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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
June 16, 1995
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BancorpSouth, Inc.
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(Exact name of registrant as specified in its charter)
Mississippi 0-10826 64-0659571
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(State or Other (Commission File (I.R.S. Employer
Jurisdiction of Number) Identification
Incorporation) Number)
One Mississippi Plaza
Tupelo, Mississippi 38801
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(Address of principal executive offices) (Zip Code)
(601) 680-2000
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(Registrant's telephone number, including area code)
Not Applicable
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(Former name or former address, if changed since last report)
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Page 1 of 4 pages
Exhibit Index located on Page 4
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ITEM 5. OTHER EVENTS.
On June 16, 1995, the Registrant and Wes-Tenn Bancorp, Inc., a
Tennessee corporation ("Wes-Tenn"), entered into an Agreement and Plan of
Merger providing for the merger of Wes-Tenn with and into the Registrant, with
the Registrant being the surviving corporation (the "Merger"). Simultaneously
with the Merger, Tennessee Community Bank, a Tennessee banking corporation and
wholly-owned subsidiary of Wes-Tenn, will be merged with and into Volunteer
Bank, the Registrant's Tennessee banking subsidiary ("Volunteer"), with
Volunteer being the surviving bank.
Each holder of Wes-Tenn common stock will be entitled to receive
0.6296 of a share of the Registrant's common stock (subject to appropriate
adjustment in the event of certain occurrences) in exchange for each
outstanding share of Wes-Tenn common stock.
The closing of the Merger is subject to certain conditions, including
the approval of the shareholders of Wes-Tenn and the Registrant (if required),
and the receipt of applicable regulatory approvals or consents, including those
of the Federal Reserve Board and the Tennessee Department of Financial
Institutions. The parties anticipate closing the Merger on or around
December 31, 1995.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL STATEMENTS AND EXHIBITS
(c) EXHIBITS.
2. Agreement and Plan of Merger, dated as of June 16, 1995,
by and between the Registrant and Wes-Tenn
99.1 Press Release of the Registrant, dated June 16, 1995,
announcing the execution of the Agreement and Plan of
Merger
99.2 Press Release of Wes-Tenn, dated June 16, 1995,
announcing the execution of the Agreement and Plan of
Merger
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BANCORPSOUTH, INC.
By: /s/ Cathy M. Robertson
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Cathy M. Robertson, First Vice
President and Corporate
Secretary
Date: June 21, 1995
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION OF EXHIBITS NUMBER
- ------ ----------------------- ------
<S> <C> <C>
2 Agreement and Plan of Merger, dated as of
June 16, 1995, by and between the Registrant
and Wes-Tenn
99.1 Press Release of the Registrant, dated
June 16, 1995, announcing the execution
of the Agreement and Plan of Merger
99.2 Press Release of Wes-Tenn, dated
June 16, 1995, announcing the execution
of the Agreement and Plan of Merger
</TABLE>
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EXHIBIT 2
AGREEMENT AND PLAN OF MERGER
BETWEEN
BANCORPSOUTH, INC.
AND
WES-TENN BANCORP, INC.
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Agreement") is made and entered into
as of June 16, 1995 by and between BANCORPSOUTH, INC., a Mississippi
corporation having its principal place of business in Tupelo, Mississippi
("BancorpSouth"), and WES-TENN BANCORP, INC., a Tennessee corporation having
its principal place of business in Covington, Tennessee ("Wes-Tenn").
WHEREAS, BancorpSouth, a registered bank holding company under the Bank
Holding Company Act of 1956, as amended (the "Act"), is the owner of all of the
issued and outstanding shares of common stock of Volunteer Bank, a Tennessee
banking corporation headquartered in Jackson, Tennessee ("Volunteer"); and
WHEREAS, Wes-Tenn, a registered bank holding company under the Act, is
the owner of all of the issued and outstanding shares of common stock of
Tennessee Community Bank, a Tennessee banking corporation headquartered in
Covington, Tennessee ("TCB"), and TCB is the owner of all of the issued and
outstanding shares of common stock of (i) TC Finance, Inc, a Tennessee
corporation ("TCF"), (ii) Wes-Tenn Mortgage Finance, Inc., a Tennessee
corporation ("Wes-Tenn Mortgage"), and (iii) West Tennessee Life Insurance
Company, an Arizona corporation ("West Tennessee Life") (TCF, Wes-Tenn
Mortgage, and West Tennessee Life being hereinafter collectively referred to as
the "TCB Subsidiaries"); and
WHEREAS, the parties hereto deem it desirable for TCB and the TCB
Subsidiaries to be acquired by BancorpSouth through the merger of Wes-Tenn with
and into BancorpSouth pursuant to the applicable laws of Mississippi and
Tennessee and in accordance with the provisions of this Agreement (the "Parent
Merger") and simultaneously therewith, for TCB to be merged with and into
Volunteer pursuant to the applicable laws of Tennessee and in accordance with
the provisions of this Agreement (the "Bank Merger" and collectively with the
Parent Merger, the "Transaction"); and
WHEREAS, the Boards of Directors of BancorpSouth and Wes-Tenn are of the
opinion that the transactions described herein are in the best interests of the
parties to this Agreement and their respective shareholders; and
WHEREAS, the mergers described herein are subject to the approvals of the
shareholders of Wes-Tenn (and under certain
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circumstances, of BancorpSouth), the Board of Governors of the Federal Reserve
System, the Commissioner of the Department of Financial Institutions of the
State of Tennessee and the Federal Deposit Insurance Corporation, and the
satisfaction of certain other conditions described in this Agreement; and
WHEREAS, the parties intend that this Agreement constitute a plan of
reorganization by a transaction of a type described in Section 368(a) of the
Code; and
WHEREAS, the parties hereto desire to enter into this Agreement for the
purpose of setting forth certain representations, warranties, agreements,
covenants, conditions, and other provisions with respect to the Transaction;
NOW, THEREFORE, in consideration of the mutual agreements, covenants, and
other provisions herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
ARTICLE ONE
THE TRANSACTION
Section 1.1 Components of the Transaction. (a) Subject to the
adoption and approval by the shareholders of Wes-Tenn (and of BancorpSouth if
necessary) of this Agreement, and subject to the other terms and conditions
contained herein, at the Effective Time of the Transaction (as defined in
Section 1.8 hereof), Wes-Tenn shall be merged with and into BancorpSouth, (with
BancorpSouth being the resulting or surviving corporation (the "Surviving
Corporation")). At the Effective Time of the Transaction, the outstanding
shares of common stock of Wes-Tenn, $1.00 par value per share ("Wes-Tenn Common
Stock"), shall be converted into shares of common stock of BancorpSouth, $2.50
par value per share ("BancorpSouth Common Stock"), as described in Section 1.2
hereof. The Governing Documents of BancorpSouth as in effect immediately prior
to the Effective Time of the Transaction shall be the Governing Documents of
the Surviving Corporation with no amendment being made as a result of the
Parent Merger. From and after the Effective Time of the Transaction, the
separate existence of Wes-Tenn shall cease; Wes-Tenn shall be merged into
BancorpSouth; and BancorpSouth, without further action, shall possess all the
rights, privileges, powers, and franchises of a public as well as of a private
nature, and be subject to all the restrictions, disabilities, and duties of
Wes-Tenn; and all and singular the rights, privileges, powers, and franchises
of Wes-Tenn and all property, real, personal, and mixed, and all debts due to
Wes-Tenn on whatever account, for stock subscriptions as well as for all
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other choses in action belonging to Wes-Tenn, shall be vested in BancorpSouth
as effectually as they were vested in Wes-Tenn; and all property, rights,
privileges, powers, and franchises and all and every other interest shall be
thereafter as effectually the property of BancorpSouth as they were of
Wes-Tenn; and the title to any real estate vested by deed or otherwise in
BancorpSouth or Wes-Tenn shall not revert or be in any way impaired, but all
rights of creditors and all liens upon any property of Wes-Tenn shall be
preserved unimpaired; and all debts, liabilities, and duties of Wes-Tenn shall
attach to BancorpSouth and may be enforced against it to the same extent as if
said debts, liabilities, and duties had been incurred or contracted by
BancorpSouth. From and after the Effective Time of the Transaction, each of
TCB and the BancorpSouth Subsidiaries shall be a subsidiary of the Surviving
Corporation. At any time, or from time to time, after the Effective Time of
the Transaction, the officers of BancorpSouth may, in the name of Wes-Tenn,
execute all such deeds, assignments, and other instruments and take or cause to
be taken, in the name of Wes-Tenn, all such further or other action as
BancorpSouth may deem necessary or desirable in order to vest, perfect, or
confirm BancorpSouth's title to and possession of all of Wes-Tenn's property,
rights, privileges, powers, and franchises and otherwise to carry out the
purposes of this Agreement.
(b) Subject to the adoption and approval by the shareholders of
Wes-Tenn (and of BancorpSouth if necessary) of this Agreement, and subject to
the other terms and conditions contained herein, at the Effective Time of the
Transaction TCB shall be merged with and into Volunteer (with Volunteer being
the resulting or surviving bank (the "Surviving Bank")). At the Effective Time
of the Transaction, the outstanding shares of common stock of TCB, $50.00 par
value per share, shall be converted into shares of common stock of Volunteer,
$10.00 par value per share. The Governing Documents of Volunteer as in effect
immediately prior to the Effective Time of the Transaction shall be the
Governing Documents of the Surviving Bank with no amendment being made as a
result of the Bank Merger other than any amendment necessary to accommodate
representation on the board of directors of Volunteer as provided for by
Section 7.1 of this Agreement. From and after the Effective Time of the
Transaction, the separate existence of TCB shall cease; TCB shall be merged
into Volunteer; and Volunteer, without further action, shall possess all the
rights, privileges, powers, and franchises of a public as well as of a private
nature (including the right to operate all branches of TCB), and be subject to
all the restrictions, disabilities, and duties of TCB; and all and singular the
rights, privileges, powers, and franchises of TCB and all property, real,
personal, and mixed, and all debts due to TCB on whatever account, for stock
subscriptions as well as for all other choses in action belonging to TCB, shall
be vested in Volunteer as effectually as they were vested in TCB; and all
property, rights, privileges, powers, and franchises and all and
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every other interest shall be thereafter as effectually the property of
Volunteer as they were of TCB; and the title to any real estate vested by deed
or otherwise in TCB or any TCB Subsidiary shall not revert or be in any way
impaired, but all rights of creditors and all liens upon any property of TCB
shall be preserved unimpaired; and all debts, liabilities, and duties of TCB
shall attach to Volunteer and may be enforced against it to the same extent as
if said debts, liabilities, and duties had been incurred or contracted by
Volunteer. From and after the Effective Time of the Transaction, each of the
TCB Subsidiaries shall be a subsidiary of the Surviving Bank. At any time, or
from time to time, after the Effective Time of the Transaction, the officers of
Volunteer may, in the name of TCB or any TCB Subsidiary, execute all such
deeds, assignments, and other instruments and take or cause to be taken, in the
name of TCB or such TCB Subsidiary, all such further or other action as
Volunteer may deem necessary or desirable in order to vest, perfect, or confirm
Volunteer's title to and possession of all of TCB or such TCB Subsidiary's
property, rights, privileges, powers, and franchises and otherwise to carry out
the purposes of this Agreement.
Section 1.2 Conversion of Wes-Tenn Common Stock. At the Effective
Time of the Transaction, by virtue of the Parent Merger and without the
necessity of any action on the part of BancorpSouth, Wes-Tenn, or the
shareholders of Wes- Tenn, all of the outstanding shares of Wes-Tenn Common
Stock shall be converted into shares of BancorpSouth Common Stock as follows:
(a) Except as provided in paragraphs (c), (d) and (e) of this Section
1.2 and in Section 7.2, as of the Effective Time of the Transaction, each
holder of record (other than a dissenting shareholder who perfects statutory
dissenters' rights as set forth in paragraph (d) of this Section 1.2) of shares
of Wes-Tenn Common Stock (each such holder as of such time being hereinafter
sometimes referred to as an "Eligible Wes-Tenn Shareholder") shall be entitled
to receive, in exchange for each share of Wes-Tenn Common Stock, 0.6296 of a
share of BancorpSouth Common Stock (the "Exchange Ratio"), and each such share
shall be converted into BancorpSouth Common Stock in accordance with the
Exchange Ratio as hereinafter set forth, plus the right to receive cash in lieu
of fractional shares as provided in Section 1.4 hereof. Notwithstanding the
preceding sentence, in the event that, between the date of this Agreement and
the Closing, BancorpSouth subdivides its outstanding shares of BancorpSouth
Common Stock into a greater number of shares by means of a stock split or stock
dividend or effects a reclassification of its common stock (such stock split,
stock dividend, or reclassification being hereinafter referred to as a "Stock
Event"), then the Exchange Ratio shall be adjusted so that, at the Effective
Time of the Transaction, each Eligible Wes-Tenn Shareholder (other than a
dissenting shareholder who perfects statutory dissenters' rights as set forth
in paragraph (d) of this
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Section 1.2) shall be entitled to receive, in exchange for each share of
Wes-Tenn Common Stock, a number of shares of BancorpSouth Common Stock (in the
manner hereinafter set forth) adjusted to reflect what such Eligible Wes-Tenn
Shareholder would have received if the shares of BancorpSouth Common Stock
issuable hereunder had been issued immediately prior to the Stock Event.
(b) For the purposes of the exchange contemplated in the preceding
paragraph:
(i) the Wes-Tenn Book Value per share was determined to be $11.88
and was multiplied by 2.05 in calculating the Exchange Ratio. This value
was based upon unaudited financial statements prepared as of May 31, 1995
in accordance with generally accepted accounting principles, applied on a
consistent basis with prior periods ("GAAP"), subject to certain
understandings or adjustments agreed upon by the parties.
(ii) BancorpSouth Common Stock was valued at $38.675 per share
(the "BancorpSouth Price"). This value was computed by taking the
average of the high "bid" and low "ask" price for BancorpSouth Common
Stock (as reported by NASDAQ) for each of the twenty (20) trading days to
and including June 13, 1995, and then computing the average of such
averages.
(c) On the day prior to the proposed Closing Date, the high "bid" and
low "ask" price for BancorpSouth Common Stock (as reported by NASDAQ) for each
of the twenty (20) trading days immediately preceding the proposed Closing Date
shall be averaged, and the average of such averages shall constitute the
"Recalculated Price." The Exchange Ratio may be adjusted as follows:
(i) in the event that the Recalculated Price is less than
$32.8738, Wes-Tenn may, at its option and without penalty, terminate this
Agreement unless BancorpSouth agrees to recalculate the Exchange Ratio
using the following value for the BancorpSouth Price:
$38.675 - ($32.8738 - Recalculated Price) = BancorpSouth Price
(ii) in the event that the Recalculated Price is more than
$44.4763, BancorpSouth may, at its option and without penalty, terminate
this Agreement unless Wes-Tenn agrees to recalculate the Exchange Ratio
using the following value for BancorpSouth Common Stock:
$38.675 + (Recalculated Price - $44.4763) = BancorpSouth Price
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Except as set forth in clauses (i) and (ii) above, no adjustment shall be made
in the Exchange Ratio for any change in the market price of BancorpSouth Common
Stock between the date hereof and the Closing Date.
(d) Any shareholder of Wes-Tenn who, before the taking of the vote of
Wes-Tenn shareholders to approve the Transaction and adopt this Agreement as
described in Section 1.5 hereof, shall have delivered a written notice to
Wes-Tenn objecting to the Transaction, shall have refrained from voting his
shares in approval of the Transaction, and shall have demanded payment for the
fair value of such shares, all in accordance with the Tennessee Business
Corporation Act ("BCA"), shall not be entitled to receive any shares of
BancorpSouth Common Stock pursuant to paragraph (a) of this Section 1.2, to
vote such shares for any purpose, to receive any dividends or other
distributions payable to holders thereof, or to exercise any other right with
respect to such shares except as provided by the BCA.
(e) Any shares of Wes-Tenn Common Stock which, immediately prior to the
Effective Time of the Transaction, are owned or held directly or indirectly by
BancorpSouth (other than in a fiduciary capacity or as a result of debts
previously contracted), and any shares of Wes-Tenn Common Stock which,
immediately prior to the Effective Time of the Transaction, are held in
Wes-Tenn's treasury shall, at the Effective Time of the Transaction, be
canceled and cease to exist. Any certificates for such shares shall, as
promptly as practicable following the Effective Time of the Transaction, be
canceled, and no BancorpSouth Common Stock shall be issued or delivered in
respect of such shares.
Section 1.3 Exchange of Certificates. (a) After the Effective Time
of the Transaction, holders of certificates theretofore evidencing outstanding
shares of Wes-Tenn Common Stock, upon surrender of such certificates to such
agent or agents as shall be appointed by BancorpSouth (the "Exchange Agent"),
shall be entitled to receive certificates representing the number of whole
shares of BancorpSouth Common Stock into which shares of Wes-Tenn Common Stock
theretofore represented by such surrendered certificates shall have been
converted, as provided in Section 1.2(a) hereof, and cash payments in lieu of
fractional shares, if any, as provided in Section 1.4 hereof. As soon as
practicable after the Effective Time of the Transaction, the Exchange Agent
will send to each Wes-Tenn shareholder of record as of the Effective Time of
the Transaction whose stock shall have been converted into BancorpSouth Common
Stock a notice and transmittal form advising such shareholder of the
effectiveness of the Parent Merger and the procedure for surrender to the
Exchange Agent (which may appoint forwarding agents) of outstanding
certificates formerly evidencing Wes-Tenn Common Stock in exchange for new
certificates for
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BancorpSouth Common Stock. The certificate or certificates so surrendered
shall be duly endorsed if the Exchange Agent so requires. Upon surrender, each
certificate evidencing Wes-Tenn Common Stock shall be canceled. For the
purpose of assisting Wes-Tenn shareholders in the exchange of certificates,
BancorpSouth will endeavor to have representatives of the Exchange Agent
available at such TCB locations as may be mutually acceptable to BancorpSouth
and Wes-Tenn.
(b) Until surrendered as provided in Section 1.3(a) hereof, each
outstanding certificate which prior to the Effective Time of the Transaction
represented Wes-Tenn Common Stock (other than shares referred to in Sections
1.2(d) and (e) hereof) will be deemed for all corporate purposes to evidence
ownership of the number of whole shares of BancorpSouth Common Stock into which
the shares of Wes-Tenn Common Stock formerly represented thereby were converted
in the Parent Merger. Until such outstanding certificates formerly
representing Wes-Tenn Common Stock are so surrendered, no dividend payable to
holders of record of BancorpSouth Common Stock shall be paid to any holder of
such outstanding certificates. However, upon surrender of such outstanding
certificates by such holder, there shall be paid to such holder, without
interest, the amount of: (i) any cash dividends, which had a record date
occurring on or subsequent to the Effective Time of the Transaction,
theretofore paid with respect to such whole shares of BancorpSouth Common
Stock; and (ii) any cash payable to such holder in lieu of fractional shares
pursuant to Section 1.4 hereof. At the close of business on the last business
day immediately preceding the Closing (as defined in Section 1.7 hereof), the
stock transfer books of Wes-Tenn shall be closed, and no transfer of shares of
Wes-Tenn Common Stock shall thereafter be made.
(c) If any new certificate for BancorpSouth Common Stock or any check
representing cash is to be issued in a name other than that in which a
certificate surrendered in exchange therefor is registered, it shall be a
condition of the issuance thereof that the certificate surrendered in exchange
shall be properly endorsed and otherwise in proper form for transfer. The
person requesting any such transfer shall affix any requisite stock transfer
tax stamps to the certificate surrendered, or pay to the Exchange Agent any
transfer or other taxes required by reason of the issuance of a new certificate
for shares of BancorpSouth Common Stock in any name other than that of the
registered holder of the certificate surrendered, or otherwise establish to the
satisfaction of the Exchange Agent that such tax has been paid or is not
payable.
Section 1.4 No Fractional Shares. Notwithstanding any term or
provision hereof, no fractional shares of BancorpSouth Common Stock, and no
certificate or scrip therefor or other evidence of ownership thereof, will be
issued in exchange for any shares of
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Wes-Tenn Common Stock; no dividend or distribution with respect to BancorpSouth
Common Stock shall be payable on or with respect to any fractional share
interest; and no such fractional share interest shall entitle the owner thereof
to vote or to any other rights of a shareholder of BancorpSouth. In lieu of
such fractional share interest, any holder of Wes-Tenn Common Stock who would
otherwise be entitled to receive, as a result of the Parent Merger, a
fractional share of BancorpSouth Common Stock will, upon surrender of his
certificate or certificates representing Wes-Tenn Common Stock outstanding
immediately prior to the Effective Time of the Transaction, be paid the cash
value of such fractional share interest, which shall be equal to the product of
the fraction of one share of BancorpSouth Common Stock multiplied by the
BancorpSouth Price that was used to compute the Exchange Ratio. For the
purposes of determining any such fractional share interests, all shares of
Wes-Tenn Common Stock owned by a Wes-Tenn shareholder shall be combined so as
to calculate the maximum number of whole shares of BancorpSouth Common Stock
issuable to such Wes-Tenn shareholder.
Section 1.5 Shareholders' Meeting. Wes-Tenn shall call a meeting
of its shareholders in accordance with the applicable provisions of Tennessee
law for the purpose of considering and voting on this Agreement and the
transactions contemplated hereby (the "Wes-Tenn Shareholders' Meeting"). The
Wes-Tenn Shareholders' Meeting shall be held as soon as practicable after the
receipt of all required regulatory approvals. The board of directors of
Wes-Tenn, consistent with its fiduciary duties and to the extent permitted by
law, shall use its best efforts to solicit the requisite vote for approval of
the Transaction by the shareholders of Wes-Tenn and shall recommend to such
shareholders that they approve the Transaction and adopt and approve this
Agreement. The affirmative vote of the holders of a majority of the
outstanding shares of Wes-Tenn Common Stock eligible to vote at the Wes-Tenn
Shareholders' Meeting shall be required for such approval.
(b) If deemed necessary or desirable by BancorpSouth, BancorpSouth
shall call a meeting of its shareholders in accordance with the applicable
provisions of Mississippi law for the purpose of considering and voting on this
Agreement and the transactions contemplated hereby (the "BancorpSouth
Shareholders' Meeting"). The BancorpSouth Shareholders' Meeting shall be held
as soon as practicable after the receipt of all required regulatory approvals.
The board of directors of BancorpSouth, consistent with its fiduciary duties
and to the extent permitted by law, shall use its best efforts to solicit the
requisite vote for approval of the Transaction by the shareholders of
Bancorpsouth and shall recommend to such shareholders that they approve the
Transaction and adopt and approve this Agreement.
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Section 1.6 Cooperation; Regulatory Approvals. Subject to the
terms and conditions of this Agreement, each of BancorpSouth and Wes-Tenn
agrees to use all reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary, proper, or
advisable under applicable laws and regulations (including, without limitation,
using reasonable effort to lift or rescind any injunction or restraining order
or other order adversely affecting the ability of BancorpSouth and Wes-Tenn, or
either of them) to consummate and make effective, as soon as practicable after
the date hereof, the Transaction. Each of BancorpSouth and Wes-Tenn shall use,
and shall cause each of Volunteer, TCB and the TCB Subsidiaries as the case may
be, to use, its best efforts to obtain consents of all third parties and
governmental bodies (including, without limitation, the Securities and Exchange
Commission (the "SEC"), the Board of Governors of the Federal Reserve System
(the "FRB"), the regulatory authorities of Mississippi and Tennessee, and the
shareholders of Wes-Tenn) necessary or desirable for the consummation of the
transactions contemplated hereby.
Section 1.7 Closing. Not later than 30 days following satisfaction
(or waiver, if permitted hereunder) of the closing conditions set forth in
Article Five hereof, and subject to the other terms and conditions of this
Agreement, the closing for the consummation of the Transaction and other
transactions contemplated hereby shall take place at the offices of Waller
Lansden Dortch & Davis in Nashville, Tennessee at 11:00 A.M., local time, or at
such other time or place as the parties hereto may mutually agree upon in
writing (the "Closing"). At the Closing, (i) Wes-Tenn shall be furnished with
a certificate signed by the Chairman of the Board of BancorpSouth as to the
fulfillment of the conditions contained in Sections 5.1 and 5.2, (ii)
BancorpSouth shall be furnished with a certificate signed by the President of
Wes-Tenn as to the fulfillment of the conditions contained in Sections 5.1 and
5.3, (iii) the various deliveries of documents provided for in Sections 5.1,
5.2 and 5.3 shall occur, and (iv) BancorpSouth and Wes-Tenn shall execute all
instruments and documents in such form as required by and in accordance with
the relevant provisions of applicable state and federal law in order to
consummate the Transaction and other transactions contemplated hereby. The
date on which the Closing is completed is referred to herein as the "Closing
Date."
Section 1.8 The Effective Time of the Transaction. (a) Immediately
following the Closing, in order to consummate the Transaction, the parties
shall cause the filing with the Secretary of State of each of Mississippi and
Tennessee of all necessary instruments and documents in such form as required
by and in accordance with the relevant provisions of applicable Mississippi and
Tennessee law. The "Effective Time of the Transaction" shall
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be 5:00 P.M. on the Closing Date or such other time as of which the Transaction
shall have become effective in accordance with the applicable provisions of the
laws of Mississippi and Tennessee.
(b) Unless otherwise mutually agreed upon in writing by the chief
executive officers of BancorpSouth and Wes-Tenn, the parties shall cause the
Effective Time of the Transaction to occur on the first business day following
the last to occur of (i) the date that is fifteen (15) days after the date of
the order of the FRB approving the Parent Merger pursuant to the Act, (ii) the
effective date (including expiration of any applicable waiting period) of the
order of any other federal or state regulatory agency approving the
Transaction, if such approval is required, or the expiration of any required
waiting period after the filing of any required notice to any federal or state
regulatory agency required for consummation of the Transaction, (iii) the date
on which the shareholders of Wes-Tenn approve this Agreement, or (iv) such
later date as may be agreed upon by the parties.
Section 1.9 Certain Undertakings.
(a) Undertakings of Wes-Tenn. Wes-Tenn undertakes and agrees on behalf
of itself and for TCB and the TCB Subsidiaries where appropriate:
(i) To join with BancorpSouth in executing and delivering this
Agreement.
(ii) To cooperate with BancorpSouth in the preparation by
BancorpSouth of a proxy statement (the "Proxy Statement"), a notice of
meeting, and a form of proxy to be used in connection with the Wes-Tenn
Shareholders' Meeting, and to cooperate with BancorpSouth in finalizing
and distributing such proxy material in furtherance of the purposes set
forth in Section 1.5 hereof.
(iii) To use its best efforts and to take any and all necessary or
appropriate actions (including the payment of all required filing fees,
other than filing fees required to be paid by BancorpSouth), and to cause
its officers, directors, employees, agents, and representatives to use
their best efforts and to take all steps in good faith within their
power, to cause to be fulfilled those of the conditions precedent to its
or to BancorpSouth's (or their respective subsidiaries') obligations to
consummate the Transaction which are dependent upon its or their actions,
including but not limited to requesting the delivery of appropriate
opinions and letters from its counsel and accountants.
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(iv) To join with BancorpSouth, upon the fulfillment of the
conditions precedent to Wes-Tenn's obligations to consummate the
Transaction, in executing and delivering such documents and making such
filings as shall cause the consummation of the Transaction.
(v) To keep BancorpSouth closely advised of all material
developments relevant to the consummation of the Transaction, to give
prompt written notice to BancorpSouth upon becoming aware of any
impending or threatened occurrence of any event that would cause or
constitute a breach of any of the representations and warranties of
Wes-Tenn contained in this Agreement, and to use its best efforts to
prevent or promptly to remedy the same.
(vi) To maintain, and to cause its officers, directors, employees,
agents, and representatives (including TCB and the TCB Subsidiaries and
their officers, directors, employees, agents, and representatives) to
maintain, in accordance with the provisions of Section 4.3(b) hereof, the
confidentiality of all confidential information, abstracts and
derivatives thereof, furnished to it or them by BancorpSouth or any
BancorpSouth Subsidiary concerning its business, assets, and financial
condition; and not to use, and to cause its officers, directors,
employees, agents, and representatives (including TCB and the TCB
Subsidiaries and their officers, directors, employees, agents, and
representatives) not to use, such information except in furtherance of
the transactions contemplated by this Agreement; and to return, and to
cause its officers, directors, employees, agents, and representatives
(including TCB and the TCB Subsidiaries and their officers, directors,
employees, agents, and representatives) to return, if this Agreement is
terminated, all documents and copies of confidential information,
abstracts and derivatives thereof, received from BancorpSouth or any
BancorpSouth Subsidiary.
(vii) To furnish BancorpSouth with all information concerning
Wes-Tenn, TCB, and the TCB Subsidiaries reasonably required for (A)
inclusion in the S-4 Registration Statement (or an amendment to any
existing S-4 Registration Statement) to be filed with the SEC for the
purpose of registering a number of shares of BancorpSouth Common Stock to
be exchanged for shares of Wes-Tenn Common Stock in the Transaction (the
"S-4 Registration Statement") and (B) any application made by
BancorpSouth to any governmental or regulatory body in
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connection with the transactions contemplated by this Agreement.
(b) Undertakings of BancorpSouth. BancorpSouth undertakes and agrees
for itself and for Volunteer where appropriate:
(i) To join with Wes-Tenn in executing and delivering this
Agreement.
(ii) To prepare or cause to be prepared, as soon as practicable
after the date of this Agreement, a draft of the S-4 Registration
Statement and the Proxy Statement, to share such draft with Wes-Tenn, and
to cooperate with Wes-Tenn in finalizing such S-4 Registration Statement
and the Proxy Statement (and any amendments thereto) and to use its best
efforts to cause the S-4 Registration Statement to become effective as
soon as practicable.
(iii) To use its best efforts and to take any and all necessary or
appropriate actions (including the payment of all required filing fees
and printing costs), and to cause its officers, directors, employees,
agents, and representatives to use their best efforts and to take all
steps in good faith within their power, to cause to be fulfilled those of
the conditions precedent to its or Wes-Tenn's (or their respective
subsidiaries') obligations to consummate the Transaction which are
dependent upon its or their actions, including but not limited to
requesting the delivery of appropriate opinions and letters from its
counsel.
(iv) To join with Wes-Tenn, upon the fulfillment of the conditions
precedent to BancorpSouth's obligations to consummate the Transaction, in
executing and delivering such documents and making such filings as shall
cause the consummation of the Transaction.
(v) To keep Wes-Tenn closely advised of all material developments
relevant to the consummation of the Transaction, to give prompt written
notice to Wes-Tenn upon becoming aware of any impending or threatened
occurrence of any event that would cause or constitute a breach of any of
the representations and warranties of BancorpSouth contained in this
Agreement, and to use its best efforts to prevent or promptly to remedy
the same.
(vi) To maintain, and to cause its officers, directors, employees,
agents, and representatives (including the BancorpSouth Subsidiaries and
their officers, directors, employees, agents, and
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representatives) to maintain, in accordance with the provisions of
Section 4.3(b) hereof; the confidentiality of all confidential
information, abstracts and derivatives thereof, furnished to it or them
by Wes-Tenn, TCB, or any TCB Subsidiary concerning its business, assets,
and financial condition; and not to use, and to cause its officers,
directors, employees, agents, and representatives (including the
BancorpSouth Subsidiaries and their officers, directors, employees,
agents, and representatives) not to use, such information except in
furtherance of the transactions contemplated by this Agreement; and to
return, and to cause its officers, directors, employees, agents, and
representatives (including the BancorpSouth Subsidiaries and their
officers, directors, employees, agents, and representatives) to return,
if this Agreement is terminated, all documents and copies of confidential
information, abstracts and derivatives thereof, received from Wes-Tenn,
TCB and the TCB Subsidiaries.
(vii) To provide employees of TCB who are hired as employees of
Volunteer after the Transaction with the same employee benefits as other
new hires of Volunteer, to give effect to all prior years of service with
TCB for purposes of determining employee benefit eligibility waiting
periods (but not benefit vesting or accrual), and to waive any uninsured
waiting period otherwise applicable to health insurance provided to such
employees; provided, however, that such employees of TCB shall be given
credit for past years of service with TCB for vesting purposes (but not
benefit accrual) under the BancorpSouth 401(k) plan if such credit can be
given under applicable law without amending or violating the terms of the
BancorpSouth 401(k) plan; and provided, further, that Volunteer shall
have no obligation to hire any employees of TCB in any capacity.
ARTICLE TWO
REPRESENTATIONS AND WARRANTIES OF WES-TENN
Wes-Tenn represents and warrants to BancorpSouth, on its own behalf and
on behalf of TCB and the TCB Subsidiaries, as follows:
Section 2.1 Organization and Standing. Wes-Tenn and each of the
TCB Subsidiaries are corporations duly incorporated, validly existing, and in
good standing under the laws of the State of Tennessee. TCB is a state banking
corporation duly incorporated, validly existing, and in good standing under the
laws of the State of Tennessee. Each of Wes-Tenn, TCB, and the TCB
Subsidiaries has
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all necessary corporate power and authority to own or lease its properties and
assets and to conduct its business as it is now being conducted, and is duly
qualified to do business and is in good standing in every jurisdiction in which
the nature of the business conducted by it or the character or location of the
properties owned or leased by it makes such qualification necessary, except to
the extent that any failure to so qualify would not, in the aggregate, have a
material adverse effect on the business, financial condition, or results of
operations of Wes-Tenn, TCB, and the TCB Subsidiaries, taken as a whole. Set
forth in Schedule 2.1(a) hereto is a list of the jurisdictions in which any of
Wes- Tenn, TCB and the TCB Subsidiaries is qualified to do business as a
foreign corporation. The deposit accounts of TCB are insured by the Federal
Deposit Insurance Corporation (the "FDIC") to the full extent permitted under
applicable law and the rules and regulations of the FDIC. The Governing
Documents of each of Wes-Tenn, TCB, and the TCB Subsidiaries (true, correct,
and complete copies of which have been previously delivered to BancorpSouth and
are attached hereto as Schedule 2.1(b)) are in full force and effect as of the
date of this Agreement. Wes-Tenn and TCB have taken such action and executed
and filed such documents and notices as may be necessary to enable TCB to
exercise the powers conferred on Tennessee banking corporations.
Section 2.2 Authority. The execution and delivery of this
Agreement by Wes-Tenn, and consummation of the transactions contemplated
hereby, have been approved by Wes-Tenn's board of directors and by all
necessary action on the part of Wes-Tenn and are duly and validly authorized,
subject only to adoption and approval of this Agreement by the shareholders of
Wes-Tenn. When this Agreement is approved by such shareholders, it shall
constitute a valid and binding obligation of Wes-Tenn, enforceable in
accordance with its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or other similar laws affecting
creditors' rights generally and except that the availability of equitable
remedies (including, without limitation, specific performance) is within the
discretion of the appropriate court. No authorization, consent, or approval by
any public body or authority or any other party is necessary to the performance
by Wes-Tenn of its obligations called for herein, except that the Regulatory
Approvals are necessary to consummation of the Transaction. The board of
directors of Wes-Tenn has authorized its officers to take all action necessary
to consummate the transactions contemplated by this Agreement and has directed
that any action requiring shareholder approval be submitted to the shareholders
of Wes-Tenn for approval.
Section 2.3 Absence of Conflicts and Consents. The execution,
delivery, and performance of this Agreement by Wes-Tenn and the consummation of
the transactions contemplated hereby will not constitute a breach, violation,
or default, or create a lien,
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charge, or encumbrance of any nature whatsoever, require any consent, approval,
or waiver, or give any rights of acceleration to any person, under (i) the
Governing Documents of Wes-Tenn, TCB, or any TCB Subsidiary, (ii) any law,
rule, regulation, judgment, decree, order, governmental permit, license,
agreement, indenture, or instrument of Wes-Tenn, TCB, or any TCB Subsidiary or
by which their respective properties may be bound, or (iii) any material
contract, agreement, or understanding of Wes-Tenn, TCB, or any TCB Subsidiary.
Section 2.4 Capitalization and Ownership. (a) The authorized
capital stock of Wes-Tenn consists solely of 10,000,000 shares of Wes-Tenn
Common Stock, par value $1.00 per share, of which, as of the date of this
Agreement, 2,519,212 shares are issued and outstanding, fully paid and
nonassessable, and have not been issued in violation of the preemptive rights
of any person. No shares are held by Wes-Tenn as treasury stock. As of the
Effective Time of the Transaction, there will be no more than 2,519,212 shares
of common stock of Wes-Tenn issued or outstanding. The authorized capital
stock of TCB consists solely of 48,000 shares of common stock, par value $50.00
per share, of which, as of the date of this Agreement, 48,000 shares are issued
and outstanding, fully paid and nonassessable , wholly-owned by Wes-Tenn, and
have not been issued in violation of the preemptive rights of any person. The
authorized capital stock of TCF consists solely of 100 shares of common stock,
par value $1.00 per share, of which, as of the date of this Agreement, 4 shares
are issued and outstanding, fully paid and nonassessable, wholly-owned by TCB,
and have not been issued in violation of the preemptive rights of any person.
The authorized capital stock of Wes-Tenn Mortgage consists solely of 1000
shares of common stock, par value $1.00 per share, of which, as of the date of
this Agreement, 1000 shares are issued and outstanding, fully paid and
nonassessable, wholly-owned by TCB, and have not been issued in violation of
the preemptive rights of any person. The authorized capital stock of West
Tennessee Life consists solely of 2,000,000 shares of common stock, par value
$1.00 per share, of which, as of the date of this Agreement, 100,000 shares are
issued and outstanding, fully paid and nonassessable, wholly-owned by TCB, and
have not been issued in violation of the preemptive rights of any person. All
of the outstanding shares of common stock of TCB are owned beneficially and of
record by Wes-Tenn. Each of TCB Subsidiaries, and all of the outstanding
shares of common stock of TCB Subsidiaries, are owned beneficially and of
record by TCB, each free and clear of any security interest, lien, claim,
charge, restriction or encumbrance. Other than as set forth in this paragraph,
neither Wes-Tenn, TCB, nor any TCB Subsidiary owns directly or indirectly,
beneficially or of record, any outstanding stock of any other corporation and
does not otherwise "control" any "company" or "bank" (as those terms are
defined in the Act). There are no owners of record of five percent (5%) or
more of Wes-Tenn Common Stock.
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(b) As of the date of this Agreement, there are not, and as of the
Closing Date and thereafter there will not be, outstanding securities
convertible into, or exercisable or exchangeable for, Wes-Tenn Common Stock or
the common stock of TCB or any of the TCB Subsidiaries, or any outstanding
options, rights (preemptive or otherwise), or warrants to purchase or to
subscribe for any shares of Wes-Tenn Common Stock or the common stock of TCB or
the TCB Subsidiaries or any other securities of Wes-Tenn, TCB, or the TCB
Subsidiaries. Except as previously disclosed to BancorpSouth in writing and
except as set forth in Section 4.12, as of the date of this Agreement there
are, and as of the Closing Date and thereafter there will be, no outstanding
agreements, arrangements, commitments, or understandings of any kind to which
Wes-Tenn, TCB, or a TCB Subsidiary or, to the knowledge of management of
Wes-Tenn, any "associate" or "affiliate" of Wes-Tenn, TCB, or a TCB Subsidiary
(as those terms are defined in the rules and regulations promulgated under the
Securities Act of 1933, as amended (the "Securities Act")), is a party
affecting or relating to the voting, issuance, purchase, redemption,
repurchase, or transfer of Wes-Tenn's Common Stock, or any other securities of
Wes-Tenn, or any shares of the capital stock of TCB or any of the TCB
Subsidiaries.
Section 2.5 Reports and Financial Statements. (a) Wes-Tenn has
furnished BancorpSouth with true and complete copies of (i) Wes-Tenn's Annual
Reports on Form 10-K (including exhibits) filed with the SEC for each of the
fiscal years ended December 31, 1992, 1993 and 1994, as the same may have been
amended, and (ii) Wes-Tenn's Quarterly Reports on Form 10-Q (including
exhibits) filed with the SEC for the fiscal quarter ended March 31, 1995,
(collectively the "Wes-Tenn Financial Statements").
(b) All of the documents referred to in paragraph (a) of this Section
2.5, as finally amended, and all such documents hereafter filed by Wes-Tenn
with the appropriate regulatory authorities prior to the Effective Time of the
Transaction, as finally amended, complied and will comply in all material
respects with applicable requirements of law and, as of their respective dates
or the dates as amended, did not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were or will be made, not misleading. Except to the extent stated
therein, the Wes-Tenn Financial Statements and other schedules included in the
documents referred to in paragraph (a) of this Section 2.5 or to be included in
such documents hereafter filed by Wes-Tenn with the appropriate regulatory
authorities prior to the Effective Time of the Transaction, and any other
financial statements provided by Wes-Tenn to BancorpSouth prior to the
Effective Time of the Transaction, (i) were prepared, and will be prepared, in
accordance with GAAP, applied on a consistent basis
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with prior periods, and (ii) fairly present, and will fairly present, the
consolidated financial position of Wes-Tenn and TCB and the results of
operations and changes in financial positions for Wes-Tenn at the dates and for
the periods referred to therein in conformity with GAAP applied on a consistent
basis throughout the periods involved. All material consolidated liabilities
of Wes-Tenn, actual or contingent, which in accordance with GAAP, consistently
applied, were required to be reflected or reserved against the consolidated
balance sheet or deducted from gross revenues in a consolidated income
statement for the periods covered in the Wes-Tenn Financial Statements are
disclosed therein.
Section 2.6 Tax Matters.
(a) Wes-Tenn, TCB, and the TCB Subsidiaries have (or, in the case of
returns becoming due after the date hereof and at or before the Effective Time
of the Transaction, will have, prior to the Effective Time of the Transaction)
duly filed with the appropriate governmental agencies all federal, state,
local, and foreign tax returns, reports, and declarations of estimated tax with
respect to income, sales, and all other applicable taxes, and all other tax
returns and reports, the filing of which is required by applicable law (without
regard to extensions of time permitted by law, regulation, or otherwise) at or
before the Effective Time of the Transaction (collectively the "Wes-Tenn Tax
Returns") (including, without limitation, income, profit, franchise, sales,
use, real property, personal property, ad valorem, excise, employment, social
security, and wage withholding taxes of every kind, character, or description
imposed by any governmental or quasi-governmental authority). All of the
Wes-Tenn Tax Returns are (or, in the case of returns becoming due after the
date hereof and at or before the Effective Time of the Transaction, will be)
accurate and complete in all material respects.
(b) Wes-Tenn, TCB, and the TCB Subsidiaries have collected and withheld
all taxes which they are or have been required to collect or withhold and have
timely submitted all such collected and withheld amounts to the appropriate
authorities. Wes-Tenn, TCB, and the TCB Subsidiaries are in compliance with
the back-up withholding and information reporting requirements under the Code,
and the rules and regulations of the Internal Revenue Service ("IRS")
thereunder.
(c) All federal, state, local, and foreign taxes due and payable
pursuant to the Wes-Tenn Tax Returns or pursuant to any installments of
estimated taxes, all other taxes, assessments, deficiencies, levies, imposts,
duties, license fees, registration fees, withholding, or other similar
governmental charges, and any penalties, or interest, or additions to tax
imposed thereon or in connection therewith due or claimed to be due by any
taxing authority, have been accrued, adequately reserved against, or paid.
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(d) The reserves for taxes contained in the Wes-Tenn Financial
Statements are adequate to cover the payment of their respective liabilities
for federal, state, local, and foreign taxes (including installments of
estimated taxes) and all other taxes, assessments, deficiencies, levies,
imposts, duties, license fees, registration fees, or other similar governmental
charges (including without limitation income, profits, gross receipts,
franchise, value added, payroll, sales, employment, use, property, withholding,
excise, and occupancy taxes, and any penalties, interest, or additions to tax
imposed thereon or in connection therewith (collectively "Wes-Tenn Taxes")) due
or claimed to be due by any taxing authority in connection with any of the
Wes-Tenn Tax Returns for all periods covered by the Wes-Tenn Financial
Statements. As of May 31, 1995, Wes-Tenn had no net operating loss
carryforward (for federal or state income tax purposes), and none of TCB or the
TCB Subsidiaries had any net operating loss carryforward (for federal or state
income tax purposes). The reserves for taxes in all of the subsequent
financial statements of Wes-Tenn, TCB, and the TCB Subsidiaries relating to
periods prior to the Closing Date will be adequate to cover their respective
liabilities for taxes for all periods up to and including the dates of such
financial statements.
(e) Neither Wes-Tenn, TCB, nor any of the TCB Subsidiaries has received
any notice of deficiency or assessment or proposed deficiency or assessment by
the IRS or any other taxing authority in connection with the Wes-Tenn Tax
Returns. All federal income tax returns of Wes-Tenn, TCB, and the TCB
Subsidiaries have been examined by the IRS or closed without audit (or the
statute of limitations with respect to such returns has expired and no waiver
extending the statute of limitations has been requested or granted) for all
taxable years prior to and including the taxable year ended December 31, 1990.
There is no action, suit, proceeding, audit, examination, investigation, or
claim pending, or to the knowledge of Wes-Tenn, threatened, in respect of any
Wes-Tenn Taxes for which Wes-Tenn, TCB, or any of the TCB Subsidiaries is or
may become liable.
(f) Neither Wes-Tenn, TCB, nor any of the TCB Subsidiaries has waived
any law or regulation fixing, or consented to the extension of, any period of
time with respect to the assessment or collection of any Wes-Tenn Taxes, and no
power of attorney granted by Wes-Tenn, TCB, or any of the TCB Subsidiaries with
respect to any tax matters is currently in force.
(g) Neither Wes-Tenn, TCB, nor any of the TCB Subsidiaries has made an
election under Section 341(f) of the Code.
(h) Wes-Tenn, TCB, and the TCB Subsidiaries have provided, and until
the Effective Time of the Transaction will continue to provide, to BancorpSouth
complete and correct copies of
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their income tax returns and all material correspondence and documents, if any,
in their possession relating directly or indirectly to Wes-Tenn Taxes for each
taxable year of Wes-Tenn, TCB, and the TCB Subsidiaries for all years as to
which the applicable statute of limitations has not run on the date hereof.
For this purpose, "correspondence and documents" include amended tax returns,
claims for refund, notices from taxing authorities of proposed changes or
adjustments to taxes or tax returns, consents to assessment or collection of
taxes, acceptances of proposed adjustments, closing agreements, rulings and
determination letters and requests therefor, and all other written
communications to or from taxing authorities relating to any material tax
liability of Wes-Tenn, TCB, or any of the TCB Subsidiaries.
Section 2.7 Insurance. Schedule 2.7 hereto lists all insurance
policies presently carried by Wes-Tenn, TCB, and each of the TCB Subsidiaries
or currently in force with respect to their business and properties, including
without limitation title insurance policies on real property owned (exclusive
of foreclosed property). The existing insurance carried by Wes-Tenn, TCB, and
the TCB Subsidiaries with respect to their respective business or assets
provides adequate coverage against loss and such insurance is and will continue
to be sufficient for compliance by Wes-Tenn, TCB, and the TCB Subsidiaries with
all material requirements of law and agreements to which Wes-Tenn, TCB, or
either of the TCB Subsidiaries is a party. Except as noted in Schedule 2.7,
neither Wes-Tenn, TCB, nor any of the TCB Subsidiaries is in default in the
payment of any premium, currently has outstanding any claim with respect to
such insurance coverage, or has received notification of, or has knowledge of,
the existence of any grounds for the cancellation or proposed cancellation of
any such policies or bonds.
Section 2.8 Legal Proceedings. Except as set forth in Schedule
2.8, there are no judicial or administrative proceedings of any kind or nature
now pending or, to the knowledge of Wes-Tenn, threatened against Wes-Tenn, TCB,
or any TCB Subsidiary or any officer or director of any of them, before any
court or arbitral tribunal or before or by any governmental department, agency,
or instrumentality in any manner involving Wes-Tenn, TCB, or any of the TCB
Subsidiaries or any of its or their properties or capital stock or the
transactions contemplated by this Agreement. Except as set forth in Schedule
2.8, (i) there is, to the best of Wes-Tenn's knowledge, no basis for any
action, suit, investigation, or proceeding against Wes-Tenn, TCB, or a TCB
Subsidiary before any court or arbitral tribunal or before or by any
governmental department, agency, or instrumentality, which, if determined
adversely to Wes-Tenn, TCB, or any TCB Subsidiary, would have a material
adverse effect on the assets, business, employees, revenue, income, prospects,
condition (financial or otherwise), liabilities, net worth, or results of
operations of Wes-Tenn, TCB,
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or any TCB Subsidiary, (ii) to the knowledge of Wes-Tenn, there are no actions,
suits, or proceedings pending or, threatened by or against any agent or
employee of Wes-Tenn, TCB, or of any TCB Subsidiary in connection with the
business, properties, affairs, or prospects of Wes-Tenn, TCB, or any TCB
Subsidiary. To the knowledge of Wes-Tenn, neither Wes-Tenn, TCB, nor any TCB
Subsidiary is in default with respect to any judgment, order, writ, injunction,
decree, award, rule, or regulation of any court, arbitrator, or governmental
department, agency or instrumentality.
Section 2.9 Compliance with Law. (i) Wes-Tenn, TCB, and the TCB
Subsidiaries are in full compliance with the back-up withholding requirements
of section 3406 of the Code and the Treasury Regulations promulgated
thereunder; (ii) Wes-Tenn, TCB, and the TCB Subsidiaries are in full compliance
with the reporting and other requirements of the Bank Secrecy Act (including
the Currency and Foreign Transaction Reporting Act), and the regulations
promulgated thereunder by the Department of the Treasury except to the extent
that noncompliance would not have a Material Adverse Effect on Wes-Tenn, TCB,
or any TCB Subsidiary; (iii) Wes-Tenn, TCB, and the TCB Subsidiaries are in
compliance with the provisions of all other applicable federal, state, and
local statutes, and all rules, regulations, or orders of, or understandings or
agreements with, governmental agencies having jurisdiction over the assets,
business, properties, operations, employees, revenue, income, prospects,
condition (financial or otherwise), liabilities, net worth, or results of
operations of Wes-Tenn, TCB, and the TCB Subsidiaries except to the extent that
noncompliance would not have a Material Adverse Effect on Wes-Tenn, TCB, or any
TCB Subsidiary; and (iv) neither Wes-Tenn, TCB, nor any of the TCB Subsidiaries
is subject to or has been threatened with any material fine, penalty,
liability, or legal disability to the assets, business, operations, revenue,
income, prospects, condition (financial or otherwise), liabilities, net worth,
or results of operations of Wes-Tenn, TCB, and the TCB Subsidiaries as the
result of the failure of Wes-Tenn, TCB, or a TCB Subsidiary to comply with any
requirement of any governmental body or agency having jurisdiction over them,
the conduct of their business, the use of their assets and properties, or any
premises occupied by them. Wes-Tenn, TCB, and the TCB Subsidiaries have filed,
and until the Effective Time of the Transaction will continue to file, all
reports required to be filed by any of them with any regulatory agency on or
prior to the date such reports were due, and all such reports, as finally
amended, complied and will comply in all material respects with applicable
requirements of law and, as of their respective dates or the dates as amended,
did not and will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Except to the extent stated therein, all financial statements
and schedules included and to be included in such
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reports were and will be prepared in accordance with GAAP or such other
regulatory accounting requirements as were applicable thereto, applied on a
consistent basis with prior periods, and fairly presented and will fairly
present the information purported to be shown therein.
(b)(i) all real property which Wes-Tenn, TCB, or any TCB Subsidiary
owns or is the lessee under a long term lease (collectively, the "Wes-Tenn Real
Property") is in compliance in all material respects with all Applicable
Environmental Laws, (ii) neither Wes-Tenn, TCB, nor any TCB Subsidiary has
received any Environmental Notice with respect to any Wes-Tenn Real Property,
any other real property in which Wes-Tenn, TCB, or any TCB Subsidiary has an
interest, or any Environmental Condition, (iii) neither Wes-Tenn, TCB, nor any
TCB Subsidiary has generated, treated, stored, handled or disposed of Hazardous
Substances, except in strict compliance with all Applicable Environmental Laws,
and has not caused or permitted to exist, and has no knowledge of the existence
of, an Environmental Condition on any Wes-Tenn Real Property, any other real
property in which Wes-Tenn, TCB, or any TCB Subsidiary has an interest, or any
adjacent property.
Section 2.10 Brokers. Except as previously disclosed by Wes-Tenn to
BancorpSouth in writing, no agent, broker, finder, investment banker, person,
or firm acting on behalf or under authority of Wes-Tenn, TCB, or a TCB
Subsidiary is or will be entitled to any broker's or finder's fee or any other
commission or similar fee incurred directly or indirectly by or on behalf of
Wes-Tenn, TCB, or a TCB Subsidiary in connection with the transactions
contemplated by this Agreement.
Section 2.11 Governmental Authorizations. Except for noncompliance
that would not have a Material Adverse Effect on Wes-Tenn, TCB, or any TCB
Subsidiary, each of Wes-Tenn, TCB, and each TCB Subsidiary has all licenses,
permits, approvals, and other authorizations from all federal, state, and local
authorities as are necessary for the conduct of its business and operations,
and all such licenses, franchises, permits, approvals, and other authorizations
are in full force and effect and are not subject to any condition,
qualification, or limitation. Neither Wes-Tenn, TCB, nor any of the TCB
Subsidiaries has received any notification from any agency, department, or
instrumentality of federal, state, or local government or the staff thereof
asserting noncompliance with any of the laws, rules, regulations, or orders
that such governmental authority enforces or threatening to revoke any license,
franchise, permit, or governmental authorization.
Section 2.12 Supervisory Matters. Subject to compliance with
applicable laws and regulations, Wes-Tenn and TCB have provided, and will
continue to provide, to BancorpSouth for inspection originals or complete and
correct copies of (i) any correspondence
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between TCB, Wes-Tenn, or any of their representatives and such authorities
relating to such examination reports during such periods, and (ii) any written
agreements, arrangements, orders, directives, decrees, commitments, or
understandings between or among TCB or Wes-Tenn and any such authorities
entered into as a result of matters raised in such examination reports or
correspondence or previously entered into and remaining, in whole or in part,
in full force and effect. Neither Wes-Tenn, TCB, nor any of the TCB
Subsidiaries has been advised by any regulatory agency that it is contemplating
issuing or requesting (or considering the appropriateness of issuing or
requesting) any written agreement, memorandum of understanding, order, decree,
directive, extraordinary supervisory letter, commitment letter, or similar
document or taking (or considering the appropriateness of taking) any prompt
corrective action (within the meaning of the Federal Deposit Insurance Act of
1950, as amended (the "FDIA")). The last examination of TCB by the staff of
the TDFI prior to the date of this Agreement was performed as of September 10,
1994. If either or both of TCB or Wes-Tenn was notified of any deficiencies as
a result of such examination or any prior examinations, each such deficiency
has been corrected to the satisfaction of the appropriate agency, and if any
changes in operating methods or organization were required by reason of such
examination or such other examinations, such changes have been made. TCB's
reserve for loan losses has been calculated in accordance with GAAP applied on
a consistent basis, as the same are applied to comparable banking institutions,
and in accordance with all applicable rules and regulations. Based upon TCB's
historical loan loss experience and all information available to TCB, the
reserves for loan losses set forth in the TCB Financial Statements are adequate
in all respects to provide for all anticipated losses, net of recoveries
relating to loans previously charged off, on loans outstanding as of the dates
thereof. The loan portfolios of TCB as of such dates in excess of such
reserves are, to the best knowledge and belief of Wes-Tenn and TCB,
collectible. Further, TCB has not been notified in writing that such reserves
violated any minimum requirements or that the independent auditors of TCB
believe such reserves to be inadequate or inconsistent with historical loan
loss experience. Wes-Tenn is not aware of any condition or provision of any
action, report of examination, or other regulatory report or finding that could
reasonably be expected to delay Wes-Tenn from entering into this Agreement or
obtaining regulatory approval of all applications to be filed in connection
with the transactions contemplated by this Agreement, including without
limitation, compliance with the Community Reinvestment Act.
Section 2.13 Rights and Licenses. Set forth in Schedule 2.13 hereto
is a list and description of all trademarks, trademark rights, trade names, and
licenses owned and/or used by Wes-Tenn, TCB, and the TCB Subsidiaries. To the
knowledge of Wes-Tenn, neither Wes-Tenn, TCB, nor any of the TCB Subsidiaries
is subject
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to any material disability to conduct its business as currently conducted or
liability by reason of its failure to own or possess the rights to use any
other trademark, trademark right, trade name, trade name right, or license.
Each of Wes-Tenn, TCB, and each TCB Subsidiary has full right and authority to
own and use all the trademarks, trade names, and licenses listed in Schedule
2.13. Neither Wes-Tenn, TCB, nor any of the TCB Subsidiaries has been held
liable for, and no actions, suits or proceedings are pending or, to the
knowledge of Wes-Tenn, threatened against Wes-Tenn, TCB, or any TCB Subsidiary,
alleging that Wes-Tenn, TCB, or a TCB Subsidiary is liable for infringement of
any trademark, trademark right, trade name, trade name right, or license owned
and/or used by any other person or entity.
Section 2.14 Material Contracts. Except as set forth in Schedule
2.14 neither Wes-Tenn, TCB, nor any of the TCB Subsidiaries is a party to or
bound by any (i) employment or consulting contract which is not terminable by
Wes-Tenn, TCB, or the TCB Subsidiary on 30 or fewer days' notice; (ii) bonus,
stock option, deferred compensation or profit sharing, pension, or retirement
plan or arrangements; (iii) material lease or license with respect to any
property, real or personal, whether as landlord, tenant, licensor, or licensee,
which cannot be terminated without penalty and on notice of not more than 30
days; (iv) contract or commitment for capital expenditures in excess of $50,000
for any one project or $100,000 in the aggregate; (v) material contract or
commitment, whether or not made in the ordinary course of business, for the
purchase of materials or supplies or for the performance of services over a
period of more than 60 days from the date of this Agreement and which cannot be
terminated without penalty and on notice of not more than 30 days; (vi)
agreement or instrument or charter or other restriction which materially and
adversely affects or in the future may materially or adversely affect the
business, operations, prospects, properties, assets, or financial condition of
Wes-Tenn, TCB, or any TCB Subsidiary; (vii) contract or option to purchase or
sell any real or personal property otherwise than in the ordinary course of
business which cannot be terminated without penalty and on notice of not more
than 30 days; or (viii) material contract, other than the foregoing, not made
in the ordinary course of business, which cannot be terminated without penalty
and on notice of not more than 30 days. Each of Wes-Tenn, TCB, and each TCB
Subsidiary has in all material respects performed all obligations required to
be performed by it to date and is not in default under, and no event has
occurred which with the lapse of time or action by a third party could result
in default under, any outstanding indenture, mortgage, contract, lease, or
other agreement to which Wes-Tenn, TCB, or any TCB Subsidiary is a party or by
which Wes-Tenn, TCB, or any TCB Subsidiary is bound, or under the provisions of
its Governing Documents which default would have a Material Adverse Effect on
Wes-Tenn, TCB or any of the TCB Subsidiaries.
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Section 2.15 Properties. Each of Wes-Tenn, TCB, and each TCB
Subsidiary has good, clear, and marketable title to all of its assets and
properties, including all real, personal, and intangible properties, and such
properties and assets are subject to no liens, mortgages, security interests,
encumbrances, or charges of any kind except: (a) as noted in the Financial
Statements described in Section 2.5, (b) statutory liens not yet delinquent,
and (c) minor defects and irregularities in title and encumbrances which do not
materially impair the value or use thereof for the purposes for which they are
held.
Section 2.16 Employee Benefit Plans. All "employee benefit plans,"
as defined in Section 3(3) of the Employee Retirement Income Security Act of
1974 ("ERISA"), that cover any of the employees of Wes-Tenn, TCB or the TCB
Subsidiaries comply in all material respects with all applicable requirements
of ERISA, the Code and other applicable laws; neither Wes-Tenn, TCB nor any of
the TCB Subsidiaries has engaged in a "prohibited transaction" (as defined in
Section 406 of ERISA or Section 4975 of the Code) with respect to any such plan
which is likely to result in any penalties or taxes under Section 502(i) of
ERISA or Section 4975 of the Code; no liability to the Pension Benefit Guaranty
Corporation has been or is expected by it or them to be incurred with respect
to any such plan which is subject to Title IV of ERISA ("Pension Plan"), or
with respect to any "single-employer plan" (as defined in Section 4001(a)(16)
of ERISA) currently or formerly maintained by it, them or any entity which is
considered one employer with it under Section 4001 of ERISA or Section 414 of
the Code; neither Wes-Tenn, TCB, nor any TCB Subsidiary has any Pension Plan;
and neither Wes-Tenn, TCB nor any TCB Subsidiary has any obligations for
retiree health and life benefits under any benefit plan, contract or
arrangement.
Section 2.17 Absence of Certain Changes or Events. Since December
31, 1994, neither Wes-Tenn, TCB, nor any of the TCB Subsidiaries has (i)
incurred any material liability, except in the ordinary course of business,
consistent with its past practice; (ii) suffered any material adverse change in
its business, operations, assets, or condition (financial or other); (iii) made
any material change in its mode of management or operation or method of
accounting; or (iv) failed to operate its business in all material respects in
the ordinary course consistent with its past practice.
Section 2.18 Books of Account; Corporate Records. The books of
account of Wes-Tenn, TCB, and each TCB Subsidiary are maintained in substantial
compliance with all applicable legal and accounting requirements. The minutes
of meetings maintained by Wes-Tenn, TCB, and each TCB Subsidiary contain
complete and accurate records in all material respects of the corporate actions
of its shareholders and Board of Directors and all committees thereof.
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Section 2.19 Proxy Statement and S-4 Registration Statement. When
the S-4 Registration Statement or any post-effective amendment thereto shall
become effective, and when the Proxy Statement to be distributed to Wes-Tenn's
shareholders shall first be mailed to such shareholders (the "Mailing Date"),
and at all times subsequent to such effective date or Mailing Date up to the
Closing Date, the information with respect to Wes-Tenn, TCB, and the TCB
Subsidiaries set forth in the S-4 Registration Statement and in the Proxy
Statement and in all amendments and supplements thereto: (a) will comply in all
material respects with the provisions of the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and the General Rules and
Regulations of the SEC thereunder; and (b) will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements contained therein, in light
of the circumstances under which they were made, not misleading.
Section 2.20 Securities Reports. Wes-Tenn has filed all required
reports, registrations, and statements, together with any amendments, required
under the Securities Act or the Exchange Act, and all materials filed under the
Securities Act or to be incorporated in the S-4 Registration Statement, as of
their respective dates, were in compliance with the rules and regulations of
the SEC.
Section 2.21 Ownership of BancorpSouth Common Stock. No shares of
BancorpSouth Common Stock are beneficially owned (as defined in Rule 13d-3
under the Exchange Act) by Wes-Tenn, TCB, any TCB Subsidiary, or any executive
officer or director of Wes-Tenn or TCB.
Section 2.22 Representations and Warranties True on and as of
Mailing Date and Closing Date. All the representations and warranties of
Wes-Tenn, on behalf of itself, TCB, and the TCB Subsidiaries, contained in this
Agreement will be true on and as of the Mailing Date and the Closing Date,
except to the extent affected (i) by the transactions contemplated hereby, (ii)
by the operations of Wes-Tenn, TCB, and the TCB Subsidiaries as permitted by
the provisions of Section 4.1 hereof, (iii) by transactions to which
BancorpSouth's written consent is obtained, and (iv) by circumstances disclosed
to BancorpSouth occurring subsequent to the date hereof which do not have a
Material Adverse Effect upon Wes-Tenn, TCB, or any TCB Subsidiary.
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ARTICLE THREE
REPRESENTATIONS AND WARRANTIES OF BANCORPSOUTH
BancorpSouth represents and warrants to Wes-Tenn, on its own behalf and
on behalf of Volunteer and the BancorpSouth Subsidiaries, as follows:
Section 3.1 Organization and Standing. BancorpSouth is a
corporation duly incorporated, validly existing, and in good standing under the
laws of the State of Mississippi. Volunteer is a state banking corporation,
duly incorporated, validly existing, and in good standing under the laws of the
State of Tennessee. Each of BancorpSouth and Volunteer has all necessary
corporate power and authority to own or lease its properties and to conduct its
business as it is now being conducted, is duly qualified to do business and is
in good standing in every jurisdiction in which the nature of the business
conducted by it or the character or location of the properties owned or leased
by it makes such qualification necessary, except to the extent that any failure
to so qualify would not, in the aggregate, have a material adverse effect on
the business, financial condition, or results of operations of BancorpSouth and
Volunteer, taken as a whole. The deposit accounts of Volunteer are insured by
the FDIC to the full extent permitted under applicable law and the rules and
regulations of the FDIC. The Governing Documents of BancorpSouth and Volunteer
are in full force and effect as of the date of this Agreement. BancorpSouth
and Volunteer have taken such action and executed and filed such documents and
notices as may be necessary to enable Volunteer to exercise the powers
conferred on Tennessee banking corporations.
Section 3.2 Authority. The execution and delivery of this
Agreement by BancorpSouth, and consummation of the transactions contemplated
hereby, have been approved by BancorpSouth's board of directors and duly and
validly authorized by all necessary action on the part of BancorpSouth other
than approval by the shareholders of BancorpSouth as provided in Section 1.5.
This Agreement constitutes a valid and binding obligation of BancorpSouth,
enforceable in accordance with its terms, except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or other similar laws
affecting creditors' rights generally and except that the availability of
equitable remedies (including, without limitation, specific performance) is
within the discretion of the appropriate court. No authorization, consent, or
approval by any public body or authority or any other party is necessary to the
performance by BancorpSouth of its obligations called for herein, other than
the approvals of the Regulatory Authorities. The board of directors of
BancorpSouth has authorized its officers to take all action necessary to
consummate the transactions contemplated by this Agreement.
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Section 3.3 Absence of Conflicts. The execution, delivery, and
performance of this Agreement by BancorpSouth and the consummation of the
transactions contemplated hereby will not constitute a breach, violation, or
default, or create a lien, charge, or encumbrance of any nature whatsoever, or
give any rights of acceleration to any person, under the Governing Documents of
BancorpSouth or Volunteer or under any law, rule, regulation, judgment, decree,
order, governmental permit, license, agreement, indenture, or instrument of
BancorpSouth or Volunteer or to which BancorpSouth or Volunteer, or the assets
of any of them are subject.
Section 3.4 Capitalization and Ownership.
(a) The authorized capital stock of BancorpSouth consists solely of
500,000,000 shares of BancorpSouth Common Stock, par value $2.50 per share, of
which, as of the date of this Agreement, 8,826,151 shares are issued. All such
shares are, and shares to be issued in connection with the Transaction will be,
validly issued and outstanding, fully paid, and nonassessable, and have not
been issued in violation of the preemptive rights of any person. As of the
date hereof, 54,192 shares are held by BancorpSouth as treasury stock.
(b) The authorized capital stock of Volunteer consists solely of 25,500
shares of common stock, par value $10.00 per share, of which, as of the date of
this Agreement, 25,500 shares are issued and outstanding, fully paid, and
nonassessable, wholly-owned by BancorpSouth, and have not been issued in
violation of the preemptive rights of any person. All of the outstanding
shares of common stock of Volunteer owned beneficially and of record by
BancorpSouth are free and clear of any security interest, lien, claim, charge,
restriction, or encumbrance. Other than as set forth in this paragraph,
neither BancorpSouth nor Volunteer owns directly or indirectly, beneficially or
of record, more than five percent (5%) of the outstanding stock of any other
corporation and does not otherwise "control" any "company" or "bank" (as those
terms are defined in the Act). Schedule 3.4 hereto sets forth a listing of all
owners of record of 5% or more of BancorpSouth Common Stock.
(c) Except as disclosed to Wes-Tenn on Schedule 3.4 hereto, as of the
date of this Agreement, there are not, and as of the Closing Date there will
not be, outstanding securities convertible into, or exercisable or exchangeable
for, BancorpSouth Common Stock or the common stock of any of the BancorpSouth
Subsidiaries, or any outstanding options, rights (preemptive or otherwise), or
warrants to purchase or to subscribe for any shares of BancorpSouth Common
Stock or the common stock of any of the BancorpSouth Subsidiaries, or any other
securities of BancorpSouth or the BancorpSouth Subsidiaries. Except as
disclosed on Schedule
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3.4 hereto, as of the date of this Agreement there are, and as of the Closing
Date there will be, no outstanding agreements, arrangements, commitments, or
understandings of any kind to which BancorpSouth or a BancorpSouth Subsidiary
or, to the knowledge of management of BancorpSouth, any "associate" or
"affiliate" of BancorpSouth or a BancorpSouth Subsidiary (as those terms are
defined in the rules and regulations promulgated under the Securities Act) is a
party affecting or relating to the voting, issuance, purchase, redemption,
repurchase, or transfer of BancorpSouth's Common Stock, or any other securities
of BancorpSouth, or any shares of the capital stock of any of the BancorpSouth
Subsidiaries.
Section 3.5 Reports and Financial Statement.
(a) BancorpSouth has furnished Wes-Tenn with true and complete copies
of (i) BancorpSouth's Annual Reports on Form 10-K (including exhibits) filed
with the SEC for each of the fiscal years ended December 31, 1992, 1993 and
1994, as the same may have been amended, and (ii) BancorpSouth's Quarterly
Reports on Form 10-Q (including exhibits) filed with the SEC for the fiscal
quarter ended March 31, 1995 (collectively, the "BancorpSouth Financial
Statements").
(b) All of the documents, as finally amended, referred to in paragraph
(a) of this Section 3.5 and all such documents hereafter filed by BancorpSouth
with the appropriate regulatory authorities prior to the Effective Time of the
Transaction, as finally amended, complied and will comply in all material
respects with applicable requirements of law and, as of their respective dates
or the dates as amended, did not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were or will be made, not misleading. Except to the extent stated
therein, the BancorpSouth Financial Statements and other schedules included in
the documents referred to in paragraph (a) of this Section 3.5 or to be
included in such documents hereafter filed by BancorpSouth with the appropriate
regulatory authorities prior to the Effective Time of the Transaction, and any
other such financial statements provided by BancorpSouth to Wes-Tenn prior to
the Effective Time of the Transaction, (i) were prepared, and will be prepared,
in accordance with GAAP, applied on a consistent basis with all prior periods,
and (ii) fairly present, and will fairly present, the consolidated financial
position of BancorpSouth and the consolidated results of operations and changes
in financial positions for BancorpSouth at the dates and for the periods
referred to therein in conformity with GAAP applied on a consistent basis
throughout the periods involved. All material consolidated liabilities of
BancorpSouth, actual or contingent, which, in accordance with GAAP,
consistently applied, were required to be
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reflected or reserved against the consolidated balance sheet or deducted from
gross revenues in a consolidated income statement for the periods covered in
the BancorpSouth Financial Statements are disclosed therein.
Section 3.6 Legal Proceedings. Except as set forth in Schedule 3.6
hereto, there are no judicial or administrative proceedings of any kind or
nature pending or, to the knowledge of BancorpSouth, threatened against
BancorpSouth or Volunteer before any court or arbitral tribunal or before or by
any governmental department, agency, or instrumentality in any manner involving
BancorpSouth or Volunteer or any of its or their properties or capital stock or
the transactions contemplated by this Agreement which, if adversely determined
could have a Material Adverse Effect. Except as set forth in Schedule 3.6, (i)
there is, to the best of BancorpSouth's knowledge, no basis for any action,
suit, investigation, or proceeding against BancorpSouth or Volunteer before any
court or arbitral tribunal or before or by any governmental department, agency,
or instrumentality, which, if adversely determined could have a Material
Adverse Effect, (ii) there are no actions, suits, or proceedings pending or, to
the knowledge of BancorpSouth, threatened by or against any officer, director,
agent, or employee of BancorpSouth or of Volunteer in connection with the
business, properties, affairs, or prospects of BancorpSouth or any BancorpSouth
Subsidiary which, if adversely determined could have a Material Adverse Effect.
To the knowledge of BancorpSouth, neither BancorpSouth nor Volunteer is in
default with respect to any judgment, order, writ, injunction, decree, award,
rule, or regulation of any court, arbitrator, or governmental department,
agency, or instrumentality.
Section 3.7 Compliance with Law. BancorpSouth and Volunteer are in
compliance with the provisions of all applicable federal, state, and local
statutes, and all rules, regulations, or orders of, or understandings or
agreements with, governmental agencies having jurisdiction over the assets,
business, properties, operations, employees, revenue, income, prospects,
condition (financial or otherwise), liabilities, net worth, or results of
operations of BancorpSouth or Volunteer, except to the extent that
noncompliance would not have a Material Adverse Effect on BancorpSouth or
Volunteer. BancorpSouth and Volunteer have filed, and until the Effective Time
of the Transaction will continue to file, all reports required to be filed by
it or them with any regulatory agency on or prior to the date such reports were
due, and all such reports, as finally amended, complied and will comply in all
material respects with applicable requirements of law and, as of their
respective dates or the dates as amended, did not and will not contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were or will be made, not misleading.
Except to the
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extent stated therein, all financial statements and schedules included and to
be included in such reports were and will be prepared in accordance with GAAP
or such other regulatory accounting requirements as were applicable thereto,
applied on a consistent basis with prior periods, and fairly presented and will
fairly present the information purported to be shown therein.
Section 3.8 Governmental Authorizations. Each of BancorpSouth and
Volunteer has all licenses, permits, approvals, and other authorizations from
all federal, state, and local authorities as are necessary for the conduct of
its business and operations, and all such licenses, franchises, permits,
approvals, and other authorizations are in full force and effect and are not
subject to any condition, qualification, or limitation. Neither BancorpSouth
nor Volunteer has received any notification from any agency, department, or
instrumentality (or the staff thereof) of federal, state, or local government
asserting noncompliance with any of the laws, rules, regulations, or orders
that such governmental authority enforces or threatening to revoke any license,
franchise, permit, or governmental authorization.
Section 3.9 Supervisory Matters. There are no written agreements,
arrangements, orders, directives, decrees, commitments, or understandings
between BancorpSouth or Volunteer and any federal or state banking authorities
entered into as a result of matters raised in examination reports or
correspondence relating to BancorpSouth or Volunteer. Neither BancorpSouth nor
Volunteer has been advised by any regulatory agency that it is contemplating
issuing or requesting (or considering the appropriateness of issuing or
requesting) any written agreement, memorandum of understanding, order, decree,
directive, extraordinary supervisory letter, commitment letter, or similar
document or taking (or considering the appropriateness of taking) any prompt
corrective action (within the meaning of the FDIA). BancorpSouth is not aware
of any condition or provision of any action, report of examination, or other
regulatory report or finding that could reasonably be expected to delay
BancorpSouth from entering into this Agreement or obtaining regulatory approval
of all applications to be filed in connection with the transactions
contemplated by this Agreement, including without limitation, compliance with
the Community Reinvestment Act.
Section 3.10 Absence of Certain Changes or Events. Since December
31, 1994, neither BancorpSouth nor Volunteer has, except as set forth in
Schedule 3.10 (i) incurred any material liability, except in the ordinary
course of business, consistent with its past practice; (ii) suffered any
material adverse change in its business, operations, assets, or condition
(financial or other); (iii) made any material change in its method of
accounting; or (iv) failed to operate its business in all material respects in
the ordinary course consistent with its past practice.
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Section 3.11 Proxy Statement and S-4 Registration Statement. When
the S-4 Registration Statement or any post-effective amendment thereto shall
become effective, on the Mailing Date, and at all times subsequent to such
effective date or Mailing Date up to the Closing Date, the information with
respect to BancorpSouth and the BancorpSouth Subsidiaries set forth in the S-4
Registration Statement and in the Proxy Statement and in all amendments and
supplements thereto: (a) will comply in all material respects with the
provisions of the Securities Act and the Exchange Act and the General Rules and
Regulations of the SEC thereunder; and (b) will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements contained therein, in light
of the circumstances under which they were made, not misleading.
Section 3.12 Securities Reports. Since the BancorpSouth Common
Stock became registered under the Exchange Act, BancorpSouth has filed all
required reports, registrations, and statements, together with any amendments
required to be made thereto, all of which as of their respective dates were in
compliance with the rules and regulations of the SEC.
Section 3.13 Representations and Warranties True on and as of
Mailing Date and Closing Date. All the representations and warranties of
BancorpSouth, on behalf of itself and the BancorpSouth Subsidiaries, contained
in this Agreement will be true on and as of the Mailing Date and the Closing
Date, except to the extent affected (i) by the transactions contemplated
hereby, and (ii) by circumstances disclosed to Wes-Tenn occurring subsequent to
the date hereof which do not have a Material Adverse Effect upon BancorpSouth.
ARTICLE FOUR
COVENANTS AND AGREEMENTS
Section 4.1 Pre-Transaction Conduct of Business by Wes-Tenn, TCB,
and the TCB Subsidiaries. Wes-Tenn covenants and agrees, on its own behalf and
on behalf of TCB and the TCB Subsidiaries, that from the date hereof until the
Effective Time of the Transaction, unless BancorpSouth shall otherwise
specifically agree in writing or as otherwise specifically authorized herein:
(a) The business of Wes-Tenn, TCB, and each of the TCB Subsidiaries
shall be conducted only in the usual, regular, and ordinary course and in
substantially the same manner as heretofore conducted, and, to the extent
consistent with such business, Wes-Tenn shall use all reasonable efforts to
preserve, and shall cause TCB and each of the TCB Subsidiaries to use all
reasonable efforts to preserve, intact its business organization, to keep
available
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the services of its officers and employees, to maintain its rights and
franchises, and to preserve its relationships with customers, suppliers, and
others having business with Wes-Tenn to the end that its goodwill and
continuing business shall be unaffected in all material respects at the
Effective Time of the Transaction. Without limiting the generality of the
foregoing, TCB shall not enter into or become bound by any contract, plan,
commitment, or instrument described in Section 2.14 hereof or enter into any
transaction (whether or not described in Section 2.14 hereof) involving the
expenditure, commitment, or lending of money or credit in excess of its legal
lending limit.
(b) Neither Wes-Tenn, TCB, nor any TCB Subsidiary shall (i) issue any
shares of capital stock, (ii) declare, set aside, or pay any dividend or other
distribution payable in cash, stock, or property with respect to shares of its
outstanding capital stock, provided, however, that Wes-Tenn may declare and pay
regular quarterly dividends in an amount not to exceed $0.0950 per share; (iii)
make any change in its capital stock by split, reverse split, reclassification,
reorganization, subdivision, or otherwise; (iv) acquire any shares of its
capital stock by tender, redemption, or otherwise; (v) amend its Governing
Documents; or (vi) merge or consolidate with or into, or permit the merger into
it of, any other association, corporation, trust, or entity or change the
character of its business.
(c) Neither Wes-Tenn, TCB, nor any TCB Subsidiary shall grant any stock
options, warrants, rights, or other securities convertible into, or exercisable
or exchangeable for, shares of its capital stock.
(d) Neither Wes-Tenn, TCB, nor any TCB Subsidiary shall incur any
obligations, commitments, or liabilities, whether primarily or by way of
guaranty, having a maturity of more than one year from the date of its
creation, other than in the ordinary course of business consistent with past
practice.
(e) Neither Wes-Tenn, TCB, nor any TCB Subsidiary shall make any
capital expenditures of more than $50,000 individually or $100,000 in the
aggregate.
(f) Neither Wes-Tenn, TCB, nor any TCB Subsidiary shall enter into any
supply contracts, leases, or other agreements that cannot be terminated without
penalty and/or notice of not more than 30 days.
(g) Except as required by law, neither Wes-Tenn, TCB, nor any TCB
Subsidiary shall change any loan, investment, or management policies or make
any material alteration in the manner of keeping its books, accounts, and
records.
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(h) Neither Wes-Tenn, TCB, nor any TCB Subsidiary shall grant any
salary increase (other than as required by any existing contract) or enter into
any new employment or employee benefit contract or arrangement except in the
ordinary course of business and consistent with its current practices.
(i) Neither Wes-Tenn, TCB, nor any TCB Subsidiary shall sell or
otherwise dispose of, or agree to sell or otherwise dispose of, any assets
other than in the ordinary course of business.
(j) Neither Wes-Tenn, TCB, nor any TCB Subsidiary shall take any action
that would in any manner adversely affect the ability of any party hereto to
obtain the approvals of any governmental authorities required for consummation
of the transactions contemplated hereby or otherwise interfere with, impede,
delay, or make more costly the consummation of the transactions contemplated
hereby.
(k) Neither Wes-Tenn, TCB, nor any TCB Subsidiary shall authorize or
permit any officer, director, employee, investment banker, financial
consultant, attorney, accountant, or other agent or representative of Wes-Tenn,
directly or indirectly, to initiate contact with any person or entity in an
effort to solicit, initiate, or encourage any "Takeover Proposal" (as such term
is defined below). In addition, except as the fiduciary duties of the board of
directors of Wes-Tenn, TCB, or a TCB Subsidiary may otherwise require (as
evidenced by a reasoned opinion of counsel received prior thereto, with a copy
promptly furnished to BancorpSouth) with respect to an unsolicited, bona fide,
written Takeover Proposal, neither Wes-Tenn, TCB, nor any TCB Subsidiary shall
authorize or permit any officer, director, employee, investment banker,
financial consultant, attorney, accountant, or other agent or representative of
Wes-Tenn, TCB, or a TCB Subsidiary, directly or indirectly, (i) to cooperate
with, or furnish or cause to be furnished any non-public information concerning
the assets, operations, business, properties, prospects, or condition
(financial or otherwise), of Wes-Tenn, TCB, or any TCB Subsidiary to any person
or entity in connection with any Takeover Proposal; (ii) to negotiate any
Takeover Proposal with any person or entity; or (iii) to enter into any
agreement or agreement in principle as to any Takeover Proposal. Wes-Tenn
shall promptly give notice to BancorpSouth upon becoming aware of any Takeover
Proposal. As used in this Agreement, "Takeover Proposal" shall mean any
proposal, other than as contemplated by this Agreement, for a merger or other
business combination involving Wes-Tenn, TCB, or a TCB Subsidiary or for the
acquisition of a substantial equity interest in Wes-Tenn, TCB, or a TCB
Subsidiary, or for the acquisition of a substantial portion of the assets of
Wes-Tenn, TCB, or a TCB Subsidiary. The provisions of this paragraph shall
supplement those set forth in the Stock Option Agreement, of even date
herewith, between BancorpSouth and Wes-Tenn.
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(l) Wes-Tenn shall not take or fail to take, and shall cause each of
TCB and the TCB Subsidiaries not to take or fail to take, any action that would
cause any of the representations or warranties made by Wes-Tenn on its own
behalf or on behalf of TCB or any TCB Subsidiary in this Agreement to be or
become untrue. Wes-Tenn shall promptly notify BancorpSouth in writing of the
existence or happening of any fact, event, or occurrence that alters, will
alter, or may be expected to alter, in an important or potentially important
respect, the accuracy or completeness of any representation or warranty by
Wes-Tenn contained in this Agreement.
(m) Neither Wes-Tenn, TCB, nor any TCB Subsidiary shall extend credit
or accept any deposit or engage in any similar transaction other than on
substantially the same terms (including, without limitation, interest rates and
collateral) as those prevailing at the time for comparable transactions by
other banks in the same geographic market.
Section 4.2 Conduct of Business of BancorpSouth and BancorpSouth
Subsidiaries. Except as contemplated herein, BancorpSouth will and will cause
the BancorpSouth Subsidiaries to take no action which would (i) adversely
affect the ability of any of them to obtain any necessary approvals of
governmental authorities required for the Transaction without imposition of a
condition or restriction of the type referred to in Section 4.6 of this
Agreement or (ii) adversely affect the ability of BancorpSouth to perform its
covenants and agreements under this Agreement.
Section 4.3 Access and Information.
(a) Access. Wes-Tenn, TCB, and the TCB Subsidiaries shall afford to
BancorpSouth and to BancorpSouth's accountants, counsel, and other
representatives, full access during normal business hours and for reasonable
periods throughout the period prior to the Effective Time of the Transaction to
all of their respective properties, books, contracts, commitments, and records
(including but not limited to tax returns). BancorpSouth shall afford to
Wes-Tenn, full access during normal business hours and for reasonable periods
throughout the period prior to the Effective Time of the Transaction to all of
the filings referred to in Section 3.12 hereof and the opportunity to discuss
the same with appropriate officers, attorneys, and representatives of
BancorpSouth. From the date of this Agreement to the Closing Date, the parties
hereto shall furnish promptly to its representatives (i) a copy of each report,
schedule, piece of correspondence, and other document delivered to, filed with,
or received by any of them pursuant to the requirements of federal or state
laws in connection with this Agreement; and (ii) written notice of any event or
development (A) which, had it been known on the date of this Agreement, would
have been required to be disclosed under this Agreement, (B) which would cause
any of the representations and
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warranties of Wes-Tenn or of BancorpSouth contained herein to be inaccurate or
incomplete or otherwise misleading, or (C) constituting a material adverse
change in its condition or that of any of its respective subsidiaries that
might adversely affect the consummation of the Transaction or which would cause
or constitute a material breach of any of the representations, warranties or
covenants of the parties contained herein. The parties hereto shall use their
best efforts to prevent or promptly remedy the same. Any inspection or
investigation performed pursuant to this Section 4.3(a) shall be conducted in a
manner so as not to interfere unreasonably with the operation of the business
of the entity being inspected or investigated and shall not affect or limit in
any way any of their respective representations and warranties hereunder.
(b) Confidential Information. Any and all commercial, financial,
technical, or other information regarding BancorpSouth or Wes-Tenn or their
respective businesses, properties, and personnel, or those of their respective
subsidiaries, joint ventures, officers, directors, control persons, or
affiliates ("Confidential Information") which is derived or results from one
party's access to the properties, books, contracts, commitments, and records of
the other pursuant to the provisions of this Agreement, whether obtained before
or after the execution of this Agreement, shall be held in strict confidence;
and the party gaining access to such Confidential Information shall exercise
the same degree of care with respect thereto that any such party uses to
preserve and safeguard its own confidential proprietary information. Such
Confidential Information shall not directly or indirectly be divulged,
disclosed, or communicated to any other person or entity or used for any
purposes other than those expressly contemplated by this Agreement, except as
otherwise required by judicial or regulatory authorities having jurisdiction in
respect thereof. In the event the transactions contemplated by this Agreement
are not consummated for any reason, all copies of all documents and other
recorded material comprising such Confidential Information shall immediately be
returned and shall not thereafter be used for any purpose by the acquiring
party or any subsidiary or affiliate thereof, and the confidentiality of such
Confidential Information shall be maintained, except to the extent that such
Confidential Information can be shown to be or to have been (i) otherwise known
to the acquiring party, (ii) already in the public domain, (iii) released
without restriction by the proprietor of the Confidential Information to
another person, or (iv) received by the acquiring party on a non-confidential
basis from another person lawfully possessing and lawfully entitled to disclose
such information. This latter undertaking with respect to nondisclosure of
Confidential Information is of the essence and will survive any termination of
this Agreement or the transactions contemplated hereby.
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Section 4.4 Proxy Statement. Wes-Tenn shall timely mail the Proxy
Statement to the shareholders of Wes-Tenn who are entitled to vote at the
Wes-Tenn Shareholders' Meeting.
Section 4.5 Furnishing of Information.
(a) Wes-Tenn shall promptly furnish BancorpSouth with such information
relating to Wes-Tenn, TCB, and the TCB Subsidiaries as is required under
applicable laws and regulations for inclusion in any filing with state or
federal authorities necessary to obtain approval for, or to give notice of, the
Transaction or any other transaction contemplated hereby (including, without
limitation, any documents filed or to be filed by BancorpSouth or Wes-Tenn with
any Regulatory Authorities for authority to consummate the transactions
contemplated hereby). Wes-Tenn will promptly furnish to BancorpSouth copies of
all quarterly and annual financial reports filed by Wes-Tenn or TCB with state
or federal regulatory authorities, as well as any examination or similar
reports received from such persons, and any correspondence related thereto, to
the extent permitted by applicable law. Until the Effective Time of the
Transaction, Wes-Tenn shall provide to BancorpSouth, on or before the twentieth
day of each calendar month, monthly financial statements generated by Wes-Tenn
and TCB for the preceding calendar month period, including a balance sheet and
income statement.
(b) BancorpSouth and Wes-Tenn shall provide to each other copies of all
applications, documents, correspondence, or oral (to the extent material) or
written comments that each of them or any of their affiliates files with, sends
to, or receives from any Regulatory Authority or any other state or federal
authorities, or the staff or agents of any of them, relating to this Agreement
and the transactions contemplated hereby, including any applications filed for
the purpose of obtaining any required regulatory approvals. Copies of all such
applications, documents, correspondence, or comments shall be provided by each
of BancorpSouth and Wes-Tenn to the other's counsel.
Section 4.6 Filing for All Regulatory Approvals. Subject to the
provisions of Section 4.5 hereof, for the purpose of obtaining regulatory
approval of the Transaction, BancorpSouth shall prepare and file all necessary
documents with any Regulatory Authority. BancorpSouth and Wes-Tenn shall each
diligently pursue the regulatory approval process by taking such actions, and
causing their respective subsidiaries to take such actions, as may be required
to effect the Transaction and all other transactions contemplated by this
Agreement. Notwithstanding the foregoing, nothing herein shall require
BancorpSouth to take any action, accept any condition, or make any concession
which BancorpSouth reasonably determines would be materially adverse to the
assets, business, operations, employees, revenues, income, prospects,
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condition (financial or otherwise), liabilities, net worth, or results of
operations of BancorpSouth or Wes-Tenn or their subsidiaries.
Section 4.7 No Control of Wes-Tenn by BancorpSouth.
Notwithstanding any other provision hereof, until the Effective Time of the
Transaction, the management of Wes-Tenn and the authority to establish and
implement its business policies shall continue to reside solely in Wes-Tenn's
officers and board of directors, and the election of Wes-Tenn's directors shall
be solely the prerogative of Wes-Tenn's shareholders.
Section 4.8 Agreements to Use Best Efforts. Subject to the terms
and conditions set forth in this Agreement, Wes-Tenn and BancorpSouth each
agrees to use its best efforts to take, or cause to be taken, all actions and
to do, or cause to be done, all things necessary, proper, or advisable to
consummate and make effective, as promptly as practicable, the transactions
contemplated by this Agreement and to cooperate with each other in connection
with the foregoing, including using best efforts (A) to obtain all necessary
consents, approvals, and authorizations as are required to be obtained under
applicable state and federal statutes and regulations, (B) to defend all
lawsuits or other legal proceedings challenging this Agreement or the
consummation of the transactions contemplated hereby, (C) to lift or rescind
any injunction or restraining order or any other order or condition adversely
affecting the ability of the parties to consummate the transactions
contemplated by this Agreement, (D) to effect all necessary filings with state
and federal regulatory agencies, and (E) to continue the business enterprise of
Wes-Tenn, within the meaning of Section 368 of the Code, for the purpose of
causing the Parent Merger to be a tax-free transaction to the shareholders of
Wes- Tenn. In the event of the imposition of a condition to any approval by
any state or federal regulatory authority necessary for the valid consummation
of the transactions contemplated by this Agreement, which in the reasonable
judgment of BancorpSouth is materially burdensome to the ongoing business of
the Surviving Corporation or the Surviving Bank, BancorpSouth may, in its sole
discretion, take such action as BancorpSouth may deem appropriate for the
purpose of obtaining the removal or modification of such condition; provided,
however, that nothing in this Section 4.8 shall require BancorpSouth to
institute any litigation in connection therewith, to continue any actions
subsequent to any termination of this Agreement, or to assume any obligation
that it deems not to be in its best interest or the best interests of any
BancorpSouth Subsidiary.
Section 4.9 Press Releases and Public Information. Subject to
compliance with their respective legal obligations, BancorpSouth and Wes-Tenn
will advise and confer with each other and otherwise cooperate in good faith
prior to releasing any statement to the
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press or otherwise making public any information concerning any of the
transactions contemplated herein.
Section 4.10 Updating of the Schedules. Wes-Tenn and BancorpSouth
shall, from time to time, prepare and deliver to each other such supplements to
the Schedules attached hereto as may be necessary or appropriate to ensure the
accuracy and completeness of the information required to be disclosed in such
Schedules at all times prior to the Effective Time of the Transaction, provided
that the furnishing of any such supplement to such Schedules shall not modify,
limit, or otherwise affect any representations or warranties of Wes-Tenn or
BancorpSouth contained herein or any rights of Wes-Tenn or BancorpSouth
relating to changes reflected on such updated schedules.
Section 4.11 Accounting and Tax Treatment. Each of BancorpSouth and
Wes-Tenn undertakes and agrees to use its best efforts to cause the Transaction
to qualify for pooling of interests accounting treatment and as a tax-free
reorganization under Section 368(a) of the Code.
Section 4.12 Agreement of Affiliates. Wes-Tenn shall deliver to
BancorpSouth, no later than 10 days after the date of this Agreement, a letter
identifying each person whom Wes-Tenn reasonably believes is an "affiliate" of
Wes-Tenn for purposes of Rule 145 under the Securities Act. Wes-Tenn shall use
its best efforts to cause each person who is identified as an "affiliate" in
such letter to deliver to the Surviving Corporation, not later than the date on
which the Parent Merger is approved by the FRB, a written agreement,
substantially in the form of Exhibit 4.12, providing that such person will not
sell, pledge, transfer, or otherwise dispose of the shares of Wes-Tenn Common
Stock held by such person except as contemplated by this Agreement and will not
sell, pledge, transfer, or otherwise dispose of the shares of BancorpSouth
Common Stock to be received by such person upon consummation of the Transaction
except in compliance with applicable provisions of the Securities Act and the
rules and regulations thereunder and until such time as financial results
covering at least thirty (30) days of operations of the Surviving Corporation
have been published within the meaning of Section 201.01 of the SEC's
Codification of Financial Reporting Policies. Shares of the Surviving
Corporation's common stock issued to affiliates of Wes-Tenn in exchange for
Wes-Tenn Common Stock shall not be transferable until such time as financial
results covering at least thirty (30) days of operations of the Surviving
Corporation have been published within the meaning of Section 201.01 of the
SEC's Codification of Financial Reporting Policies, regardless of whether each
such affiliate has provided the written agreement referred to in this Section
4.12. The Surviving Corporation shall not be required to maintain the
effectiveness of the S-4 Registration Statement under the Securities Act for
the
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purposes of resale of the Surviving Corporation's common stock by such
affiliates.
Section 4.13 Reports. BancorpSouth shall timely file all reports
required to be filed with the SEC, the Nasdaq Stock Market and the FRB between
the date of this Agreement and the Effective Time and shall deliver to West-Ten
copies of all such reports promptly after the same are filed. If financial
statements are contained in such reports to the SEC, such financial statements
will fairly present the financial position of BancorpSouth and the BancorpSouth
Subsidiaries on a consolidated basis as of the date indicated and the results
of operations and changes in the financial position for the period indicated
and the results of operations and changes in the financial position for the
period then ended in accordance with GAAP applicable to banks and bank holding
companies, applied on a consistent basis. As of their respective dates such
reports filed with the SEC will comply in all material respects with the rules
and regulations promulgated by the SEC and will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
Section 4.14 Listing. BancorpSouth shall use its best efforts to
have the Nasdaq Stock Market approve the listing of the BancorpSouth Common
Stock to be issued hereunder.
Section 4.15 Indemnification. BancorpSouth agrees that all rights
to indemnification and all limitations of liability existing in favor of the
officers and directors of Wes-Tenn and TCB as provided in their respective
charters and bylaws as of the date hereof with respect to matters occurring
prior to the Effective Time shall survive the Transaction and shall continue in
full force and effect, without any amendment thereto, for a period of not less
than three (3) years from the Effective Time; provided, however, that all
rights to any indemnification in respect of any claim (a "Claim") asserted or
made within such period shall continue until the final disposition of such
Claim.
ARTICLE FIVE
CONDITIONS PRECEDENT TO OBLIGATION TO CLOSE
Section 5.1 Conditions to Both Parties' Obligation to Close. The
obligations of BancorpSouth and Wes-Tenn under this Agreement to consummate the
transactions contemplated hereby are subject to the satisfaction of the
following conditions precedent at or prior to (as the case may be) the Closing,
unless any one or more of such conditions, to the extent legally permitted,
shall be waived in writing by the parties hereto on or before the Closing Date:
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(a) Government Approvals. Any and all orders, permits, approvals, or
qualifications from all appropriate state and federal governmental authorities,
including without limitation the Regulatory Authorities required for the lawful
consummation of the Transaction, shall have been obtained within six months
following the date of this Agreement, subject to no conditions which in the
reasonable judgment of BancorpSouth would be materially burdensome to the
ongoing business of the Surviving Corporation or the Surviving Bank after
consummation of the Transaction; provided, however, that if BancorpSouth is
continuing in good faith to seek regulatory approvals at the end of such
six-month period, BancorpSouth may request that Wes-Tenn agree to extend the
term of this Agreement by another three months, approval of which request shall
not be unreasonably withheld by Wes-Tenn. Any waiting period required prior to
the consummation of such transactions pursuant to any applicable laws or
regulations shall have elapsed, and no court, arbitral tribunal, or
governmental agency shall have enjoined, restrained, or prohibited the
transactions contemplated by this Agreement, which injunction, restraint, or
prohibition shall not have been removed.
(b) Shareholder Approval. This Agreement shall have been adopted and
approved by the shareholders of Wes-Tenn by at least the vote of such
shareholders required for such adoption and approval pursuant to the Governing
Documents of Wes-Tenn and all applicable laws and regulations. If required
under Section 1.5 hereof, this Agreement shall have been adopted and approved
by the shareholders of BancorpSouth by at least the vote of such shareholders
required for such adoption and approval pursuant to the Governing Documents of
BancorpSouth and all applicable laws and regulations.
(c) Fairness Opinion. Wes-Tenn shall have obtained an opinion, dated
as of the date of this Agreement and as of the Mailing Date and issued to
Wes-Tenn and its shareholders by Morgan Keegan & Company, Inc. or another
investment banking firm or consulting firm acceptable to both BancorpSouth and
Wes-Tenn, suitable for inclusion in the Proxy Statement, that the transactions
contemplated by this Agreement are fair to the shareholders of Wes-Tenn from a
financial point of view.
(d) Pooling; Tax Treatment. BancorpSouth and Wes-Tenn shall have
received an opinion of KPMG Peat Marwick, reasonably satisfactory to each party
in form and substance, to the effect that the Transaction will qualify for
pooling of interests accounting treatment. The amount of cash consideration
payable to Wes-Tenn shareholders by BancorpSouth shall be no greater than (i)
9.9% of the total consideration, or (ii) such lesser amount as may be required
for the Transaction to qualify as a pooling of interests. Wes-Tenn and
BancorpSouth shall have obtained an opinion of KPMG Peat Marwick, dated the
Mailing Date and in form
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and substance reasonably satisfactory to counsel for Wes-Tenn, that the
Transaction shall be treated for federal income tax purposes as a tax-free
reorganization.
(e) Securities Laws; NASDAQ Listing. The S-4 Registration Statement
shall have been declared effective. No order suspending the sale of the shares
of BancorpSouth Common Stock in any jurisdiction shall have been issued, and no
proceedings for that purpose shall have been instituted or shall be, to
BancorpSouth's knowledge, contemplated. The BancorpSouth Common Stock to be
issued to Wes-Tenn shareholders shall be qualified for listing on the NASDAQ
Stock Market.
Section 5.2 Conditions to Wes-Tenn's Obligation to Close. The
obligations of Wes-Tenn under this Agreement to consummate the transactions
contemplated hereby are subject to the satisfaction of the following
conditions, on or prior to the Closing Date, unless any one or more of such
conditions, to the extent legally permitted, are waived in writing by Wes-Tenn
on or before the Closing Date:
(a) Accuracy of Representations and Warranties. The representations
and warranties of BancorpSouth herein contained shall have been true and
correct when made, and, in addition, shall be true and correct on and as of the
Closing Date, with the same force and effect as though made on and as of the
Closing Date, except as affected by transactions specifically contemplated or
permitted hereby and except for any such representations and warranties made as
of a specific date, which shall be true and correct as of such date.
(b) Performance of Covenants and Agreements. BancorpSouth shall have
performed in all material respects all obligations and agreements and complied
with all covenants contained in this Agreement to be performed and complied
with by BancorpSouth on or prior to the Closing Date.
(c) No Material Change. Between the date of this Agreement and the
Closing Date, there shall not have occurred any material adverse change in the
consolidated assets, income, condition (financial or otherwise), liabilities,
net worth, or results of operations of BancorpSouth from that existing on the
date of this Agreement; provided, that adverse fluctuations in the market price
for BancorpSouth Common Stock shall not be considered an indication of the
existence of a material adverse change.
(d) Opinion of Counsel. BancorpSouth shall have delivered to Wes-Tenn
an opinion or opinions of counsel, dated as of the Closing, in form and
substance satisfactory to Wes-Tenn and its counsel, to the effect that:
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(i) BancorpSouth is a corporation organized, validly existing,
and in good standing under the laws of the State of Mississippi and is
duly registered as a bank holding company under the Act; Volunteer is a
banking corporation organized, validly existing, and in good standing
under the laws of the State of Tennessee; and each of BancorpSouth and
Volunteer has full corporate power to own and operate its business and
properties and to carry on its business as currently conducted.
(ii) The authorized capital stock of BancorpSouth consists solely
of 500,000,000 shares of BancorpSouth Common Stock, of which [_________]
shares are validly issued and outstanding, fully paid and nonassessable,
and have not been issued in violation of the preemptive rights of any
person.
(iii) To the knowledge of such counsel, other than as described in
the Merger Agreement or the Schedules thereto, there are no outstanding
subscriptions, options, warrants, or rights to acquire or issue, or any
outstanding securities or obligations convertible into, shares of
BancorpSouth Common Stock.
(iv) To the knowledge of such counsel, other than as described in
the Merger Agreement or the Schedules thereto, there are no outstanding
obligations to purchase, reacquire, or redeem any shares of BancorpSouth
Common Stock.
(v) Execution, delivery, and performance of this Agreement by
BancorpSouth and consummation of the transactions contemplated hereby do
not and will not conflict with, or result in the breach of, or constitute
a default under, any of the provisions of the Governing Documents of
BancorpSouth or, to such counsel's knowledge, any agreement to which
BancorpSouth is a party or by which its properties or assets may be
bound.
(vi) BancorpSouth has full corporate power and corporate authority
to make, execute, deliver, and perform this Agreement, and this Agreement
has been duly authorized and approved by all necessary corporate action
of BancorpSouth and constitutes a valid and legally binding obligation of
BancorpSouth.
(vii) All filings and registrations with, and notifications to, all
federal and state authorities (including, without limitation, the FRB)
required on the part of BancorpSouth for the consummation of the
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Transaction have been made, all approvals and authorizations of all
federal and state authorities (including, without limitation, the FRB)
required with respect to BancorpSouth for consummation of the Transaction
are in full force and effect, and all applicable waiting periods have
passed.
(viii) Counsel has no reason to believe that (A) the S-4
Registration Statement or the Proxy Statement, as amended or supplemented
to the date of such opinion, contains any untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, insofar as those
documents relate to information provided by or at the direction of
BancorpSouth or Volunteer, or (B) there are any contracts or documents of
a character required to be described in the S-4 Registration Statement or
the Proxy Statement or to be filed as Exhibits to the S-4 Registration
Statement that have not been described or filed as required.
(ix) Counsel does not know of any claim, litigation, arbitration
proceeding, labor dispute, or investigation of any kind pending or
threatened against BancorpSouth or Volunteer in any court or before any
federal, state, municipal, or other governmental agency or
instrumentality or under any statute or regulation that is required to be
described in the S-4 Registration Statement or the Proxy Statement and is
not so described.
(x) Upon the filing of articles of merger with respect to this
Agreement with the Mississippi Secretary of State, the Parent Merger
shall be effective under Mississippi law.
The foregoing opinion shall be qualified to provide that counsel assumes no
responsibility for the accuracy, completeness, or fairness of any financial
statements or other financial or statistical data contained in the S-4
Registration Statement or the Proxy Statement, with respect to the information
relating to BancorpSouth or the BancorpSouth Subsidiaries contained in such S-4
Registration Statement or the Proxy Statement. In rendering such opinion,
counsel may rely on certifications of factual matters made by officers and
directors of BancorpSouth or the BancorpSouth Subsidiaries, certificates of
public officials, and opinions of local counsel acceptable to BancorpSouth.
(e) Updated BancorpSouth Schedules. BancorpSouth shall have delivered
to Wes-Tenn such supplements as may be necessary or appropriate to ensure the
accuracy and completeness as of the
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Closing Date of the information disclosed in the Schedules provided by
BancorpSouth pursuant hereto.
Section 5.3 Conditions to BancorpSouth's Obligation to Close. The
obligations of BancorpSouth under this Agreement to consummate the transactions
contemplated hereby are subject to the satisfaction of the following additional
conditions, on or prior to the Closing Date, unless any one or more of such
conditions, to the extent legally permitted, shall be waived in writing by
BancorpSouth on or before the Closing Date:
(a) Accuracy of Representations and Warranties. The representations
and warranties of Wes-Tenn herein contained shall have been true and correct in
all respects when made, and, in addition, shall be true and correct in all
respects on and as of the Closing Date, with the same force and effect as
though made on and as of the Closing Date, except as affected by transactions
specifically contemplated or permitted hereby and except for any such
representations and warranties made as of a specific date, which shall be true
and correct in all respects as of such date.
(b) Performance of Covenants and Agreements. Wes-Tenn shall have
performed in all material respects all obligations and agreements and complied
with all covenants contained in this Agreement to be performed and complied
with by Wes-Tenn on or prior to the Closing Date.
(c) No Material Change. Between the date of this Agreement and the
Closing Date, there shall not have occurred any material adverse change in the
assets (including loan portfolio), business, operations, employees, revenue,
income, prospects, condition (financial or otherwise), liabilities, net worth,
or results of operations of Wes-Tenn, TCB, or any TCB Subsidiary from that
existing on the date hereof.
(d) Opinion of Counsel. Wes-Tenn shall have delivered to BancorpSouth
an opinion or opinions of counsel, dated as of the Closing, in form and
substance reasonably satisfactory to BancorpSouth and its counsel, to the
effect that:
(i) Wes-Tenn is a corporation organized, validly existing, and in
good standing under the laws of the State of Tennessee and is duly
registered as a bank holding company under the Act; TCB is a state
banking association organized, validly existing, and in good standing
under the laws of their respective states of incorporation; each of TCF,
Wes-Tenn Mortgage, and West Tennessee Life is a nonbank corporation
organized, validly existing, and in good standing under the laws of the
State of Tennessee; and each of Wes-Tenn, TCB, and each of the TCB
Subsidiaries has full corporate power to
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own and operate its business and properties and to carry on its business
as currently conducted.
(ii) The authorized capital stock of Wes-Tenn consists solely of
10,000,000 shares of Wes-Tenn Common Stock, of which 2,519,212 shares are
validly issued and outstanding, fully paid and nonassessable, and have
not been issued in violation of the preemptive rights of any person; the
authorized capital stock of TCB consists solely of 48,000 shares of
common stock, of which 48,000 shares are validly issued and outstanding,
fully paid and nonassessable, have not been issued in violation of the
preemptive rights of any person, and are wholly-owned by Wes-Tenn; the
authorized capital stock of TCF consists solely of 100 shares of common
stock, of which 4 shares are validly issued and outstanding, fully paid
and nonassessable, have not been issued in violation of the preemptive
rights of any person, and are wholly-owned by Wes-Tenn; the authorized
capital stock of Wes-Tenn Mortgage consists solely of 1000 shares of
common stock, of which 1000 shares are validly issued and outstanding,
fully paid and nonassessable, have not been issued in violation of the
preemptive rights of any person, and are wholly-owned by Wes-Tenn; the
authorized capital stock of West Tennessee Life consists solely of
2,000,000 shares of common stock, of which 100,000 shares are validly
issued and outstanding, fully paid and nonassessable, have not been
issued in violation of the preemptive rights of any person, and are
wholly-owned by Wes-Tenn;
(iii) To the knowledge of such counsel, there are no outstanding
subscriptions, options, warrants, or rights to acquire or issue, or any
outstanding securities or obligations convertible into, shares of
Wes-Tenn Common Stock or common stock of TCB or any TCB Subsidiary.
(iv) To the knowledge of such counsel, there are no outstanding
obligations to purchase, reacquire, or redeem any shares of Wes-Tenn
Common Stock or common stock of TCB or any TCB Subsidiary.
(v) Execution, delivery, and performance of this Agreement by
Wes-Tenn and consummation of the transactions contemplated hereby do not
and will not conflict with, or result in the breach of, or constitute a
default under, any of the provisions of the Governing Documents of
Wes-Tenn or, to such counsel's knowledge, of any other agreement to which
Wes-Tenn, TCB, or any TCB Subsidiary is a party or by which its
properties or assets (or the properties or assets of TCB or any TCB
Subsidiary) may be bound.
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(vi) Wes-Tenn has full corporate power and corporate authority to
execute, deliver, and perform this Agreement, and this Agreement has been
duly authorized, approved, and adopted by all necessary corporate action
of Wes-Tenn, and by the shareholders of Wes-Tenn, and constitutes a valid
and legally binding obligation of Wes-Tenn.
(vii) All filings and registrations with, and notifications to, all
federal and state authorities required on the part of Wes-Tenn for the
consummation of the Transaction have been made; all approvals and
authorizations of all federal and state authorities required with respect
to Wes-Tenn for consummation of the Transaction are in full force and
effect, and all applicable waiting periods have passed.
(viii) Counsel has no reason to believe that (A) the S-4
Registration Statement or the Proxy Statement, as amended or supplemented
to the date of such opinion, contains any untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, insofar as those
documents relate to information provided by or at the direction of
Wes-Tenn, TCB, or any TCB Subsidiary, or (B) there are any contracts or
documents of a character required to be described in the S-4 Registration
Statement or the Proxy Statement or to be filed as Exhibits to the S-4
Registration Statement that have not been described or filed as required
insofar as such contracts or documents relate to Wes-Tenn, TCB, or any
TCB Subsidiary.
(ix) Upon the filing of this Agreement or a certificate of merger
with respect to this Agreement with the Tennessee Secretary of State, the
Parent Merger shall be effective under Tennessee law.
The foregoing opinion shall be qualified to provide that counsel assumes
no responsibility for the accuracy, completeness, or fairness of any financial
statements or other financial or statistical data contained in the S-4
Registration Statement or the Proxy Statement, with respect to the information
relating to Wes-Tenn, TCB, or any TCB Subsidiary contained in such S-4
Registration Statement or the Proxy Statement. In rendering such opinion,
counsel may rely on certifications of factual matters made by officers and
directors of Wes-Tenn, TCB, or any TCB Subsidiary, certificates of public
officials, and opinions of local counsel acceptable to BancorpSouth.
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<PAGE> 47
(e) Letter of Wes-Tenn CPA. Wes-Tenn shall have delivered to
BancorpSouth a letter from the Wes-Tenn CPA, in form and substance satisfactory
to BancorpSouth and dated as of the Mailing Date, to the effect that:
(i) they are independent certified public accountants with
respect to Wes-Tenn, TCB, and the TCB Subsidiaries within the meaning of
the Securities Act and the applicable rules and regulations thereunder;
(ii) in their opinion the consolidated financial statements of
Wes-Tenn, TCB, and the TCB Subsidiaries examined by them and included in
the S-4 Registration Statement or Proxy Statement comply as to form in
all material respects with the applicable accounting requirements of the
Securities Act and the Exchange Act, and of the rules and regulations
issued by the SEC thereunder; and
(iii) at the request of BancorpSouth they have taken the following
actions on a specified date not more than five business days prior to the
Mailing Date, which actions do not constitute an examination in
accordance with GAAP consistently applied as follows: (A) read the
financial statements included in the S-4 Registration Statement or the
Proxy Statement, if any; (B) read the financial statements for the period
from the date of the most recent financial statements included in the
Proxy Statement through the date of the most recent interim financial
statements available in the ordinary course of business; (C) read the
minutes of the meetings of stockholders of Wes-Tenn and of the Boards of
Directors of Wes-Tenn, TCB, and each TCB Subsidiary from January 1, 1995
to said date not more than five business days prior to the Mailing Date;
and (D) made inquiries of certain officers and employees of Wes-Tenn,
TCB, and each TCB Subsidiary who have responsibility for financial and
accounting matters as to (1) whether the financial statements included in
the S-4 Registration Statement or the Proxy Statement, if any, comply as
to form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act, respectively,
and the published rules and regulations issued by the SEC thereunder; (2)
whether said financial statements are fairly presented in conformity with
GAAP consistently applied; and (3) whether there has been any change in
capital stock or long-term debt or any material decrease in combined
total assets, stockholders' equity, income before income taxes, or in the
total or per share amounts of combined income before securities gains or
losses or net income of Wes-Tenn, TCB, or the TCB
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<PAGE> 48
Subsidiaries; and, based on such investigations, nothing has come to
their attention which would cause them to believe that: (i) the financial
statements of Wes-Tenn, TCB, and the TCB Subsidiaries included in the S-4
Registration Statement or the Proxy Statement, if any, do not comply as
to form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act, respectively,
and the rules and regulations issued by the SEC thereunder; (ii) said
financial statements are not fairly presented in conformity with GAAP
consistently applied; (iii) as of said date not more than five business
days prior to the Mailing Date, there was, except as set forth in the S-4
Registration Statement or the Proxy Statement, any (x) change in capital
stock or long-term debt of Wes-Tenn, TCB, or any TCB Subsidiary or (y)
decrease in consolidated total assets or stockholders' equity of
Wes-Tenn, TCB, or any TCB Subsidiary, in each case as compared with the
amounts shown in the combined balance sheet of Wes-Tenn, TCB, and the TCB
Subsidiaries at the date of the most recent financial statements included
in the S-4 Registration Statement or the Proxy Statement; or (iv) for the
period from the date of the most recent financial statements included in
the S-4 Registration Statement or the Proxy Statement to said date not
more than five business days prior to the Mailing Date, there were not,
except as set forth in the S-4 Registration Statement or the Proxy
Statement, any decreases, as compared with the corresponding portion of
the preceding 12-month period, in combined income before income taxes or
in the total or per share amounts of income before securities gains or
losses or combined net income.
BancorpSouth may, at its own cost and expense, require that the Letter of the
Wes-Tenn CPA be reissued at the Closing Date, confirming the conclusions
reached therein as of a date not more than five (5) business days prior to the
Closing Date.
(f) Updated Wes-Tenn Schedules. Wes-Tenn shall have delivered to
BancorpSouth such supplements as may be necessary or appropriate to ensure the
accuracy and completeness as of the Closing Date of the information disclosed
in the Schedules provided by Wes-Tenn pursuant hereto.
(g) Outstanding Shares. Not more than 2,519,212 shares of Wes-Tenn
Common Stock shall be outstanding immediately prior to the Effective Time of
the Transaction, and there shall be outstanding no other equity securities or
other securities convertible into, or exercisable or exchangeable for, equity
securities of Wes-Tenn or any securities or agreements providing for the
issuance of equity securities of TCB or any TCB Subsidiary.
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<PAGE> 49
(h) Resignations of Officers and Directors. The directors and
statutory officers of Wes-Tenn, TCB, and each TCB Subsidiary shall have
submitted their resignations, effective as of the Effective Time of the
Transaction; provided, however, that employees of TCB or any TCB Subsidiary who
are retained by Volunteer after the Transaction shall have such offices and
titles as may be agreed upon between Volunteer and such employee.
ARTICLE SIX
TERMINATION
Section 6.1 Termination. This Agreement may be terminated at any
time prior to the Effective Time of the Transaction:
(a) By mutual written consent authorized by the boards of directors of
each of BancorpSouth and Wes-Tenn.
(b) By the board of directors of BancorpSouth, upon delivery of written
notice of termination to Wes-Tenn, if any event occurs, after giving Wes-Tenn
thirty days' written notice thereof and the opportunity to satisfy such
conditions, which renders impossible of satisfaction in any material respect
one or more of the conditions to the obligations of BancorpSouth to effect the
Transaction set forth in Section 5.3 hereof, and noncompliance is not waived by
BancorpSouth.
(c) By the board of directors of Wes-Tenn, upon delivery of written
notice of termination to BancorpSouth, if any event occurs, after giving
BancorpSouth thirty days' written notice thereof and the opportunity to satisfy
such conditions, which renders impossible of satisfaction in any material
respect one or more of the conditions to the obligations of Wes-Tenn to effect
the Transaction set forth in Section 5.2 hereof, and noncompliance is not
waived by Wes-Tenn.
(d) By the board of directors of BancorpSouth or the board of directors
of Wes-Tenn in the event (i) the Effective Time of the Transaction shall not
have occurred on or before March 31, 1996, subject to extension as provided in
Section 5.1(a) hereof; or (ii) any court of competent jurisdiction in the
United States or other federal or state governmental body shall have issued an
order, decree, or ruling or taken any other action restraining, enjoining, or
otherwise prohibiting the Transaction or other transactions contemplated
hereunder.
(e) As provided in Section 1.2 with respect to the respective rights of
the parties to terminate this Agreement upon a refusal to recompute the
Exchange Ratio.
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<PAGE> 50
Section 6.2 Effect of Termination.
If this Agreement is terminated pursuant to Section 6.1 hereof, all
further obligations of the parties hereto under this Agreement shall terminate
and the Transaction shall be abandoned, except that the provisions of this
Section 6.2 and Sections 2.10 (brokers), and 4.3(b) (confidential information)
hereof shall survive any such termination and abandonment of the Transaction
and such termination shall be without prejudice to the rights of any party to
seek damages or other remedies in respect of the breach of this Agreement.
(b) Notwithstanding the foregoing, in the event this Agreement is
terminated (i) by BancorpSouth pursuant to Section 6.1(b) hereof for failure to
satisfy the conditions set forth in Sections 5.3(a) and (b), or (ii) by
Wes-Tenn pursuant to Section 6.1(c) hereof for failure to satisfy the
conditions set forth in Sections 5.2(a) and (b), then the party terminating
this Agreement shall be entitled to reimbursement from the other party for the
costs and expenses (including fees and expenses of attorneys, auditors and
financial advisors) actually and reasonably incurred by it in connection with
this Agreement and the transactions contemplated hereby.
ARTICLE SEVEN
MISCELLANEOUS
Section 7.1 Boards of Directors. The parties hereto agree that, at
the Effective Time of the Transaction, the number of directors on Volunteer's
board of directors shall be increased by up to eight (8) persons.
BancorpSouth, as the sole shareholder of Volunteer, shall at such time have
these additional Volunteer directorships filled by the election of the
directors of Wes-Tenn whose names are set forth at Exhibit 7.1 hereto. The
former Wes-Tenn directors shall be elected by BancorpSouth to serve as
directors of Volunteer upon the same terms as other directors of Volunteer;
provided that BancorpSouth and Volunteer shall take such action as is necessary
to waive Volunteer's retirement age for a period of two (2) years with respect
to any former Wes-Tenn director who is sixty-four (64) years of age or older as
of the date of election to the Volunteer board. BancorpSouth agrees that,
after the Effective Time of the Transaction, a former Wes-Tenn director chosen
by BancorpSouth (after consultation with the former Wes-Tenn directors then
serving as directors of Volunteer) shall be nominated for a seat on the
BancorpSouth board of directors, in accordance with the normal nominating
procedure of BancorpSouth.
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<PAGE> 51
Section 7.2 Expenses. Each party shall bear and pay all costs and
expenses incurred by it or on its behalf in connection with the transactions
contemplated hereby, including the fees and expenses of its own financial or
other consultants, investment bankers, accountants, and counsel; provided,
however, that if the liabilities and expenses incurred or to be incurred by or
on behalf of Wes-Tenn for legal, investment banking, brokerage, or other
consultant services related to the Transaction (other than accounting services)
shall exceed $225,000 in the aggregate, then amount of such excess shall be
deducted from the Wes-Tenn Book Value and the Exchange Ratio shall be reduced
proportionately.
Section 7.3 Entire Agreement; Amendment. This Agreement, including
any Exhibits and Schedules hereto, constitutes the entire agreement among the
parties hereto with respect to the transactions contemplated hereby and
supersedes all prior oral or written agreements, commitments, or understandings
with respect to the matters provided for herein. No amendment, modification,
or discharge of this Agreement shall be valid or binding unless set forth in
writing and duly executed by the party against whom enforcement of the
amendment, modification, or discharge is sought; provided, however, that, after
approval by Wes-Tenn's shareholders, there can be no amendment which will
affect the rights of such shareholders.
Section 7.4 Waiver. No delay or failure on the part of any party
hereto to exercise any right, power, or privilege under this Agreement or under
any other instrument given in connection with or pursuant to this Agreement
shall impair any such right, power, or privilege or be construed as a waiver of
any default or as acquiescence therein. No single or partial exercise of any
such right, power, or privilege shall preclude the further exercise of any such
right, power, or privilege or the exercise of any other right, power, or
privilege. No waiver shall be valid against any party hereto unless made in
writing and signed by the party against whom enforcement of such waiver is
sought and then only to the extent expressly specified therein.
Section 7.5 Governing Law; Jurisdiction and Venue. This Agreement,
the rights and obligations of the parties hereto, and any claims or disputes
relating hereto, shall be governed by and construed in accordance with the laws
of the State of Tennessee as applied to contracts executed in and to be
performed in the State of Tennessee. By execution of this Agreement both
parties agree that they are subject to the jurisdiction of the courts of
Tennessee in any action brought relating to this Agreement, and that any such
action may be properly brought in the Chancery Court of Davidson County or
Shelby County, Tennessee.
Section 7.6 Governmental Agencies. All references herein to
various applicable governmental regulatory agencies shall be deemed
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<PAGE> 52
to include, to the extent required by law, any other such regulatory agency
that, by virtue of legislative change or any action permitted to a party
hereunder, properly assumes jurisdiction of any of the transactions
contemplated in this Agreement.
Section 7.7 Specific Performance. The parties recognize and hereby
acknowledge that it is impossible adequately to measure in money the damages
that would result to a party by reason of the failure of any of the parties to
perform any of the obligations imposed upon it by this Agreement. Accordingly,
if any party should institute an action or proceeding seeking specific
performance of the provisions hereof, each party against which such action or
proceeding is brought hereby waives the claim or defense that the party
instituting such action or proceeding has an adequate remedy at law and hereby
agrees not to assert in any such action or proceeding the claim or defense that
such a remedy at law exists.
Section 7.8 Notices. All notices, demands, requests, or other
communications that may be or are required to be given, served, or sent by any
party to any other party pursuant to this Agreement shall be in writing and
shall be hand delivered or mailed by registered or certified mail, return
receipt requested, postage prepaid, or transmitted by telegram, telex, or
facsimile transmission, addressed as follows:
(i) If to BancorpSouth to:
BancorpSouth, Inc.
One Mississippi Plaza
Tupelo, Mississippi 38801
Attention: Aubrey Burns Patterson
Chairman of the Board
Volunteer Bank
301 E. Main Street
Jackson, Tennessee 38301
Attention: Michael W. Weeks
with copies (which shall not constitute notice) to:
Frank A. Riley, Esq.
Riley, Ford, Caldwell & Cork
P.O. Box 1836
Tupelo, Mississippi 38802
Ralph W. Davis, Esq.
Waller Lansden Dortch & Davis
511 Union Street, Suite 2100
Nashville, Tennessee 37219-1760
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<PAGE> 53
(ii) If to Wes-Tenn to:
Wes-Tenn Bancorp, Inc.
200 West Washington
Covington, Tennessee 38019
Attention: Charles M. Ennis
President and CEO
with a copy (which shall not constitute notice) to:
Robert Walker, Esq.
Baker, Donelson, Bearman & Caldwell
165 Madison Avenue, Suite 2000
Memphis, Tennessee 38103
Each party may designate by notice in writing a new address to which any
notice, demand, request, or communication may thereafter be so given, served,
or sent. Each notice, demand, request, or communication sent by mail shall be
deemed to have been given two business days after the date of such mailing
(except that a notice of change of address shall not be deemed to have been
given until received by the addressee). Notices sent by telegram, telex,
facsimile transmission, or hand-delivery shall be deemed to have been given as
of the date received.
Section 7.9 No Third Party Beneficiaries. It is the explicit
intention of the parties hereto that no person or entity other than the parties
hereto is or shall be entitled to bring any action to enforce any provision of
this Agreement against any of the parties hereto, and the covenants,
undertakings, and agreements set forth in this Agreement shall be solely for
the benefit of, and shall be enforceable only by, the parties hereto or their
respective successors, legal representatives as permitted hereunder, and any
other persons or entities specifically designated herein.
Section 7.10 No Assignment. This Agreement may not be assigned by
either of the parties hereto, except as contemplated hereby and shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and legal representatives (whether by merger, operation
of law, or otherwise).
Section 7.11 Headings. Article and section headings contained in
this Agreement are inserted for convenience of reference only, shall not be
deemed to be a part of this Agreement for any purpose, and shall not in any way
define or affect the meaning, construction, or scope of any of the provisions
hereof.
Section 7.12 Termination of Representations and Warranties. Except
as otherwise provided in this Agreement, the representations
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<PAGE> 54
and warranties of the parties set forth in this Agreement or in certificates,
schedules, or other documents delivered pursuant hereto shall expire at, and be
terminated and extinguished at, the third anniversary of the Closing; provided,
however, that in the case of consummation of the Transaction, no representation
or warranty of Wes-Tenn provided for herein shall be deemed to be terminated or
extinguished so as to deprive BancorpSouth of any defense in law or equity that
it otherwise would have to any claim against it by any person, including,
without limitation, any shareholder or former shareholder of Wes-Tenn.
Section 7.13 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original instrument,
but all of which counterparts shall constitute one and the same Agreement.
ARTICLE 8
DEFINITIONS
Section 8.1 Defined Terms: Except as otherwise expressly provided
herein, the capitalized terms set forth below (in their singular and plural
forms, as applicable) shall have the following meanings:
"Applicable Environmental Laws" shall mean the federal, state, regional,
county, parish, municipal, and local environmental laws, regulations,
ordinances, rules and policies relating to the use, handling, treatment,
storage, transportation, disposal, emissions, discharges or releases of
Hazardous Substances, or otherwise relating to protection of the environment
(including, without limitation, ambient air, surface water, ground water, land
surface or subsurface strata), as the same may be amended or modified until the
Closing Date, including, without limitation, the following statutes: Federal
Resources Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901, et
seq.; Federal Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, 42 U.S.C. Section 9601, et seq.; Federal Clean Air Act, 42 U.S.C.
Section 7401, et seq.; Federal Water Pollution Control Act, Federal Clean
Water Act of 1977, 33 U.S.C. Section 1251, et seq.; Federal Insecticide,
Fungicide, and Rodenticide Act, Federal Pesticide Act of 1978, 7 U.S.C. Section
136, et seq.; Federal Hazardous Materials Transportation Act, 48 U.S.C. Section
1801, et seq.; Federal Toxic Substances Control Act, 15 U.S.C. Section 2601,
et seq.; Federal Safe Drinking Water Act, 42 U.S.C. Section 300f, et seq.
"BancorpSouth Subsidiaries" shall refer collectively to Volunteer, Bank
of Mississippi, and Laurel Federal Savings and Loan Association.
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<PAGE> 55
"Code" shall mean the Internal Revenue Code of 1986, as amended, and any
related rules and regulations.
"Environmental Condition" shall mean any Release, or the generation,
manufacture, refining, transportation, treatment, storage, handling, disposal,
transfer, production or processing of a Hazardous Substance in violation of any
Applicable Environmental Law.
"Environmental Notice" shall refer to any summons, citation, order,
proceeding, judgment, letter or other written communication from the Tennessee
Department of Environment and Conservation, any other federal, state or local
agency or authority, or any other entity, group, or individual, concerning any
intentional or unintentional act or omission that is alleged to have resulted
in an Environmental Condition or relating in any way to the Applicable
Environmental Laws or Hazardous Substances.
"Governing Documents" shall mean, each as amended, (i) with respect to
BancorpSouth, its Articles of Incorporation and bylaws, (ii) with respect to
Volunteer, Wes-Tenn, TCB, and each of the TCB Subsidiaries, their respective
Charters and bylaws.
"Hazardous Substances" shall mean any toxic or hazardous waste,
pollutants or substances, including, without limitations, asbestos, PCBs,
petroleum products and byproducts, substances defined or listed as "hazardous
substances", "hazardous waste", "toxic substances", or "toxic pollutant", in or
pursuant to the applicable Environmental Laws.
"Material Adverse Effect" shall mean the occurrence of any event,
circumstance, or condition, which, if determined adversely to the affected
party, would have a material adverse effect on the assets, business, employees,
revenue, income, condition (financial or otherwise), liabilities, net worth, or
results of operations of such party, provided however, that adverse
fluctuations in the market price for BancorpSouth Common Stock shall not be
considered an indication of a Material Adverse Effect.
"Regulatory Authorities" shall mean the SEC, the FRB, the FDIC, the TDFI,
and the Secretaries of State of the States of Tennessee and Mississippi.
"Release" shall mean the presence of, or releasing, placing, spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leeching, disposing or dumping of, any Hazardous Substances, whether
intentional or unintentional.
"Wes-Tenn CPA" shall mean the firm of independent, certified public accountants
for Wes-Tenn.
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<PAGE> 56
"TDFI" shall mean the Tennessee Department of Financial Institutions.
Section 8.2 Additional Defined Terms: The capitalized terms set forth
below (in their singular and plural forms, as applicable) shall have the
meanings set forth in the sections identified:
<TABLE>
<CAPTION>
Term Section
- ---- -------
<S> <C>
Act Preamble
Agreement Preamble
BancorpSouth Preamble
BancorpSouth Common Stock 1.1
BancorpSouth Financial Statement 3.5(a)
BancorpSouth Price 1.2(b)
BancorpSouth Shareholders' Meeting 1.5(b)
Bank Merger Preamble
BCA 1.2(d)
Closing 1.7
Closing Date 1.7
Code Preamble
Confidential Information 4.3(b)
Effective Time of the Transaction 1.8(a)
Eligible Wes-Tenn Shareholder 1.2(a)
ERISA 2.16
Exchange Act 2.19
Exchange Agent 1.3(a)
Exchange Ratio 1.2(a)
FDIA 2.12
FDIC 2.1
FRB 1.6
GAAP 1.2(b)
IRS 2.6(b)
Mailing Date 2.19
Parent Merger Preamble
Pension Plan 2.16
Proxy Statement 1.9(a)(ii)
Recalculated Price 1.2(c)
S-4 Registration Statement 1.9(a)(vii)
SEC 1.6
Securities Act 2.4(b)
Stock Event 1.2(a)
Surviving Corporation 1.1(a)
TCB Preamble
TCB Subsidiaries Preamble
TCF Preamble
Takeover Proposal 4.1(k)
Transaction Preamble
Volunteer Preamble
Wes-Tenn Preamble
Wes-Tenn Book Value 1.2(b)
</TABLE>
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<PAGE> 57
<TABLE>
<S> <C>
Wes-Tenn Common Stock 1.1(a)
Wes-Tenn Financial Statements 2.5(a)
Wes-Tenn Mortgage Preamble
Wes-Tenn Real Property 2.9(b)
Wes-Tenn Shareholders' Meeting 1.5
Wes-Tenn Tax Returns 2.6(a)
Wes-Tenn Taxes 2.6(d)
West Tennessee Life Preamble
</TABLE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on their behalf and in their name, on the day and year first
above written.
<TABLE>
<S> <C>
[CORPORATE SEAL] BANCORPSOUTH, INC.
ATTEST: By: /s/ Aubrey B. Patterson
---------------------------
Chairman of the Board
/s/ Cathy M. Robertson
- ----------------------
Secretary
[CORPORATE SEAL] WES-TENN BANCORP, INC.
ATTEST: By: /s/ Charles M. Ennis
---------------------------
President
/s/ Janeice Frisbee
- ----------------------
Secretary
</TABLE>
57
<PAGE> 58
Schedules and Exhibits
<TABLE>
<S> <C>
Schedule 2.1(a) States in Which Qualified as Foreign Corporation
Schedule 2.1(b) Organizational Documents
Schedule 2.7 Insurance
Schedule 2.8 Legal Proceedings
Schedule 2.13 Intellectual Property
Schedule 2.14 Material Contracts
Schedule 3.4 5% Shareholders; Options and Warrants; Voting Agreements
Schedule 3.6 Legal Proceedings
Schedule 3.10 Certain Changes or Events
Exhibit 4.12 Affiliate Letter
Exhibit 7.1 Directors of Wes-Tenn Bancorp, Inc.
</TABLE>
BancorpSouth agrees to furnish supplementally a copy of any omitted
schedule or exhibit to the Commission upon request.
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<PAGE> 1
EXHIBIT 99.1
NEWS RELEASE
BANCORPSOUTH, INC.
FOR RELEASE,
10 A.M. CENTRAL DAYLIGHT TIME,
FRIDAY, JUNE 16, 1995
Contact: L. Nash Allen, 601-680-2330
Harry R. Baxter, 601-680-2410
BancorpSouth, Inc., of Tupelo, MS, and Wes-Tenn Bancorp, Inc., of
Covington, TN, today announced a definitive agreement that will result in the
merger of the two bank holding companies.
The agreement signed today calls for exchanging 0.6296 shares of
BancorpSouth stock for each share of Wes-Tenn Bancorp stock. Based on the
average price of BancorpSouth stock for the most recent 20 trading days, the
value of the transaction is $61.3 million.
Wes-Tenn Bancorp, Inc., is a one-bank holding company whose principal
subsidiary is the $337-million asset Tennessee Community Bank, headquartered in
Covington. BancorpSouth is a $2.8 billion asset, multi-state, bank and savings
and loan holding company whose principal subsidiaries include the $435 million
asset Volunteer Bank of Jackson, TN, the $2.2 billion asset Bank of
Mississippi, also headquartered in Tupelo, and the $190 million asset Laurel
Federal Savings and Loan Association, headquartered in Laurel, MS.
Tennessee Community Bank and Volunteer Bank will merge, resulting in
Volunteer Bank expanding to serve a total of 15 West Tennessee communities from
approximately 30 banking locations. Communities to be served by the merged
banks include Alamo, Brownsville, Covington, Dresden, Henning, Humboldt,
Jackson, Michie, Milan, Millington, Pickwick, Ridgely, Selmer, Somerville and
Trenton. In addition, the bank will operate TC Finance, Inc., a personal
finance company with offices in Covington, McKenzie, Trenton and Waverly, and
West Tennessee Life Insurance Company, a credit life insurer.
The merger with Wes-Tenn Bancorp will be BancorpSouth's third
business combination with a Tennessee banking company. In August 1992,
BancorpSouth merged with Volunteer Bancshares, Inc., and earlier this year
announced the acquisition of substantially all of the assets and the assumption
of certain liabilities of The Shelby Bank located in Bartlett.
<PAGE> 2
BancorpSouth Chairman and Chief Executive Officer Aubrey B. Patterson
said, "We are excited about the opportunity for BancorpSouth to expand in West
Tennessee. With Volunteer Bank, The Shelby Bank and the 15 offices of
Tennessee Community Bank, we will be in an extremely strong marketing position
to bring our story of comprehensive banking services to all of West Tennessee.
"Our focus on community bank management and local economic
development is very akin to what we see in Tennessee Community Bank. Both
Volunteer Bank and Tennessee Community Bank bring great strength to this
combined entity," Patterson added.
Patterson concluded, "I am particularly pleased that two experienced
bankers, Charles Ennis and Don Stephens, will be affiliated with our company.
They bring a wealth of experience and management talent to our bank."
Volunteer Bank Chairman and Chief Executive Officer Mike Weeks said,
"We are extremely pleased to have the opportunity to merge with Tennessee
Community Bank. They are an exceptionally fine bank, and we share a common
community bank operating philosophy. Our staffs, our services and banks will
meld quickly to become a dominant financial force dedicated to the development
of West Tennessee."
Tennessee Community Bank President and Chief Executive Officer
Charles Ennis said, "This merger is an opportunity for Tennessee Community Bank
and our fine staff to make an even greater contribution to the people and the
communities we serve. We were only interested in a merger that would provide
us with a greater capacity to serve the people who have made our bank
successful."
The merger must be approved by the shareholders of Wes-Tenn Bancorp,
in addition to regulatory authorities. Bank officials estimate the approval
process will take approximately six months.
###
<PAGE> 1
EXHIBIT 99.2
PRESS RELEASE OF WES-TENN BANCORP, INC.
June 16, 1995
BancorpSouth, Inc. of Tupelo, MS, and Wes-Tenn Bancorp, Inc. of
Covington, TN today announced a definitive agreement that will result in the
merger of the two bank holding companies.
The agreement signed today calls for exchanging .6296 shares of
BancorpSouth stock for each share of Wes-Tenn Bancorp stock in the transaction
valued at $61.3 million.
Wes-Tenn Bancorp, Inc. is a one-bank holding company whose principal
subsidiary is the $337-million asset Tennessee Community Bank headquartered in
Covington. Tennessee Community Bank has offices in 11 West Tennessee
communities including Alamo, Brownsville, Covington, Dresden, Henning,
Humboldt, Millington, Pickwick, Ridgely, Selmer and Somerville. In addition,
the bank owns TC Finance, Inc, a personal finance company with offices in
Covington, McKenzie, Trenton and Waverly and Wes-Tenn Life Insurance Company.
BancorpSouth is a multi-bank holding company whose principal
subsidiaries include the $435 million asset Volunteer Bank of Jackson, TN and
the $2.2 billion asset Bank of Mississippi, headquartered in Tupelo and the
$190 million asset Laurel Federal Savings and Loan Association.
Tennessee Community Bank and Volunteer Bank will merge, resulting in
Volunteer Bank expanding to serve 17 West Tennessee communities from
approximately 30 banking locations. The combined Volunteer Bank will have
approximately $800 million of assets and will be the largest financial
institution in West Tennessee outside of Shelby County.
Tennessee Community Bank President and Chief Executive Officer Charles
Ennis said "This merger is an opportunity for Tennessee Community Bank and our
fine staff to make an even greater contribution to the people and the
communities we serve. We were only interested in a merger that would provide
us with a greater capacity to serve the people who have made our bank
successful.
BancorpSouth Chairman and Chief Executive Officer Aubrey B. Patterson
said "We are excited about the opportunity for BancorpSouth to expand in West
Tennessee. Volunteer Bank will be adding 15 offices in 11 counties and will be
in an extremely strong marketing position to bring our story of comprehensive
banking services to all of West Tennessee."
"Our focus on community bank management and local economic development
is very similar to that of Tennessee Community Bank. Both Volunteer Bank and
Tennessee Community Bank bring great strength to this combined entity,"
Patterson added.
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Patterson concluded "I am particularly pleased to have Charles Ennis
and Don Stephens, two experienced bankers, affiliated with our company. They
bring a great wealth of experience and management talent to our bank."
Volunteer Bank Chairman and Chief Executive Officer Mike Weeks said
"We are extremely pleased to have the opportunity to merge with Tennessee
Community Bank. This is an exceptionally fine bank, and we share a common
service and operating philosophy. Our staffs, our services and banks will meld
quickly to become a stronger financial force dedicated to the development of
West Tennessee."
The merger must be approved by the shareholders of Wes-Tenn Bancorp,
Inc. in addition to regulatory authorities. Bank officials estimate the
approval process will take approximately 5 months.
