secretary or an assistant secretary of UPC and FSB dated as of the
Closing Date certifying that:
(A) UPC's and FSB' 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 Merger Agreement) 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 FSB is an officer
of UPC or FSB, as the case may be, holding the office or
offices specified therein 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 FSB attached to such certificate remain in full force and
effect; and
(D) UPC and FSB are in good
standing under their respective corporate charters; and
(ii) a certificate signed respectively by
duly authorized officers of UPC or FSB 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. PBTC 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 in
escrow certificates evidencing and representing that number of shares of UPC
Common Stock and cash
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 49
<PAGE> 149
funds sufficient to meet the obligations of UPC to the PBTC Record Holders to
deliver the Consideration at the Closing under this Reorganization Agreement
and the Merger Agreement;
(e) Opinion of UPC's and FSB' Counsel. PBTC
shall have been furnished with an opinion of counsel to UPC and FSB, dated as
of the Closing Date, addressed to and in form and substance satisfactory to
PBTC, 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 FSB is an Arkansas state banking
corporation duly organized, validly existing, and in good standing
under the laws of the State of Arkansas;
(ii) this Reorganization Agreement has
been duly and validly authorized, executed and delivered by UPC and
FSB and (assuming this Reorganization Agreement is a binding
obligation of PBTC) constitutes a valid and binding obligation of UPC
and FSB 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;
(iii) neither the execution and delivery by
UPC or FSB of this Reorganization Agreement nor any of the documents
to be executed and delivered by UPC or FSB in connection herewith
violates or conflicts with UPC's or FSB' 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 FSB;
(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 FSB of this Reorganization Agreement
or any of the documents to be executed and delivered by UPC or FSB in
connection herewith; and
(v) the shares of UPC Common Stock to be
issued in the names of the PBTC Record Holders and delivered in
exchange for their PBTC Common Stock will be duly authorized, validly
issued, fully paid and non-assessable.
Such opinion may (i) expressly rely as to matters of fact upon certificates
furnished by appropriate officers of UPC or FSB or
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 50
<PAGE> 150
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 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) Inspections Permitted. Between the date of
this Reorganization Agreement and the Closing Date, UPC and FSB shall have
afforded PBTC 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 FSB, and UPC and FSB shall have caused all UPC and FSB personnel to provide
reasonable assistance to PBTC in its investigation of matters relating to UPC
and FSB; and
(g) 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 FSB taken as
a whole shall have occurred since the date of this Reorganization Agreement.
In the event of such a material adverse change with respect to UPC or FSB, PBTC
may elect either (i) to close the contemplated transaction in accordance with
the terms of this Reorganization Agreement or (ii) to terminate this
Reorganization Agreement without penalty.
8.2 Conditions to the Obligations of UPC and FSB. Unless
waived in writing by UPC and FSB, the obligation of UPC and FSB 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 PBTC 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 PBTC 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:
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 51
<PAGE> 151
(i) a certificate signed by the
Secretary or an assistant secretary of PBTC dated as of the Closing
Date certifying that:
(A) PBTC's Board of Directors has
duly adopted resolutions (copies of which shall be attached to
such certificate) approving the substantive terms of this
Reorganization Agreement (including the Merger Agreement) 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 PBTC is an officer of
PBTC, holding the office or offices specified therein and that
the signature of each person set forth on such certificate is
his or her genuine signature;
(C) the charter documents of PBTC
attached to such certificate remain in full force and effect;
and
(D) PBTC is in good standing under
its corporate charter; and
(ii) a certificate signed by the Chief
Executive Officer or Executive Vice President of PBTC stating that the
conditions set forth in Section 8.2(a), Section 8.2(b) and 8.2(f) this
Reorganization Agreement 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 real property, improvements or personal property of
PBTC 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
PBTC; provided, however, that the availability of insurance coverage shall be
taken into account in determining whether there has been such a material
adverse impact or material reduction in market value. In the event of such
damage, destruction, order, limitation or restriction, UPC or FSB may elect
either (i) to close the contemplated transaction in accordance with the terms
of this Reorganization Agreement or (ii) to terminate this Reorganization
Agreement without penalty;
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 52
<PAGE> 152
(e) Inspections Permitted. Between the date of
this Reorganization Agreement and the Closing Date, PBTC 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 PBTC. PBTC shall
have caused all PBTC personnel to provide reasonable assistance to UPC in its
investigation of matters relating to PBTC;
(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 condition (financial or otherwise) of PBTC taken as a
whole shall have occurred since the date of this Reorganization Agreement. In
the event of such a material adverse change with respect to PBTC, UPC may elect
either (i) to close the contemplated transaction in accordance with the terms
of this Reorganization Agreement or (ii) to terminate this Reorganization
Agreement without penalty;
(g) Opinion of PBTC's Counsel. UPC shall have
been furnished with an opinion of counsel to PBTC, dated the Closing Date,
addressed to and in form and substance satisfactory to UPC, to the effect that:
(i) PBTC is a state bank duly
organized, validly existing, and in good standing under the laws of
the State of Arkansas;
(iii) this Reorganization Agreement has been
duly and validly authorized, executed and delivered by PBTC and
(assuming that this Reorganization Agreement is a binding obligation
of UPC and FSB and the Merger Agreement is a binding obligation of UPC
and FSB) constitutes a valid and binding obligation of PBTC
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 PBTC of this Reorganization Agreement or any of the
documents to be executed and delivered by PBTC in connection herewith.
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 53
<PAGE> 153
Such opinion may (i) expressly rely as to matters of fact upon certificates
furnished by appropriate officers of PBTC 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
the State of Arkansas; and (iii) incorporate, be guided by, and be interpreted
in accordance with, the Legal Opinion Accord of the ABA Section of Business Law
(1991); and
(h) Other Business Combinations, Etc. PBTC shall
not have entered into any agreement, letter of intent, understanding or other
arrangement pursuant to which PBTC would merge; consolidate with; effect a
business combination with; sell any substantial part of PBTC'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 PBTC or the benefits of acquiring the PBTC Common
Stock; and
(i) Maintenance of Certain Covenants, Etc. At
the time of Closing (i) the total consolidated assets of PBTC shall be not
less than $52,000,000 at Closing, (ii) the tangible equity capital of PBTC
shall have increased since December 31, 1994 through normal earnings, (iii)
PBTC shall have no more than 24,000 shares of common stock outstanding at
Closing, being its only class of stock issued and outstanding, (iv) there shall
have been no extraordinary sales of assets or investment portfolio
restructuring since December 31, 1994, and (v) there shall have been no
dividend declaration by PBTC since December 31, 1994. The criteria and
calculations set forth above shall be determined in accordance with GAAP
assuming that PBTC shall have been operated consistently in the normal course
of its business; provided, however, that the effects of any balance sheet
expansion through abnormal, unusual or out of the ordinary borrowings or by the
realization of extraordinary gains 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 PBTC set forth on Schedule 8.2(j) hereto shall have
entered into a non-compete agreement with UPC and/or FSB substantially in the
form of UPC's standard form of non-compete agreement as attached hereto as part
of 8.2(j), providing for a term of not less than two (2) years and covering St.
Francis County, Arkansas, the county in which PBTC currently operates and does
business in and has a present intention to do business in; and
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 54
<PAGE> 154
(k) Receipt of Affiliate Letters. Pursuant to
the provisions of Section 2.6 of this Reorganization Agreement, UPC shall have
received a written commitment in form and substance satisfactory to UPC and its
counsel (an "Affiliate Letter") from each PBTC Record Holder who would be
deemed an Affiliate of PBTC at the time of Closing under the Securities Laws
and who accepts shares of UPC Common Stock as Consideration for the
cancellation, exchange and conversion of his shares of PBTC Common Stock
pursuant to the terms and conditions of this Reorganization Agreement,
committing to UPC that such PBTC Record Holder shall not pledge, assign, sell,
transfer, devise, 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 PBTC Record Holder upon consummation of the Merger, nor enter
into any formal or informal agreement to pledge, assign, sell or transfer,
devise, or otherwise alienate his right, title and interests in any of the
shares of UPC Common Stock to be delivered by UPC to such PBTC Record Holder
pursuant to the terms and conditions of this Reorganization Agreement except in
accordance with the Securities Laws and consistent with recording the
transaction as a tax-free reorganization.
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;
(b) Governmental Approvals and Acquiescence
Obtained. The Parties hereto shall have received all applicable Governmental
Approvals for the consummation of the transactions contemplated herein and all
waiting periods incidental to such approvals or notices given shall have
expired;
(c) Effective Registration Statement and No Stop
Orders. An S-4 Registration Statement encompassing the Proxy
Statement-Prospectus shall have been filed with the SEC, such registration
statement shall have become effective and no stop order shall have been issued
or in effect by the SEC with respect to such registration statement or the
shares of UPC Common Stock to be issued pursuant thereto; and
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 55
<PAGE> 155
(d) Tax Opinion. UPC and PBTC shall have
received a written opinion from counsel to UPC to the effect that the
transactions contemplated by this Reorganization Agreement and the Merger
Agreement will constitute one or more tax-free reorganizations under Section
368 of the Internal Revenue Code and that the PBTC Record Holders will not
recognize any gain or loss to the extent that such PBTC Record Holders exchange
shares of PBTC Common Stock for shares of UPC Common Stock as contemplated by
this Reorganization Agreement and the Merger Agreement assuming that the shares
of PBTC Common Stock so exchanged by such PBTC Record Holders are held by them
as capital assets at the time of such exchange.
ARTICLE 9
TERMINATION
9.1 Termination. This Reorganization Agreement and the
Merger Agreement 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 FSB, should PBTC or any PBTC
Subsidiary fail to conduct its business pursuant to PBTC's Covenants made in
Article 7; or by PBTC, should UPC or any UPC Subsidiary fail to conduct its
business pursuant to UPC's and FSB's Covenants made in Article 6;
(c) By UPC, FSB or PBTC in the event the Closing
shall not have occurred by August 30, 1995 (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; provided, however, if UPC shall have filed any and all
applications to obtain the requisite Government Approvals within thirty (30)
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 PBTC shall, upon UPC's written
request, extend the Closing Date for a reasonable time in order for UPC to
obtain all Government Approvals and for the expiration of any stipulated
waiting periods, but in any event not later than November 30, 1995;
(d) By either UPC, FSB or PBTC, 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
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 56
<PAGE> 156
the transaction contemplated); provided, however, that either UPC or PBTC may,
upon written notice to the other, extend the term of this Reorganization
Agreement for only one sixty (60) day period to prosecute diligently and
overturn such denial, provided that such denial has been appealed within ten
(10) business days of the receipt thereof;
(e) By UPC or FSB if the conditions set forth in
Sections 8.2 or 8.3 are not satisfied in all material respects as of the
Closing Date, or by PBTC if the conditions set forth in Section 8.1 or 8.3 are
not satisfied in all material respects as of the Closing Date, and such failure
has not been waived prior to the Closing;
(f) By UPC or FSB 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 PBTC, 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 PBTC Common Stock which are the
subject of the instant transaction; or by PBTC in the event that there shall
have been, in PBTC'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 FSB taken as
a whole;
(g) By UPC, FSB or PBTC 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 FSB should PBTC or any PBTC 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 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; or by PBTC should UPC 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
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 57
<PAGE> 157
combine or to sell a material portion of its assets or to be acquired in any
other manner by any other Person; or
(i) By UPC or FSB should PBTC or any PBTC 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 PBTC to raise additional capital or to sell a
substantial portion of its assets; or by PBTC UPC or any UPC 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 UPC to raise additional capital or to sell a substantial portion
of its assets.
If a Party should elect to terminate this Reorganization Agreement pursuant to
subsections (b), (c), (d), (e), (f), (g), (h) or (i) 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:
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 58
<PAGE> 158
If to PBTC: Planters Bank & Trust Company
321 North Rosser Street
Street (P.O. Box 1539)
Forrest City, Arkansas 72335-1539
Fax: (501) 633-2894
Attn: Frankie L. Pratt, Chairman
With a copy to: Richard N. Massey, Esq.
Rose Law Firm
120 East Fourth Street
Little Rock, Arkansas 72201
Fax: (501) 375-1309
If to UPC or FSB:
Union Planters Corporation
P.O. Box 387 (mailing address)
Memphis, Tennessee 38147
or 7130 Goodlett Farms Parkway (deliveries)
Memphis, Tennessee 38088
Fax: (901) 383-2832
Attn: Jackson W. Moore, President
Gary A. Simanson, Associate General Counsel
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; provided, however, such assignment
shall not change the form or nature of Consideration to be received by the PBTC
Record Holders. 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
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 59
<PAGE> 159
court of competent jurisdiction located in Shelby County, Tennessee.
10.4 Counterparts. This Reorganization Agreement may be
executed simultaneously in one or more counterparts, each of which shall be
deemed an original, but all of which shall constitute but one and the same
instrument.
10.5 Best Efforts. PBTC, UPC and FSB 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 or FSB shall not obligate UPC or FSB to obtain or to provide UPC or FSB
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 FSB 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.
10.7 Entire Agreement. This Reorganization Agreement,
together with the Merger Agreement 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 transaction contemplated hereby and supersede all prior
written and oral (and all contemporaneous oral) agreements and understandings
of the Parties hereto concerning the subject matter hereof. The 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
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 60
<PAGE> 160
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, to the extent permitted by law, 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 Merger Agreement; provided, however, that 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
and PBTC 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. UPC, FSB and PBTC represent and
warrant to each other that, except for the engagement by PBTC of Stephens, Inc.
as its financial advisor, 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 transaction contemplated herein. This section shall survive the
termination of this Reorganization Agreement.
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 61
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10.13 Equitable Remedies. The Parties hereto agree that, in
the event of a breach of this Reorganization Agreement by PBTC, UPC and FSB
will be without an adequate remedy at law by reason of the unique nature of
PBTC. In recognition thereof, in addition to (and not in lieu of) any remedies
at law which may be available to UPC and FSB, UPC and FSB 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 PBTC,
and no attempt on the part of UPC or FSB to obtain such equitable relief shall
be deemed to constitute an election of remedies by UPC or FSB which would
preclude UPC or FSB from obtaining any remedies at law to which it would
otherwise be entitled. PBTC covenants that it shall not contend in any such
proceeding that UPC or FSB 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 Survival of Representations and Warranties. All
representations and warranties made by the Parties hereto or in any instrument
or document furnished in connection herewith, shall survive the Closing and any
investigation at any time made by or on behalf of the Parties hereto and shall
expire at the Effective Time of the Merger except as to any matter which is
based upon willful fraud with respect to which the representations and
warranties set forth in this Reorganization Agreement shall expire only upon
expiration of the applicable statutes of limitation. Nothing in this Section
10.15 shall limit PBTC's, UPC's or FSB' rights or remedies for
misrepresentations, breaches of this Reorganization Agreement or any other
improper action or inaction by the other Party hereto prior to its termination.
10.16 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
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 62
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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.
10.17 Remedies Cumulative. All remedies provided in this
Reorganization Agreement, by law or otherwise, shall be cumulative and not
alternative.
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 63
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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 in its name and on its behalf by its
representative thereunto duly authorized, all as of the date first written
above.
PLANTERS BANK & TRUST COMPANY
By: /s/
-------------------------------
Frankie L. Pratt
Its: Chairman of the Board
ATTEST:
- ---------------------------
Secretary
UNION PLANTERS CORPORATION
By: /s/
-------------------------------
Jackson W. Moore
Its: President
ATTEST:
- ---------------------------
Secretary
FIRST SOUTHERN BANK
By: /s/
-------------------------------
Its: President
ATTEST:
- ---------------------------
Secretary
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 64
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ANNEX A
MERGER AGREEMENT
SETTING FORTH THE PLAN OF MERGER
OF
PLANTERS BANK & TRUST COMPANY
(AN ARKANSAS BANKING CORPORATION)
WITH AND INTO
FIRST SOUTHERN BANK
(AN ARKANSAS BANKING CORPORATION)
THIS MERGER AGREEMENT ("Merger Agreement") is made and entered into as
of the ______ day of ___________, 1995, by and between UNION PLANTERS
CORPORATION ("UPC"), a corporation organized and existing under the laws of the
State of Tennessee and having its principal offices 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, as amended;
FIRST SOUTHERN BANK ("FSB"), a banking corporation organized and existing under
the laws of the State of Arkansas having its principal office located 801
Commerce Street (P. O. Box 248), Earle, Crittenden County, Arkansas 72331 and a
wholly-owned subsidiary of UPC; and PLANTERS BANK & TRUST COMPANY ("PBTC"), a
banking corporation organized and existing under the laws of the State of
Arkansas having its principal office located at 321 North Street (Post Office
Box 1539) Forest City, St. Francis County, Arkansas 72335.
PREAMBLE
WHEREAS, UPC, FSB and PBTC have entered into an Agreement and Plan of
Reorganization dated as of the 10th day of February, 1995 ("Reorganization
Agreement") to which this Merger Agreement is Annex A and is incorporated by
reference as a part thereof; and
WHEREAS, The Boards of Directors of UPC, FSB and PBTC, are each of the
opinion that the interests of their respective institutions and their
institutions' respective shareholders would best be served if PBTC were to be
merged with and into FSB, which would survive the merger, on the terms and
conditions
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 65
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provided in the Reorganization Agreement and in this Merger Agreement, and as a
result of such Merger becoming effective, FSB would continue to be wholly-owned
subsidiary of UPC.
NOW, THEREFORE, in consideration of the covenants and agreements of
the Parties contained herein, the respective Boards of Directors of UPC, FSB
and PBTC hereby make, adopt and approve this Merger Agreement in order to set
forth the terms and conditions for the merger of PBTC with and into FSB (the
"Merger").
ARTICLE I.
DEFINITIONS
1.1 As used in this Merger Agreement and in any amendments hereto,
the following terms shall have the following meanings respectively:
"ARKANSAS CODE" shall mean the Arkansas Code Annotated, as amended.
"ARKANSAS COMMISSIONER" shall mean the Commissioner of the Arkansas
State Bank Department.
"ASBD" shall mean the Arkansas State Bank Department.
"BHCA" shall mean the Bank Holding Company Act of 1956, as amended.
"CONSIDERATION" shall have the meaning assigned to such term in
Section 3.3 of this Merger Agreement.
"CONTINUING BANK" means the Merging Bank (as such term is defined in
Section 23-32-501 of the Arkansas Code), the Charter of which becomes the
Charter of the Resulting Bank, FSB in the instant transaction.
"EFFECTIVE TIME OF THE MERGER" shall mean the date and time at which
the Merger becomes effective pursuant to the laws of the State of Arkansas as
provided in Section 8.3 of this Merger Agreement.
"EXCHANGE AGENT" shall have the meaning assigned to such term in
Section 3.4 of this Merger Agreement.
"FAIR MARKET VALUE" shall have the same definition as has been
prescribed by the Internal Revenue Service for the purpose of valuing assets
for federal estate or gift tax purposes.
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"FDIC" shall mean the Federal Deposit Insurance Corporation.
"FEDERAL RESERVE" shall mean the Board of Governors of the Federal
Reserve System and those to which it has delegated certain authority including
the Federal Reserve Bank of St. Louis.
"FSB" shall mean the FIRST SOUTHERN BANK, a banking corporation
organized and existing under the laws of the State of Arkansas having its
principal office located 801 Commerce Street (P. O. Box 248), Earle, Crittenden
County, Arkansas 72331 and a wholly-owned subsidiary of UPC.
"FSB COMMON STOCK" shall mean the $10.00 par value common stock of FSB.
"GAAP" shall mean generally accepted accounting principles,
consistently applied.
"MERGER" shall mean the merger of PBTC with and into FSB as provided
in Section 3.1 of this Merger Agreement.
"MERGER AGREEMENT" shall mean this Merger Agreement providing the plan
for merging PBTC with and into FSB, which would survive the Merger.
"MERGING BANKS" means FSB and PBTC, the parties to the Merger.
"PARTY" shall mean UPC and PBTC on the one hand, or FSB on the other
hand, and "PARTIES" shall mean collectively UPC, FSB and PBTC.
"PBTC" shall mean PLANTERS BANK & TRUST COMPANY, a banking corporation
organized and existing under the laws of the State of Arkansas having its
principal office located at 321 North Street (Post Office Box 1539) Forest
City, St. Francis County, Arkansas 72335.
"PBTC" shall mean PLANTERS BANK & TRUST COMPANY as defined above.
"PBTC COMMON STOCK" shall mean the 24,000 authorized, issued and
outstanding shares of Common Stock of PLANTERS BANK & TRUST COMPANY having a
par value of $25.00 per share.
"PBTC RECORD HOLDER" shall have the meaning assigned to such term in
Section 3.2(b) of this Merger Agreement.
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PAGE 67
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"REGULATORY AUTHORITIES" shall mean, collectively, the Federal
Reserve, the FDIC, the ASBD and any other governmental or quasi-governmental
entity which has, or may hereafter have jurisdiction over any of the
transactions contemplated by the Reorganization Agreement.
"REORGANIZATION AGREEMENT" shall have the meaning assigned to such
term in the Preamble.
"RESULTING BANK" means the bank resulting from the consummation of the
Merger, FSB in the instant transaction.
"SHAREHOLDERS MEETING" shall mean the meeting of the shareholders of
FSB to be held pursuant to Section 7.1 of the Reorganization Agreement.
All other terms not specifically defined herein shall have the meanings
assigned to such terms in the Reorganization Agreement.
ARTICLE II.
INFORMATION REQUIRED BY ARKANSAS CODE SECTION 23-32-503
2.1 INFORMATION CONCERNING MERGING BANKS. The names of the two
Merging Banks and the locations of the respective offices of each are as
follows:
FIRST SOUTHERN BANK (three banking offices)
Principal Office
801 Commerce Street
(P. O. Box 248)
Earle, Crittenden County, Arkansas 72331
PLANTERS BANK & TRUST COMPANY (four banking offices)
Principal Office
Planters Bank & Trust Company
321 North Rosser Street
Street (P.O. Box 1539)
Forrest City, Arkansas 72335-1539
2.2 INFORMATION CONCERNING THE RESULTING BANK:
(A) NAME. The name of the Resulting Bank shall be:
FIRST SOUTHERN BANK
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The three banking offices of FSB identified in Section 2.1 above shall
continue to be the banking office of the Resulting Bank and the four
offices of PBTC identified above shall become offices of FSB at the
Effective Time of the Merger incidental to consummation of the Merger.
(B) BOARD OF DIRECTORS. The names and residences of
each director of the Resulting Bank to serve until the next meeting of
stockholders at which directors are to be elected are as follows:
1. Name of FSB Director
Street Address of Director
City, Arkansas ZIP
2. Name of FSB Director
Street Address of Director
City, Arkansas ZIP
3. Name of FSB Director
Street Address of Director
City, Arkansas ZIP
4. Name of FSB Director
Street Address of Director
City, Arkansas ZIP
5. Name of FSB Director
Street Address of Director
City, Arkansas ZIP
6. Name of FSB Director
Street Address of Director
City, Arkansas ZIP
7. Name of FSB Director
Street Address of Director
City, Arkansas ZIP
8. Name of FSB Director
Street Address of Director
City, Arkansas ZIP
MERGER AGREEMENT - ANNEX A TO AGREEMENT AND PLAN OF REORGANIZATION
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(C) OFFICERS. The names and residences of each
policy-making-level officer of the Resulting Bank are as follows:
1. Name and Title of Officer of FSB
Street Address of such Officer
City, Arkansas ZIP
2. Name and Title of Officer of FSB
Street Address of such Officer
City, Arkansas ZIP
3. Name and Title of Officer of FSB
Street Address of such Officer
City, Arkansas ZIP
4. Name and Title of Officer of FSB
Street Address of such Officer
City, Arkansas ZIP
5. Name and Title of Officer of FSB
Street Address of such Officer
City, Arkansas ZIP
(D) CAPITALIZATION. The capital accounts of the
Resulting Bank shall be approximately as follows:
Common Stock $ __,000
Capital Surplus _,___,000
Undivided Profits ________0
Total Stockholders' Equity $ _,___,000
The Resulting Bank shall have one class of equity securities
consisting of 100,000 authorized shares of common stock having a par
value of $10.00 per share. Upon the Merger becoming effective,
100,000 shares of common stock will be issued and outstanding.
(E) NO PREFERRED SHARES. The Resulting Bank will
have no class of preferred stock authorized.
(F) ARTICLES OF INCORPORATION AND BYLAWS. FSB is
designated as the Continuing Bank. The Articles of Incorporation and
Bylaws of FSB as in effect immediately prior to the Effective Time of
the Merger shall continue to be the Articles of Incorporation and
Bylaws of the Resulting Bank at and after the Effective Time of the
Merger.
MERGER AGREEMENT - ANNEX A TO AGREEMENT AND PLAN OF REORGANIZATION
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ARTICLE 3
TERMS OF THE MERGER
3.1 CONSUMMATION OF THE MERGER. The Merger shall become effective
and the separate corporate existences of the Merging Banks shall cease upon the
filing of this Merger Agreement in executed form with the Arkansas Commissioner
in accordance with Section 23-32-503 of the Arkansas Code, or at such later
date and/or time as may be specified in this Merger Agreement, and which shall,
upon becoming effective, have the effects set forth in this Merger Agreement
and also in Section 23-32-503 of the Arkansas Code. FSB, as the Resulting
Bank, shall continue to exist and to be governed by the laws of the State of
Arkansas. The Merger shall be consummated pursuant to the terms of this Merger
Agreement which has been duly adopted by majorities of the members of the
entire Boards of Directors of each of UPC, PBTC and FSB, and has been duly
approved by UPC as the sole shareholder of FSB and by the shareholders of PBTC.
This Merger Agreement shall first be submitted to the Arkansas Commissioner for
approval and upon receipt of such approval, shall be submitted for approval to
the shareholders of PBTC at the Shareholders Meeting. The members of PBTC's
Board of Directors, subject to their fiduciary obligations, agree to recommend
its approval by PBTC's shareholders.
3.2 AUTOMATIC CONVERSION OF SHARES AT THE EFFECTIVE TIME.
(A) SHARES OF FSB COMMON STOCK SHALL REMAIN OUTSTANDING. At
the Effective Time of the Merger, each of the 100,000 shares FSB
Common Stock issued and outstanding immediately prior to the Effective
Time of the Merger shall automatically become the issued and
outstanding Common Stock of FSB as the Resulting Bank without any
further action on the part of the holder thereof or of any other
person. Such 100,000 shares shall become and constitute all of the
issued and outstanding common stock of the Resulting Bank as the
entity surviving the Merger, and the certificate evidencing and
representing the 100,000 shares of FSB Common Stock issued and
outstanding immediately prior to the Effective Time of the Merger
shall, without any further action, at and after the Effective Time of
the Merger evidence and represent the 100,000 issued and outstanding
shares of common stock of the Resulting Bank at and after the
Effective Time of the Merger and until such certificate shall have
been surrendered for cancellation and a new certificate or
certificates issued in substitution therefor.
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(B) CONVERSION AND CANCELLATION OF PBTC COMMON STOCK. Each
share of PBTC Common Stock which shall be issued and outstanding
immediately prior to the Effective Time of the Merger shall, thereupon
and thereafter, by virtue of the Merger becoming effective and without
any action on the part of the holder thereof or of any other person,
be automatically cancelled and cease to be an issued and outstanding
share of PBTC Common Stock, and converted into and represent only the
right of the registered holder thereof immediately prior to the
Effective Time of the Merger (such registered holder at such time
being hereinafter referred to as an "PBTC Record Holder") to receive
from UPC in exchange therefor the Consideration in the amount and of
the type described respectively in Sections 3.3 and 3.4 below upon
compliance with the provisions the Reorganization Agreement and this
Merger Agreement. After the Effective Time of the Merger, there shall
be no further registration or transfer on the records of PBTC of those
shares of PBTC Common Stock which were outstanding immediately prior
to the Effective Time of the Merger.
3.3 THE CONSIDERATION TO BE RECEIVED BY THE PBTC RECORD HOLDERS. At
the Effective Time of the Merger, the outstanding shares of PBTC Common Stock
held by the PBTC 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 PBTC and shall,
except for those shares of PBTC Common Stock held and registered in the name of
any PBTC Record Holder who shall have perfected his dissenters' rights and
shall have continued such dissenting status through the Effective Time of the
Merger, automatically be converted exclusively into, and constitute only the
right of the PBTC Record Holders to receive in exchange for their shares of
PBTC Common Stock, whole shares of UPC Common Stock and a cash payment in
settlement of any remaining fractional share of UPC Common Stock in accordance
with the terms and conditions of this Section 3.3. The shares of UPC Common
Stock and the cash settlement of any remaining fractional share of UPC Common
Stock deliverable by UPC to the PBTC Record Holders pursuant to the terms of
this Reorganization Agreement are sometimes collectively referred to herein as
the "Consideration."
The number of shares of UPC Common Stock to be exchanged for each share of PBTC
Common Stock issued and outstanding immediately prior to the Effective Time of
the Merger (based on there being no more than 24,000 shares of PBTC Common
Stock issued and outstanding immediately prior to the Effective Time of the
Merger) shall be based on an exchange ratio (the "Exchange Ratio") as
determined and set forth in this Section 3.3. The
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Exchange Ratio shall be fixed at 14.2163 shares of UPC Common Stock for each
share of PBTC Common Stock issued and outstanding at the Effective Time of the
Merger; provided, however, in the event the Merger should not have been
consummated by June 30, 1995, UPC shall increase the aggregate Consideration
(and correspondingly the Exchange Ratio) to be delivered to the PBTC
Shareholders by an amount equal to $40,000 for each month and prorated on a
thirty (30) day basis for any partial month subsequent to April 30, 1995 until
the Closing Date, payable in cash or shares of UPC Common Stock, at the
election of UPC, based upon a value of $23.33 for one (1) full share of UPC
Common Stock.
The Exchange Ratio shall be based on an aggregate of no more than 24,000 shares
of PBTC Common Stock issued and outstanding immediately prior to the Effective
Time of the Merger; provided, however, that no fractional shares of UPC Common
Stock shall be issued and if, after aggregating all of the shares of UPC Common
Stock to which a PBTC Record Holder would be entitled based upon the Exchange
Ratio, there were a fractional share of UPC Common Stock remaining, such
fractional share shall be settled by a cash payment therefor based upon a value
of $23.33 for one (1) full share of UPC Common Stock.
(1) EFFECTS OF DISSENTERS' RIGHTS ON THE
EXCHANGE RATIO. Should PBTC Record Holders representing at least
seven percent (7%) of the shares of PBTC Common Stock issued and
outstanding at the time of Closing perfect such PBTC Record Holder's
dissenters' rights pursuant to the Arkansas Code and maintain the
perfected status of such dissenters' rights through the Closing Date,
UPC and FSB shall have the right, exercisable in their sole
discretion, to terminate this Reorganization Agreement, or with the
approval of the Board of Directors of PBTC reduce the number of shares
of UPC Common Stock to be delivered by UPC hereunder by an amount
sufficient to off-set against the Consideration any amounts paid, or
to be paid, by UPC in satisfaction of such dissenters' rights.
(2) EFFECT OF STOCK SPLITS, REVERSE STOCK
SPLITS, STOCK DIVIDENDS AND SIMILAR CHANGES IN THE CAPITAL OF UPC OR
PBTC. Should either UPC or PBTC effect any stock splits, reverse
stock splits, stock dividends or similar changes in their 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 proportionately in such a manner as the Board
of Directors of UPC and the Board of Directors of PBTC shall agree in
good faith to be fair and reasonable in order to give effect to such
changes.
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3.4 METHOD OF EXCHANGE. At the Closing and upon receipt of the
proper submission of the certificate(s) formerly representing and evidencing
ownership of the shares of PBTC Common Stock, the Exchange Agent shall, deliver
to the former PBTC Shareholders in exchange for the certificate(s) surrendered
by them, the Consideration to be paid for each such PBTC Shareholder's shares
of PBTC 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 PBTC
Common Stock of an PBTC 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 PBTC Record
Holder's shares of PBTC 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 PBTC Record Holder's PBTC Common Stock shall have
been surrendered as provided above, the Consideration payable to the PBTC
Record Holder(s) of the cancelled shares as of any time after the Effective
Date shall not be paid to the PBTC Record Holder(s) of such certificate(s)
until such certificates shall have been surrendered in the manner required.
Each PBTC Shareholder will be responsible for all federal, state and local
taxes which may be incurred by him on account of his receipt of the
Consideration to be paid in the Merger. The PBTC Record Holder(s) of any
certificate(s) which shall have been lost or destroyed may nevertheless,
subject to the provisions of this Section, receive the Consideration to which
each such PBTC Record Holder is entitled, provided that each such PBTC Record
Holder shall deliver to UPC and to the Exchange Agent: (i) a sworn statement
certifying 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 has been duly executed by a corporate surety satisfactory to UPC
and the Exchange Agent, indemnifying the Resulting Bank, 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 PBTC Shareholder.
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ARTICLE 4
APPROVALS OF THE ARKANSAS COMMISSIONER AND SHAREHOLDERS
4.1 APPROVALS. This Merger Agreement is subject to approval by the
Commissioner of ASBD, the FDIC and by the shareholders of FSB and PBTC. The
approval of UPC as sole shareholder of FSB has already been given.
ARTICLE 5
DISPOSAL OF DISSENTERS' SHARES
5.1 DISSENTING PBTC RECORD HOLDERS. The PBTC Record Holders who vote
against the Merger shall be entitled to receive the value of their PBTC Common
Shares in cash if and when the Merger becomes effective, upon written demand
made to the Resulting Bank at any time within thirty (30) days after the
Effective Time of the Merger accompanied by the certificates evidencing and
representing their PBTC Common Shares immediately prior to the Effective Time
of the Merger. The rights of dissenting PBTC Record Holders are provided in
Section 23-32-506 of the Arkansas Code.
ARTICLE 6
NON-CONFORMING ASSETS OR ACTIVITIES
6.1 NO NON-CONFORMING ASSETS OR ACTIVITIES. FSB does not now, nor
will the Resulting Bank upon the Merger becoming effective, hold any assets or
engage in any activity which is proscribed by applicable law for a
Arkansas-chartered bank or a bank holding company registered under the BHCA.
ARTICLE 7
EFFECTS OF THE MERGER
7.1 BUSINESS OF FSB. The business of FSB as the Resulting Bank from
and after the Effective Time of the Merger shall continue to be that of a
Arkansas-chartered banking corporation.
7.2 ACQUISITION OF ASSETS AND RIGHTS. At the Effective Time of the
Merger, the separate existence and corporate organization of PBTC shall cease,
and the Resulting Bank shall succeed to and shall have all of the rights,
properties, privileges, immunities, and powers of both PBTC and FSB accorded
MERGER AGREEMENT - ANNEX A TO AGREEMENT AND PLAN OF REORGANIZATION
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to it by the Arkansas Code. The Resulting Bank thereupon and thereafter shall
possess all the rights, privileges, powers, immunities, and franchises of a
public as well as a private nature, of both FSB and PBTC. All assets and
property, whether real, personal or mixed; and all debts due on whatever
account, including without limiting the generality of the foregoing, shares or
subscriptions to shares, all other choses in action, rights, and credits; and
all and every other interest of, or owned by, or due to, or that would inure to
either FSB or PBTC shall immediately by operation of law be taken or deemed to
be transferred to and vested in the Resulting Bank without any further
conveyance, transfer, act, or deed, and the title to any real estate or any
interest therein vested in either FSB or PBTC prior to the Effective Time of
the Merger shall not revert or be impaired in any way by reason of the Merger.
7.3 ASSUMPTION OF LIABILITIES. At the Effective Time of the Merger,
the Resulting Bank shall be deemed to be a continuation of the entity of each
Merging Bank with the effect set forth in the Arkansas Code, and shall succeed
to such rights and obligations and the duties and liabilities connected
therewith, and shall thenceforth be responsible and liable for all the
liabilities and obligations of the Merging Banks and any claim existing or any
action or proceeding pending by or against FSB or PBTC may be prosecuted as if
the Merger had not taken place. Neither the rights of creditors nor any liens
upon the property of PBTC or FSB shall be impaired by the Merger.
ARTICLE 8
EFFECTIVENESS
8.1 CONDITIONS PRECEDENT. Consummation of the Merger is conditioned
not only upon the approval of the Merger by the shareholders of PBTC as and to
the extent required by law but also upon the receipt of all requisite
Governmental Approvals as set forth in the Reorganization Agreement. The
Merger shall not be consummated unless and until approved as may be required by
law or by the Federal Reserve, the FDIC, the ASBD or by such other Regulatory
Authorities as may be required by law, nor shall the Merger be consummated
prior to the expiration of all required waiting periods. Consummation of the
Merger is also conditioned upon the fulfillment on or prior to the Effective
Time of the Merger of all conditions precedent set forth in Article 8 of the
Reorganization Agreement, or the waiver of such conditions in the manner
permitted by Section 9.2 of this Merger Agreement.
MERGER AGREEMENT - ANNEX A TO AGREEMENT AND PLAN OF REORGANIZATION
PAGE 76
<PAGE> 176
8.2 TERMINATION. This Merger Agreement may be terminated at any time
prior to the Effective Time of the Merger by the Parties as provided in Article
9 of the Reorganization Agreement.
8.3 EFFECTIVE TIME OF THE MERGER. Subject to the satisfaction of all
requirements of applicable laws and regulations and the terms and conditions
set forth herein, the Merger contemplated by this Merger Agreement shall be and
become effective at the time and on the date as this Merger Agreement shall be
filed with the Arkansas Commissioner in accordance with Section 23-32-503 of
the Arkansas Code, or at such later time or date as may be set forth in the
Merger Agreement or in an amendment to this Merger Agreement in accordance with
Section 9.2 of this Merger Agreement to be the Effective Time of the Merger.
ARTICLE 9
AMENDMENTS AND WAIVERS
9.1 AMENDMENTS. To the extent permitted by law, this Merger
Agreement may be amended unilaterally by UPC and PBTC as set forth in Section
2.1(g) of the Reorganization Agreement; provided, however, that the provisions
of Section 3.3 of this Merger Agreement relating to the manner or basis upon
which shares of PBTC 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 PBTC Record Holders
determined as provided in Section 3.3 of this Merger Agreement nor shall this
Merger Agreement be amended to permit UPC to utilize assets other than cash or
other good funds to make payment of the Consideration as provided in Section
3.4 at any time after the Shareholders' Meeting without the requisite approval
of the holders of the outstanding shares of PBTC Common Stock, and that no
amendment to this Merger Agreement shall modify the requirements of regulatory
approval as set forth in Section 4.4 of the Reorganization Agreement.
9.2 AUTHORITY FOR AMENDMENTS AND WAIVERS. Prior to the Effective
Time of the Merger, UPC and FSB, acting through their respective Boards of
Directors or chief executive officers or presidents or other authorized
officers, shall have the right to amend this Merger Agreement to postpone the
Effective Time of the Merger to a date and time subsequent to the time of
filing of the Merger Agreement with the Arkansas Commissioner as permitted by
Arkansas Code Section 23-32-503, to waive any default in the performance of any
term of this Merger Agreement by PBTC, to waive or extend the time for the
compliance or fulfillment by PBTC of any and all of its obligations under this
Merger
MERGER AGREEMENT - ANNEX A TO AGREEMENT AND PLAN OF REORGANIZATION
PAGE 77
<PAGE> 177
Agreement, and to waive any or all of the conditions precedent to the
obligations of UPC and FSB under this Merger Agreement, 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, FSB,
acting through its Board of Directors or chief executive officer or president
or other authorized officer, shall have the right to amend this Merger
Agreement to postpone the Effective Time of the Merger to a date and time
subsequent to the time of filing of the Merger Agreement with the Arkansas
Commissioner as permitted by Arkansas Code Section 23-32-503, to waive any
default in the performance of any term of this Merger Agreement by UPC or FSB,
to waive or extend the time for the compliance or fulfillment by UPC or FSB of
any and all of their obligations under this Merger Agreement, and to waive any
or all of the conditions precedent to the obligations of FSB under this Merger
Agreement except any condition that, if not satisfied, would result in the
violation of any law or applicable governmental regulation.
ARTICLE 10
MISCELLANEOUS
10.1 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:
UPC and FSB: Union Planters Corporation
7130 Goodlett Farms Parkway
Memphis, Arkansas 38018
Telecopy Number: (901) 383-2939
Attention: Mr. Jackson W. Moore
President
Gary A. Simanson, Esq.
Associate General Counsel
PBTC: Planters Bank & Trust Company
321 North Rosser Street
Street (P.O. Box 1539)
Forrest City, Arkansas 72335-1539
Fax: (501) 633-2894
Attn: Frankie L. Pratt, Chairman
With a copy to: Richard N. Massey, Esq.
MERGER AGREEMENT - ANNEX A TO AGREEMENT AND PLAN OF REORGANIZATION
PAGE 78
<PAGE> 178
Rose Law Firm
120 East Fourth Street
Little Rock, Arkansas 72201
Fax: (501) 375-1309
or at such other address as shall be furnished in writing by any of the Parties
to the others by notice given as provided in this Section 10.1.
10.2 GOVERNING LAW. Except to the extent federal law shall be
controlling, this Merger Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Arkansas disregarding,
however, the Arkansas conflicts of laws rules.
10.3 CAPTIONS. The Captions heading the Sections in this Merger
Agreement are for convenience only and shall not affect the construction or
interpretation of this Merger Agreement.
10.4 COUNTERPARTS. This Merger Agreement 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.
MERGER AGREEMENT - ANNEX A TO AGREEMENT AND PLAN OF REORGANIZATION
PAGE 79
<PAGE> 179
IN WITNESS WHEREOF, each of the Parties has caused this Merger
Agreement to be duly executed and delivered by their duly authorized officers
as of the date first above written.
UNION PLANTERS CORPORATION
By:
----------------------------
Jackson W. Moore
President
ATTEST:
---------------------------
E. J. House, Jr.
Secretary
PLANTERS BANK & TRUST COMPANY
By:
----------------------------
President
ATTEST:
----------------------------
----------------------------
Cashier
FIRST SOUTHERN BANK
By:
------------------------------
President
ATTEST:
----------------------------
----------------------------
Cashier
MERGER AGREEMENT - ANNEX A TO AGREEMENT AND PLAN OF REORGANIZATION
PAGE 80
<PAGE> 180
DIRECTOR APPROVALS
The undersigned directors of FIRST SOUTHERN BANK and PLANTERS BANK & TRUST
COMPANY this ____ day of __________, 199_, hereby certify their approvals of
the Merger of PLANTERS BANK & TRUST COMPANY with and into FIRST SOUTHERN BANK
as set forth in the foregoing Merger Agreement:
DIRECTORS OF:
FIRST SOUTHERN BANK LANTERS BANK & TRUST COMPANY
(____ in office) (____ in office)
- ------------------------------ ------------------------------
- ------------------------------ ------------------------------
- ------------------------------ ------------------------------
- ------------------------------ ------------------------------
- ------------------------------ ------------------------------
- ------------------------------
- ------------------------------
- ------------------------------
- ------------------------------
- ------------------------------
- ------------------------------
MERGER AGREEMENT - ANNEX A TO AGREEMENT AND PLAN OF REORGANIZATION
PAGE 81
<PAGE> 181
CERTIFICATE OF PRESIDENTS AND CASHIERS OF MERGING BANKS
The undersigned, being the Presidents and Cashiers of FIRST SOUTHER BANK and of
PLANTERS BANK & TRUST COMPANY (the "Merging Banks"), do hereby certify that the
within Merger Agreement has been duly approved by a majority of the entire
Board of Directors of each of the Merging Banks and has been duly approved by
the votes of the holders of more than two-thirds (2/3) of the outstanding
shares of each of the Merging Banks pursuant to meetings called in accordance
with their respective Bylaws and to Notice given by publication as required by
Section 23-32-503 of the Arkansas Code Annotated. Witness our hands this _____
day of _________________, 199_.
- ------------------------------ ------------------------------
President, President,
- ------------------------------ ------------------------------
Cashier, Cashier,
ACTION OF COMMISSIONER OF FINANCIAL INSTITUTIONS
MERGER AGREEMENT - ANNEX A TO AGREEMENT AND PLAN OF REORGANIZATION
PAGE 82
<PAGE> 182
STATE OF ARKANSAS )
COUNTY OF )
Before me, a notary public of the State and County mentioned, personally
appeared _____________________________________and ___________________________
_______________________________, with whom I am personally acquainted, and who,
upon oath, acknowledged themselves to be respectively the President and Cashier
of FIRST SOUTHERN BANK, the within named Merging Bank, a corporation, and that
they, as such President and Cashier, executed the foregoing instrument for the
purposes therein contained, by _________________________ signing the name of
the corporation by himself as President and by ___________________________
attesting the execution thereof as Cashier.
Witness my hand and seal, at office in _______________ Arkansas, this ____ day
of ________________, 199_.
----------------------------
Notary Public
My commission expires:
---------------------------
STATE OF ARKANSAS )
COUNTY OF ANDERSON )
Before me, a notary public of the State and County mentioned, personally
appeared _____________________________________and ____________________________
_______________________________, with whom I am personally acquainted, and who,
upon oath, acknowledged themselves to be respectively the President and Cashier
of PLANTERS BANK & TRUST COMPANY, the within named Merging Bank, a corporation,
and that they, as such President and Cashier, executed the foregoing instrument
for the purposes therein contained, by _________________________ signing the
name of the corporation by himself as President and by _____________________
___________________________ attesting the execution thereof as Cashier.
Witness my hand and seal, at office in _______________, this ____ day of
________________, 199_.
----------------------------
Notary Public
My commission expires:
---------------------------
MERGER AGREEMENT - ANNEX A TO AGREEMENT AND PLAN OF REORGANIZATION
PAGE 83
<PAGE> 183
APPENDIX C
ARKANSAS CODE OF 1987 ANNOTATED SECTION 23-32-506
PROVIDING FOR STOCKHOLDERS' DISSENTERS' RIGHTS
<PAGE> 184
23-32-506. DISSENTING STOCKHOLDERS
(a)(1) The owner of shares of a state bank which were voted against a
merger, consolidation, or conversion or who has given notice in writing to the
bank prior to the meeting of the stockholders approving the merger,
consolidation, or conversion, that he dissents from the merger, consolidation,
or conversion shall be entitled to receive in cash the value of the shares held
by him, if the merger, consolidation, or conversion is consummated and if the
dissenting stockholder has delivered a written demand for payment to the
resulting state or national bank at any time within twenty (20) days after the
date on which the stockholders' meeting authorizing the merger, consolidation,
or conversion was concluded.
(2) This written demand for payment shall state the number and the class
of shares owned by the dissenting stockholder. Any dissenting stockholder
failing to make the demand shall be bound by the terms of the merger,
consolidation or conversion.
(3) The resulting state or national bank shall fix an amount, which it
considers to be not more than the fair market value of the shares of the
merging, consolidating, or converting bank as of the date on which the
stockholders' meeting authorizing the merger, consolidation, or conversion was
concluded, which it will offer to pay dissenting stockholders entitle to
payment in cash. Upon receipt from a dissenting stockholder of a written
demand for payment in cash of the fair value of his shares, the resulting state
or national bank shall give the dissenting stockholder notice of the amount it
will pay for dissenting shares.
(4) Any dissenting stockholder may agree to accept the amount in lieu of
pursuing the appraisal remedy set forth below be delivering a written
acceptance of the offer to the resulting state or national bank within thirty
(30) days after the date on which the stockholders' meeting authorizing the
merger, consolidation, or conversion was concluded.
(b)(1) The value of the shares held by dissenting stockholders entitle to
receive in cash the value of the shares held by them, who do not accept the
offer of the resulting state or national bank within the thirty-day period set
forth above, shall be determined as of the date on which the stockholders'
meeting authorizing the merger, consolidation, or conversion was concluded by
three (3) appraisers. The appraisers are to be chosen as follows:
(A) One (1) shall be selected by the dissenting stockholders by the
vote of a majority of the aggregate number of dissenting shares held by the
dissenting stockholders;
(B) One (1) shall be selected by the board of directors of the
resulting state or national bank; and
(C) The third shall be selected by the two (2) so chosen.
(2) The valuation agreed upon by any two (2) of the three (3) appraisers
this chosen shall govern, However, if the value so fixed shall not be
satisfactory to any dissenting stockholder who has requested payment as
provided herein, the stockholder may, within (5) days after being notified of
the appraised value of his shares, appeal to the Bank Commissioner, who shall
cause a reappraisal to be made, which shall be final and binding as to the
value of the shares of the appellant.
(3) If, within ninety (90) days after the date on which the
stockholders; meeting authorizing the merger, consolidation, or conversion was
concluded, for any reason, one (1) or more of the appraisers
APPENDIX C Page 1
<PAGE> 185
is not selected as provided in this section, or the appraisers fail to
determine the value of the dissenting shares, the commissioner shall, upon
written request of any interested party made within five (5) days after the
expiration of the ninety-day period, cause an appraisal to be made which shall
be final and binding upon all parties.
(c)(1) The expenses of the appraiser selected by the dissenting
stockholders shall be paid by the dissenting stockholders.
(2) The expenses of the appraiser selected by the board of directors of
the resulting state or national bank shall be paid by the Resulting Bank.
(3) The expenses of the third appraiser shall by paid by prorated among
the dissenting stockholders and the Resulting Bank in such a manner as is
determined by the commissioner to be fair and equitable under the
circumstances.
(d)(1) If the commissioner is required to make the appraisal, his expenses
in making the appraisal shall be paid by and prorated among the dissenting
stockholders and the Resulting Bank in such a manner as is determined by the
commissioner to be fair and equitable under the circumstances.
(2) If the commissioner is required to make a reappraisal, his expenses in
making the reappraisal shall be paid by the appellant.
(e) If, within ninety (90) days after the date on which the stockholders'
meeting authorizing the merger, consolidation, or conversion was concluded, for
any reason, one (1) or more of the appraisers are not selected as provided in
this section, or the appraisers fail to determine the value of dissenting
shares, and if no written request to value the dissenting shares is filed with
the Bank Commissioner within five (5) days after the expiration of the
ninety-day period, then all dissenting stockholders who have failed to accept
the offer of the resulting state or national bank within the thirty-day period
prescribed above shall be bound by the terms of the merger, consolidation, or
conversion.
(f) The amount due a dissenting stockholder under an accepted offer of the
resulting state or national bank under the appraisal shall constitute a debt of
the resulting state or national bank which must be paid, if and when the
merger, consolidation or conversion is consummated, simultaneously with the
surrender by the dissenting stockholder of his shares.
(g) Within ten (10) days after the merger, consolidation, or conversion is
consummated, the resulting state or national bank shall give written notice of
the consummation to each dissenting stockholder who is entitled to receive in
cash the fair value of his shares.
(h) The plan of merger, consolidation or conversion shall provide for
payment of or the manner of disposing of any shares of the Resulting Bank not
taken by dissenting stockholders.
APPENDIX C Page 2
<PAGE> 186
APPENDIX D
PROPOSED CERTIFICATE OF AMENDMENT
TO THE
ARTICLES OF AGREEMENT AND INCORPORATION
OF
PLANTERS BANK & TRUST COMPANY
<PAGE> 187
DRAFT APPENDIX D
CERTIFICATE OF AMENDMENT OF CHARTER
of
PLANTERS BANK & TRUST COMPANY
Situated in Forrest City, St. Francis County, Arkansas
STATE OF ARKANSAS )
) SS
COUNTY OF ST. FRANCIS )
The undersigned, Frankie L. Pratt, as President, and Donna G. Garner,
as Cashier, respectively, of PLANTERS BANK & TRUST COMPANY situated in Forrest
City, St. Francis County, Arkansas (the "Bank"), hereby certify that at a
Special Meeting of the stockholders of the Bank which was duly called in
accordance with applicable law and the Bylaws of the Bank and held at the
offices of the Bank, 321 North Rosser, Forrest City, Arkansas 72335 at 10:00
a.m. CDT on June 16, 1995, the holders of record of more than ____% of the
authorized, issued and outstanding voting shares of the Bank voted to amend the
Corporation's Articles of Agreement and Incorporation by adding a new Article
________ thereto, incidental to, and effective only upon, consummation of, the
Merger referred to below; said new Article _________ to read as follows:
"TENTH: THE MERGER. On the _____ day of ______________, 1995, and
the ____ day of ____________, 1995, respectively, the respective Boards of
Directors of Planters Bank & Trust Company, having its main office in Forrest
City, St. Francis County, Arkansas, and First Southern Bank, having its main
office in Earle, Crittenden County, Arkansas, (the "Two Merging Banks")
approved, subject to obtaining all required regulatory and other approvals and
the satisfaction or waiver of all contractual conditions contained in that
certain Agreement and Plan of Reorganization dated as of February 10, 1995, to
which they were parties, a Merger Agreement ("Plan of Merger") pursuant to
which Planters Bank & Trust Company would be merged with and into First
Southern Bank under the Articles of Agreement and Incorporation and Bylaws of
First Southern Bank which would survive the Merger as the "Resulting Bank."
Said Plan of Merger contemplates that the name of the Resulting Bank would
continue to be "First Southern Bank" upon the said Merger becoming effective.
APPENDIX D Page 1
<PAGE> 188
"Section ____ of the Plan of Merger provides, in substance, that upon
and as of the Effective Time of the said Merger, each of the Two Merging Banks
would, as provided by Arkansas Statutes Annotated Section 23-32-507, be merged
with and into and continued in First Southern Bank as the Resulting Bank of the
Merger, and the Resulting Bank would be deemed to be the same bank as each of
the Two Merging Banks such that the separate corporate existences of the
merging banks would be merged into and continued under the Charter of the
Resulting Bank. Incidental to the Merger, upon and as of the Effective Time of
the Merger, all rights, franchises and interests of each of the Two Merging
Banks, in and to every type of property (whether real, personal or mixed) and
choses in action would be deemed transferred to and vested in the Resulting
Bank by virtue of the Merger becoming effective and without any deed or other
transfer, and the Resulting Bank, without any order or other action on the part
of any court or otherwise, would hold and enjoy all rights in property,
franchises, licenses and interests, including appointments, designations and
nominations, and all other rights and interests as trustee, executor,
administrator, registrar or transfer agent of stocks and bonds, guardian of
estates, assignee, receiver, and committee of estates of lunatics, and in every
other fiduciary capacity, in the same manner and to the same extent as such
rights, franchises and interests were held or enjoyed by each of the Two
Merging Banks and immediately prior to the Effective Time of the Merger.
Section ___ of the Plan of Merger provides, in substance, that upon and as of
the Effective Time of the Merger, the Resulting Bank shall become and be liable
for all then existing liabilities of each of the Two Merging Banks. All then
existing deposits, debts, liabilities, obligations and contracts of each
Merging Bank, whether matured or unmatured; whether accrued, absolute,
contingent or otherwise; and whether or not reflected or reserved against on
balance sheets, books of account or records of each Merging Bank, as the case
may be, would become and be those of the Resulting Bank and would not be
released or impaired by such Merger. All then existing rights of creditors and
other obligees and all liens on property of either the Merging Bank or this
Corporation would be preserved unimpaired.
"The Merger having been consummated effective on the 1st day of
August, 1995, the Resulting Bank continuing after consummation of the Mergers,
shall have the power to continue in merged form the operations of each of the
Two Merging Banks under the Articles of Agreement and Incorporation of First
Southern Bank and the separate existence of Planters Bank & Trust Company shall
cease."
CERTIFICATION
The number of voting shares of Planters Bank & Trust Company
outstanding on the record date with respect to which the above-described action
was taken by the stockholders of Planters Bank & Trust Company at the Special
Meeting held June 16, 1995, was Twenty-four Thousand (24,000) shares of Common
Stock having a par value of $25.00 per share.
On the ____ day of __________, 1995, the Board of Directors of the
Corporation adopted a resolution providing that the matter of said charter
amendment be submitted to the stockholders for their approval at a Special
Meeting to be called for that purpose.
Notice of said Special Meeting and a statement of the nature of the
business proposed to be acted upon at same was duly mailed to the stockholders
on May 11, 1995. Said information was in the form of proxy materials complying
with the requirements of Arkansas law and the Securities and Exchange
Commission on its Form S-4.
APPENDIX D Page 2
<PAGE> 189
At the Special Meeting held June 16, 1995, the stockholders of record
on the record date set for the Special Meeting voted ___________ outstanding
shares of Planters Bank & Trust Company in favor of adoption of said Charter
amendment which constituted ___% of its 24,000 outstanding voting shares.
IN WITNESS WHEREOF we have hereunto set our hands and the Seal of the
Bank on this ______ day of ______, 1995.
<TABLE>
<S> <C>
____________________________________
Frankie L. Pratt, President
[SEAL]
____________________________________
Donna G. Garner, Cashier
Subscribed and sworn to before me at office this ______ day of ________________, 1995.
[SEAL]
____________________________________
Notary Public
My Commission Expires:
__________________________________
</TABLE>
APPENDIX D Page 3
<PAGE> 190
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Restated Charter of the Registrant provides as follows:
TWELFTH: INDEMNIFICATION OF CERTAIN PERSONS:
To the fullest extent permitted by Tennessee law, the Corporation may indemnify
or purchase and maintain insurance to indemnify any of its directors, officers,
employees or agents and any persons who may serve at the request of the
Corporation as directors, officers, employees, trustees or agents of any other
corporation, firm, association, national banking association, state-chartered
bank, trust company, business trust, organization or any other type of entity
whether or not the Corporation shall have any ownership interest in such
entity. Such indemnification(s) may be provided for in the Bylaws, or by
resolution of the Board of Directors or by appropriate contract with the person
involved.
Article V, INDEMNIFICATION, of the Registrant's Bylaws provides as follows:
The Corporation does hereby indemnify its directors and officers to the fullest
extent permitted by the laws of the State of Tennessee and by ARTICLE TWELFTH
of its Charter. The Corporation may indemnify any other person to the extent
permitted by the Charter and by applicable law.
Indemnification of corporate directors and officers is governed by Sections
48-18-501 through 48-18-509 of the Tennessee Business Corporation Act (the
"Act"). Under the Act, a person may be indemnified by a corporation against
judgments, fines, amounts paid in settlement and reasonable expenses (including
attorneys' fees) actually and necessarily incurred by him in connection with
any threatened or pending suit or proceeding or any appeal thereof (other than
an action by or in the right of the corporation), whether civil or criminal, by
reason of the fact that he is or was a director or officer of the corporation
or is or was serving at the request of the corporation as a director or
officer, employee or agent of another corporation of any type or kind, domestic
or foreign, if such director or officer acted in good faith for a purpose which
he reasonably believed to be in the best interest of the corporation and, in
criminal actions or proceedings only, in addition, had no reasonable cause to
believe that his conduct was unlawful. A Tennessee corporation may indemnify a
director or officer thereof in a suit by or in the right of the corporation
against amounts paid in settlement and reasonable expenses, including
attorneys' fees, actually and necessarily incurred as a result of such suit
unless such director or officer did not act in good faith or with the degree of
diligence, care and skill which ordinarily prudent men exercise under similar
circumstances and in like positions.
A person who has been wholly successful, on the merits or otherwise, in the
defense of any of the foregoing types of suits or proceedings is entitled to
indemnification for the foregoing amounts. A person who has not been wholly
successful in any such suit or proceeding may be indemnified only upon the
order of a court or a finding that the director or officer met the required
statutory standard of conduct by (i) a majority vote of a disinterested quorum
of the
II-I
<PAGE> 191
board of Directors, (ii) the Board of Directors based upon the written opinion
of independent legal counsel to such effect, or (iii) a vote of the
shareholders.
ITEM 21. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
2 -- Agreement and Plan of Reorganization dated as of February
10, 1995, by and between Union Planters Corporation,
Planters Bank & Trust Company and First Southern Bank
along with the Merger Agreement annexed thereto as
Exhibit A (included as Appendix B to the Prospectus).
5 -- Opinion of E. James House, Jr., Esquire, Secretary and
Manager of the Legal department of Union Planters
Corporation, regarding legality of the Union Planters
Corporation Common Stock having a par value of $5.00 per
share.
8 -- Opinion of McDonnell Dyer, a professional limited company,
Counsel to Union Planters Corporation, regarding the
tax-free status of the reorganization contemplated by the
Reorganization Agreement.
23(a) -- Consent of E. James House, Jr., Esq. (included in
Exhibit 5).
23(b) -- Consent of Price Waterhouse LLP
23(c) -- Consent of Price Waterhouse LLP
23(d) -- Consent of McDonnell Dyer, P.L.C. (included in Exhibit 8)
24 -- Power of Attorney (included in signature pages).
99(a) -- Form of Proxy
ITEM 22. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange
Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(2) That for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as a part of a registration in reliance upon Rule
430A and contained in the form of prospectus filed
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<PAGE> 192
by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under
the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(3) That for purposes of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(4) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel, the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction, the question whether such indemnification by
its is public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
(5) To respond to requests for information that is
incorporated by reference into the prospectus pursuant to Items 4,
10(b), 11, or 13 of this Form S-4, within one business day of receipt
of such request, and to send the incorporated documents by first class
mail or other equally prompt means. This includes information
contained in documents filed subsequent to the effective date of the
registration statement through the date of responding to the request.
(6) To supply by means of a post-effective amendment all
information concerning a transaction, and the company being acquired
involved therein, that was not the subject of and included in the
registration statement when it became effective.
II-3
<PAGE> 193
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized in the City
of Memphis, State of Tennessee, on the 27th day of April, 1995.
DATE: April 27, 1995
UNION PLANTERS CORPORATION
By: /s/
------------------------------
Benjamin W. Rawlins, Jr.
Chairman of the Board
We, the undersigned directors and officers of Union Planters Corporation do
hereby constitute and appoint E. James House, Jr. and M. Kirk Walters, and
each of them, our true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for us and in our name, place and stead, in
any and all capacities, to sign any and all amendments to this Registration
Statement and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, and we do
hereby ratify and confirm all that said attorneys-in-fact and agents, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
Name Capacity Date
- ---- -------- ----
<S> <C> <C>
/s/ Chairman of the Board, April 27, 1995
- ----------------------------- Chief Executive Officer,
Benjamin W. Rawlins, Jr. Director (Principal
Executive Officer)
/s/ Executive Vice President April 27, 1995
- ----------------------------- and Chief Financial
John W. Parker Officer (Principal
Financial Officer)
/s/ Senior Vice President, April 27, 1995
- ----------------------------- Treasurer and Chief
M. Kirk Walters Accounting Officer
/s/ Director April 27, 1995
- -----------------------------
Albert M. Austin
/s/ Director April 27, 1995
- -----------------------------
Marvin E. Bruce
Director April __, 1995
- -----------------------------
George W. Bryan
</TABLE>
II-4
<PAGE> 194
<TABLE>
<S> <C> <C>
/s/ Director April 27, 1995
- -----------------------------
Robert B. Colbert, Jr.
/s/ Director April 27, 1995
- -----------------------------
C. J. Lowrance, III
/s/ President and Director April 27, 1995
- -----------------------------
Jackson W. Moore
/s/ Director April 27, 1995
- -----------------------------
Stanley D. Overton
/s/ Director April 27, 1995
- -----------------------------
V. Lane Rawlins
/s/ Director April 27, 1995
- -----------------------------
Mike P. Sturdivant
/s/ Director April 27, 1995
- -----------------------------
Richard A. Trippeer, Jr.
/s/ Director April 27, 1995
- -----------------------------
Milton J. Womack
</TABLE>
II-5
<PAGE> 1
LOGO EXHIBIT 5
UNION PLANTERS CORPORATION
May 3, 1995
Union Planters Corporation
7130 Goodlett Farms Parkway
Memphis, Tennessee 38018
Re: 353,193 shares of the Common Stock, $5.00 par value per share,
of Union Planters Corporation ("UPC")
Gentlemen:
The undersigned has participated in the preparation of a registration statement
on Form S-4 (the "Registration Statement") for filing with the Securities and
Exchange Commission in respect to not more than 353,193 shares of UPC's Common
Stock (the "Shares") which may be issued by UPC pursuant to an Agreement and
Plan of Reorganization dated as of February 10, 1995, by and between UPC,
Planters Bank & Trust Company and First Southern Bank (the "Agreement").
For purposes of rendering the opinion expressed herein, the undersigned has
examined UPC's corporate charter and all amendments thereto; UPC's by-laws and
amendments thereto; the Agreement and such of UPC's corporate records as the
undersigned has deemed necessary and material to rendering the undersigned's
opinion. The undersigned has relied upon certificates of public officials and
representations of UPC officials, and has assumed that all documents examined
by the undersigned as originals are authentic, that all documents submitted to
the undersigned as photocopies are exact duplicates of original documents, and
that all signatures on all documents are genuine.
Further, the undersigned is familiar with and has supervised all corporate
action taken in connection with the authorization of the sale of the subject
securities.
Based upon and subject to the foregoing and subsequent assumptions,
qualifications and exceptions, it is the undersigned's opinion that:
1. UPC is a duly organized and validly existing corporation in good standing
under the laws of the State of Tennessee and has all requisite power and
authority to issue, sell and deliver the subject securities, and to carry on
its business and own its property; and
2. The Shares have been duly authorized and when issued by UPC in accordance
with the Agreement, the Shares will be fully paid and nonassessable.
The opinion expressed above is limited by the following assumptions,
qualifications and exceptions.
<PAGE> 2
Union Planters Corporation
May 3, 1995
Page 2
(a) The undersigned is licensed to practice law only in the State
of Tennessee and expresses no opinion with respect to the effect of any laws
other than those of the State of Tennessee and the United States of America.
(b) The opinion stated herein is based upon statutes, regulations,
rules, court decisions and other authorities existing and effective as of the
date of this opinion, and the undersigned undertakes no responsibility to
update or supplement said opinion in the event of or in response to any
subsequent changes in the law or said authorities, or upon the occurrence after
the date hereof of events or circumstances that, if occurring prior to the date
hereof, might have resulted in a different opinion.
(c) This opinion has been rendered solely for the benefit of Union
Planters Corporation and no other person or entity shall be entitled to rely
hereon without the express written consent of the undersigned.
(d) This opinion is limited to the legal matters expressly set
forth herein, and no opinion is to be implied or inferred beyond the legal
matters expressly so addressed.
The undersigned hereby consents to the undersigned being named as a party
rendering a legal opinion under the caption "Validity of UPC Common Stock" in
the Prospectus constituting part of the Registration Statement and to the
filing of this opinion with the Securities and Exchange Commission as well as
all state regulatory bodies and jurisdictions where qualification is sought for
the sale of the subject securities.
The undersigned is an officer of and receives compensation from UPC and
therefore is not independent from UPC.
Very truly yours,
UNION PLANTERS CORPORATION
By: /s/ E. James House, Jr.
-----------------------
E. James House, Jr.
<PAGE> 1
EXHIBIT 8
[LETTERHEAD OF MCDONNELL DYER, P.L.C.]
[FORM OF OPINION]
July __, 1995
Jackson W. Moore, President
Union Planters Corporation
7130 Goodlett Farms Parkway
Memphis, Tennessee 38018
Frankie L. Pratt, Chairman
Planters Bank & Trust Company
321 North Rosser Street
Forrest City, Arkansas 72335-1539
Re: Agreement and Plan of Reorganization dated as of February 10, 1995 between
Union Planters Corporation ("UPC"), First Southern Bank ("FSB") and Planters
Bank & Trust Company ("PBTC").
Dear Gentlemen:
This Response to your request for information ("Response") is governed
by, and shall be interpreted in accordance with, the Legal Opinion Accord (the
"Accord") of the ABA Section of Business Law (1991). As a consequence, it is
subject to a number of qualifications, exceptions, definitions, limitations on
coverage and other limitations, all as more particularly described in the
Accord, and this Response should be read in conjunction therewith. Capitalized
terms not defined herein shall be defined as in the Accord. Capitalized terms
used in this opinion which are not defined in the Accord or in this opinion
shall have the same meaning ascribed to such terms in the Agreement and Plan of
Reorganization dated as of February 10, 1995.
The following opinion is based upon the existing provisions of the
Internal Revenue Code ("Code") and regulations thereunder (both final and
proposed) and upon current Internal Revenue Service ("Service") published
rulings and existing court decisions, any of which could be changed at any
time. Any such changes may be retroactive and could significantly modify the
statements and opinions expressed herein. Similarly, any change
<PAGE> 2
in the facts and assumptions stated below, upon which this opinion is based,
could modify the conclusion.
We understand that PBTC will be merged with and into FSB and that FSB
will be the survivor of the merger. We assume that the Merger will be
accomplished in accordance with the Agreement and Plan of Reorganization. No
changes to the structure pursuant to Section 2.5 of the Agreement have been
made by UPC. Pursuant to the Agreement, the stockholders of PBTC would
receive a "Base Consideration" of 14.21630 shares of Union Planters Corporation
Common Stock in exchange for each share of PBTC Common Stock held by them of
record immediately before the Effective Time of the Merger. The PBTC
stockholders would also be entitled to receive "Additional Consideration" in
the aggregate amount of $40,000 per month through the Closing Date for each
month following April 1995. At the election of UPC, the form of the Additional
Consideration would be either a cash payment or additional shares of UPC Common
Stock, based upon a value of $23.33 per share for purposes of the calculation.
The following further assumptions have been made in connection with
the Merger:
A. The fair market value of the UPC Common Stock and other
consideration received by each stockholder of PBTC will be
approximately equal to the fair market value of the PBTC Common Stock
surrendered in the exchange.
B. There is no plan or intention by the stockholders of PBTC who own
five percent (5%) or more of the PBTC Common Stock, and to the best of
the knowledge of the management of PBTC, there is no plan or intention
on the part of the remaining stockholders of PBTC to sell, exchange or
otherwise dispose of a number of shares of UPC Common Stock received
in the transaction that would reduce the PBTC stockholders' ownership
of UPC Common Stock to a number of shares having a value, as of the
date of the transaction, of less than fifty percent (50%) of the value
of all of the formerly outstanding stock of PBTC as of the same date.
For purposes of this assumption, shares of PBTC Common Stock exchanged
for cash or other property or surrendered by dissenters or exchanged
for cash in lieu of fractional shares of UPC Common Stock will be
treated as outstanding PBTC Common Stock on the date of the
transaction. Moreover, shares of PBTC Common Stock and shares of UPC
Common Stock held by PBTC stockholders and otherwise sold, redeemed,
or disposed of prior or subsequent to the transaction will be
considered in making this assumption.
C. FSB will acquire at least ninety percent (90%) of the fair market
value of the net assets and at least seventy percent (70%) of the fair
market value of the gross assets held by PBTC immediately prior to the
transaction. For purposes of this assumption, amounts paid by PBTC to
dissenters, amounts paid by PBTC to stockholders who receive cash or
other property, PBTC assets used to pay its reorganization expenses,
and all redemptions and distributions (except for regular, normal
dividends) made by PBTC immediately preceding the transfer, will be
included as assets of PBTC held immediately prior to the transaction.
2
<PAGE> 3
D. Prior to the transaction, UPC will be in control of FSB within the
meaning of Section 368(c) of the Code.
E. Following the transaction, FSB will not issue additional shares of
its stock that would result in UPC losing control of FSB within the
meaning of Section 368(c) of the Code.
F. UPC has no plan or intention to redeem or otherwise reacquire any
of its stock to be issued in the proposed transaction.
G. UPC has no plan or intention to liquidate FSB; to merge FSB with
and into another corporation; to sell or otherwise dispose of the
stock of FSB; or to cause FSB to sell or otherwise dispose of any of
the assets of PBTC to be acquired in the proposed transaction, except
for dispositions made in the ordinary course of business or transfers
described in Section 368(a)(2)(C) of the Code.
H. The liabilities of PBTC to be assumed by FSB and the liabilities
to which the transferred assets of PBTC are subject were incurred by
PBTC in the ordinary course of its business and are associated with
the assets to be transferred.
I. Following the transaction, FSB will continue the historic business
of PBTC or use a significant portion of PBTC's business assets in a
business.
J. UPC, PBTC, FSB and the stockholders of PBTC will pay their
respective expenses, if any, incurred in connection with the proposed
transaction.
K. There is no intercorporate indebtedness existing between UPC and
PBTC or between FSB and PBTC that was issued, acquired, or will be
settled at a discount.
L. No two parties to the transaction are investment companies as
defined in Sections 368(a)(2)(F)(iii) and (iv) of the Code.
M. PBTC is not under the jurisdiction of a court in a Title 11 or
similar case within the meaning of Section 368(a)(3)(A) of the Code.
N. The fair market value of the PBTC assets to be transferred to FSB
will equal or exceed the sum of PBTC's liabilities to be assumed by
FSB plus the liabilities, if any, to which the transferred assets are
subject.
O. No stock of FSB will be issued to any of the stockholders of PBTC
in the merger transaction.
P. There is no larger integrated transaction of which the proposed
transaction constitutes only one step.
Q. The expenses of the proposed transaction and the amount to be paid
to dissenters, if any, will not exceed ten percent (10%) of the fair
market value of the net assets of PBTC.
3
<PAGE> 4
R. There were no redemptions of PBTC Common Stock within the past
three years.
S. FSB has no plan or intention of disposing of the assets of PBTC to
be received by it in the proposed transaction, other than in the
ordinary course of business.
T. No dividends or distributions, other than regular normal
dividends, have been or will be made with respect to any stock of PBTC
immediately prior to the proposed transaction.
U. None of the compensation received by any stockholder-employees of
PBTC will be separate consideration for, or allocable to, any of their
shares of PBTC Common Stock; none of the shares of UPC Common Stock
received by any stockholder-employees will be separate consideration
for, or allocable to, any employment agreement; and the compensation
paid to any stockholder-employees will be for services actually
rendered and will be commensurate with amounts paid to third parties
bargaining at arm's-length for similar services.
Based solely on the information submitted and the representations and
assumptions set forth above, we are of the opinion that:
1. Provided the merger of PBTC with and into FSB qualifies as a
statutory merger under the applicable state laws, the acquisition by
FSB of substantially all of the assets of PBTC in exchange for the
common stock of UPC and the assumption by FSB of all of the
liabilities of PBTC plus liabilities to which the assets of PBTC may
be subject, will qualify as a reorganization within the meaning of
Sections 368(a)(1)(A) and 368(a)(2)(D) of the Code. UPC, FSB, and PBTC
will each be "a party to a reorganization" within the meaning of
Section 368(b).
2. No gain or loss will be recognized to PBTC on the transfer of
substantially all of its assets to FSB in exchange for stock of UPC
and the assumption by FSB of all of the liabilities of PBTC plus the
liabilities to which the assets of PBTC may be subject. Sections
361(a) and 357(a)(1).
3. No gain or loss will be recognized to the stockholders of PBTC
upon the exchange of their PBTC common stock solely for voting common
stock of UPC. Section 354(a)(1).
4. The basis of the shares of UPC Common Stock to be received by the
stockholders of PBTC will be the same as the basis of the shares of
PBTC Common Stock surrendered in exchange therefor. Section 358(a)(1).
5. The holding period of the shares of UPC Common Stock to be
received by the stockholders of PBTC will include the period during
which the PBTC Common Stock, surrendered in exchange therefor, was
held by the stockholders of PBTC, provided the PBTC Common Stock was
held as a capital asset in the hands of the stockholders of PBTC at
the time of the exchange. Section 1223(1).
4
<PAGE> 5
6. No gain or loss will be recognized to either UPC or FSB upon the
receipt by FSB of substantially all of the assets of PBTC in exchange
for UPC Common Stock and the assumption by FSB of the liabilities of
PBTC. Rev. Rul. 57-278, 1957-1 C.B. 124.
7. The basis of the assets of PBTC received by FSB will be the same
as the basis of such assets in the hands of PBTC immediately prior to
the exchange. Section 362(b).
8. The holding period of the assets of PBTC in the hands of FSB will,
in each instance, include the period during which such assets were
held by PBTC. Section 1223(2).
9. Where a dissenting stockholder receives solely cash in exchange
for his or her PBTC Common Stock, such cash will be treated as having
been received as a distribution in redemption of his or her PBTC
Common Stock, subject to the provisions of section 302 of the Code.
Rev. Rul. 74-502, 1974-2 C.B. 116 and Rev. Rul. 74-515, 1974-2 C.B.
118.
10. The payment of cash to a PBTC stockholder in lieu of fractional
share interest in UPC Common Stock will be treated as if the
fractional share were distributed as part of the exchange and then
were redeemed by UPC. These cash payments will be treated as having
been received as distributions in full payment in exchange for the
voting common stock redeemed as provided in section 302(a) of the
Code. Rev. Rul. 66-365, 1966-2 C.B. 116 and Rev. Proc. 77-41, 1977-2
C.B. 574.
We, of course, opine only as to the matters we expressly set forth,
and no opinions should be inferred as to any other matter or as to the tax
treatment of issues or transactions that we do not specifically address.
Without limiting the foregoing, we express no opinion with respect to the
characterization or tax effect to UPC, FSB, PBTC or the PBTC stockholders of
payments of Additional Consideration to PBTC stockholders.
This opinion represents our best judgment as to the probable outcome
of the tax issues discussed and is not binding on the Internal Revenue Service.
We can give no assurance that the Service will not challenge our conclusions
and prevail in the courts in such a manner as to cause adverse tax consequences
to UPC, FSB, PBTC or PBTC stockholders.
The opinions and views we express are based upon our best
interpretations of existing law; we can give no assurance that our
interpretations would be followed if the issues became the subject of judicial
or administrative proceedings. Realization of certain of the tax benefits
described is subject to the significant risk that the Internal Revenue Service
may challenge the tax treatment and that a court may sustain that challenge.
Because taxpayers bear the burden of proof required to support claimed
deductions and credits, the opinions expressed as to the likelihood of
realization of various tax benefits
5
<PAGE> 6
assume that UPC or PBTC will undertake the effort and expense to present fully
the case in support of any matter the Service challenges.
This opinion is addressed to and is for the benefit solely of UPC,
FSB, PBTC and PBTC stockholders. No other person or persons shall be furnished
a copy of this opinion or shall be entitled to rely on the contents herein
without our express written consent.
The opinions expressed in this letter are based on the facts as stated
and the documents, representations, assumptions, and statements to which
reference is made herein as well as other investigations of facts as we have
deemed necessary and appropriate. Any inaccuracy in any such fact,
representation, assumption or statement, any amendment to such documents, or
any material adverse change in the affairs of UPC, PBTC or affiliates of either
corporation, may have the effect of changing all or a part of this opinion.
We hereby consent to the reference to our firm in the Prospectus under
the caption "Certain Federal Income Tax Consequences" and further consent to
the filing of a copy of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
MCDONNELL DYER, P.L.C.
6
<PAGE> 1
EXHIBIT 23(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-4 of Union Planters
Corporation of our report dated January 26, 1995, which appears on page 35 of
Union Planters Corporation's 1994 Annual Report to Shareholders, which is
incorporated by reference in its Annual Report on Form 10-K for the year ended
December 31, 1994. We also consent to the reference to us under the heading
"Experts" in such Prospectus.
PRICE WATERHOUSE LLP
Memphis, Tennessee
May 3, 1995
<PAGE> 1
EXHIBIT 23(c)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in the Prospectus constituting part of this
Registration Statement on Form S-4 of Union Planters Corporation of our report
dated March 17, 1995 relating to the financial statements of Planters Bank &
Trust Company as of and for the year ended December 31, 1994, which appears in
such Prospectus. We also consent to the reference to us under the heading
"Experts" in such Prospectus.
PRICE WATERHOUSE LLP
Memphis, Tennessee
May 3, 1995
<PAGE> 1
PROXY EXHIBIT 99(a)
PLANTERS BANK & TRUST COMPANY
No. of Shares ___________________
321 NORTH ROSSER
FORREST CITY, ARKANSAS 72335
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints Frankie L. Pratt and Donna G. Garner or
either of them acting alone, as proxies, each with the power to appoint such
person's substitute, and hereby authorizes them to vote, as designated below,
all of the shares of common stock of Planters Bank & Trust Company ("PBTC")
held of record by the undersigned on April 28, 1995, at the Special Meeting of
Stockholders of Planters Bank & Trust Company to be held on Friday, June 16,
1995, or at any adjournments or postponements thereof.
1. APPROVAL OF AGREEMENT AND PLAN OF REORGANIZATION BY AND BETWEEN
PLANTERS BANK & TRUST COMPANY, UNION PLANTERS CORPORATION AND FIRST
SOUTHERN BANK DATED AS OF FEBRUARY 10, 1995, ALONG WITH THE MERGER
AGREEMENT ANNEXED THERETO AS EXHIBIT A, INCLUDING APPROVAL OF AN
AMENDMENT TO PBTC'S ARTICLES OF AGREEMENT AND INCORPORATION REQUIRED
TO EFFECT THE MERGER CONTEMPLATED BY THE PLAN OF REORGANIZATION (the
"CHARTER AMENDMENT").
FOR APPROVAL OF REORGANIZATION AGREEMENT AND THE _____
MERGER AGREEMENT ANNEXED THERETO AS EXHIBIT A AND
THE RELATED CHARTER AMENDMENT
AGAINST APPROVAL OF REORGANIZATION AGREEMENT AND _____
THE MERGER AGREEMENT ANNEXED THERETO AS EXHIBIT A AND
THE RELATED CHARTER AMENDMENT.
2. In their discretion, the proxies are authorized to vote upon such
other business as may properly come before the meeting.
(Continued on other side)
<PAGE> 2
(Continued from other side)
This proxy, when properly executed, will be voted in the manner
directed herein by the undersigned stockholder. If no direction is made, this
proxy will be voted "FOR" approval of the Reorganization Agreement and the
Merger Agreement annexed thereto as Exhibit A as well as the related Charter
Amendment.
Dated: , 1995
______________________________
Signature
______________________________
Signature
______________________________
(if held jointly)
Please sign exactly as name appears to left. When
shares are held by joint tenants, both should sign.
When signing as attorney, executor, administrator,
trustee or guardian, please give full title as such.
If a corporation, please sign full corporate name by
President or other authorized officer. If a
partnership, please sign in partnership name by
authorized person.
PLEASE MARK, SIGN, DATE AND RETURN THE PROXY CARD PROMPTLY USING THE ENCLOSED
ENVELOPE.
