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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 23, 1999
REGISTRATION NO. 333-28081
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 5
ON FORM S-3
TO
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933*
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BANCORPSOUTH, INC.
(Exact Name of Registrant as Specified in Its Charter)
MISSISSIPPI
(State or Other Jurisdiction of
Incorporation or Organization)
64-0659571
(I.R.S. Employer Identification Number)
ONE MISSISSIPPI PLAZA
TUPELO, MISSISSIPPI 38801
(601) 680-2000
(Address, Including Zip Code, and Telephone Number, including
Area Code, of Registrant's Principal Executive Offices)
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AUBREY B. PATTERSON
BANCORPSOUTH, INC.
ONE MISSISSIPPI PLAZA
TUPELO, MISSISSIPPI 38801
(601) 680-2000
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
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Copies of communications to:
HOWARD W. HERNDON, ESQ.
WALLER LANSDEN DORTCH & DAVIS, PLLC
2100 NASHVILLE CITY CENTER
511 UNION STREET
NASHVILLE, TENNESSEE 37219-1760
(615) 244-6380
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Approximate date of commencement of proposed sale to the public: As
soon as possible after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, check the following box.[ ]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this form is used to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] ________
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ] _______
If delivery of the Prospectus is expected to be made pursuant to Rule
434, please check the following box.
*Filed as a Post-Effective Amendment on Form S-3 to such Registration Statement
on Form S-4 pursuant to Rule 401(e) under the Securities Act of 1933. See
"Explanatory Note."
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EXPLANATORY NOTE
BancorpSouth, Inc.'s "shelf" Registration Statement on Form S-4
(Registration No. 333-28081) was declared effective by the Securities and
Exchange Commission on July 25, 1997. The Registration Statement relates to an
aggregate of 15,000,000 shares of BancorpSouth common stock that may be issued
from time to time in connection with BancorpSouth's acquisition of, or business
combination with, other financial institutions. BancorpSouth has previously
filed four Post-Effective Amendments to the Registration Statement, each of
which included a Prospectus Supplement/Proxy Statement for a particular merger.
In connection with its business combinations, BancorpSouth has assumed,
and may in the future assume, an acquired company's obligations under
outstanding options to purchase shares of the acquired company's capital stock.
These options have been or will be converted, pursuant to the business
combination, into options to purchase shares of BancorpSouth common stock.
Certain of these options may be held by individuals who are not employees or
directors of the acquired company and, accordingly, these options would not be
eligible for registration under a Registration Statement on Form S-8. This
Post-Effective Amendment No. 5 on Form S-3 amends the Registration Statement on
Form S-4 to register up to 235,000 shares of BancorpSouth common stock that may
be issued from time to time upon exercise of options that may be held by former
employees or directors of acquired companies.
The registration fee for the shares of BancorpSouth common stock
covered by this Post-Effective Amendment was paid in connection with the
original filing of the Registration Statement on Form S-4.
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PROSPECTUS
235,000 SHARES
BANCORPSOUTH
COMMON STOCK
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This prospectus relates to the issuance by BancorpSouth, Inc. of up to
a total of 235,000 shares of its common stock, upon the exercise of stock
options granted under BancorpSouth's 1998 Stock Option Plan.
BancorpSouth common stock is listed on the New York Stock Exchange
under the symbol "BXS."
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSIONER HAS APPROVED OR DISAPPROVED OF THE SHARES OF BANCORPSOUTH COMMON
STOCK TO BE ISSUED UNDER THIS PROSPECTUS OR DETERMINED IF THIS PROSPECTUS IS
TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------
SHARES OF BANCORPSOUTH COMMON STOCK ARE NOT SAVINGS OR DEPOSIT ACCOUNTS
AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
---------------
The date of this Prospectus is February __, 1999
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TABLE OF CONTENTS
<TABLE>
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Page
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The Company.......................................................................................................3
Plan of Distribution..............................................................................................4
Use of Proceeds...................................................................................................4
Description of the Plan...........................................................................................5
The Plan.................................................................................................5
Terms of Options.........................................................................................5
Federal Income Tax Information...........................................................................7
Where You Can Find More Information...............................................................................7
Legal Matters.....................................................................................................9
Experts...........................................................................................................9
</TABLE>
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THE COMPANY
BancorpSouth, Inc. is incorporated in Mississippi and is a registered
bank holding company under the Bank Holding Company Act of 1956. BancorpSouth
conducts its operations through its subsidiary, BancorpSouth Bank, and its
banking-related subsidiaries. BancorpSouth Bank conducts a commercial banking
and trust business through, as of December 31, 1998, 157 offices in 77
municipalities or communities in 50 counties throughout Mississippi, west
Tennessee and portions of Alabama. BancorpSouth Bank has operated under the
trade names "Bank of Mississippi" in Mississippi and "Volunteer Bank" in
Tennessee, and recently began operating all of its branches under the name
"BancorpSouth Bank." In addition, BancorpSouth Bank operates consumer finance,
credit life insurance and insurance agency subsidiaries. As of September 30,
1998, BancorpSouth and its subsidiaries had total assets of about $4.36 billion,
deposits of about $3.69 billion and shareholders' equity of about $389.1
million. These amounts do not reflect three recent mergers of bank holding
companies into BancorpSouth, each of which was accounted for as a pooling of
interests. These mergers are described in this section below.
BancorpSouth Bank provides a range of financial services to individuals
and small-to-medium size businesses. Various types of checking accounts, both
interest bearing and non-interest bearing, are available. Savings accounts and
certificates of deposit with a range of maturities and interest rates are
available to meet the needs of customers. Other services include safe deposit
and night depository facilities. Limited 24-hour banking with automated teller
machines is provided in most of its principal markets. BancorpSouth Bank is an
issuing bank for MasterCard, and overdraft protection is available to approved
MasterCard holders maintaining checking accounts with BancorpSouth Bank.
BancorpSouth Bank offers a variety of services through its trust department,
including personal trust and estate services, certain employee benefit accounts
and plans, including individual retirement accounts, and limited corporate trust
functions.
BancorpSouth Bank's lending activities include both commercial and
consumer loans. Loan originations are derived from a number of sources including
real estate broker referrals, mortgage loan companies, direct solicitation by
BancorpSouth Bank's loan officers, present savers and borrowers, builders,
attorneys, walk-in customers and, in some instances, other lenders. BancorpSouth
Bank has established disciplined and systematic procedures for approving and
monitoring loans that vary depending on the size and nature of the loan.
On October 30, 1998, Alabama Bancorp., Inc., a bank holding company
based in Birmingham, Alabama, merged into BancorpSouth. In connection with that
merger, Highland Bank and First Community Bank of The South (which were
subsidiaries of Alabama Bancorp., Inc.) merged into BancorpSouth Bank. Highland
Bank operated seven banking locations in the metropolitan Birmingham, Alabama
area and First Community Bank operated four banking locations in the Fort
Deposit, Alabama area. As of September 30, 1998, Alabama Bancorp., Inc. and its
subsidiaries had total assets of about $275.4 million and total deposits of
about $243.3 million.
On December 4, 1998, Merchants Capital Corporation, a bank holding
company based in Vicksburg, Mississippi, merged into BancorpSouth. In connection
with that merger, Merchants Bank (a wholly-owned subsidiary of Merchants Capital
Corporation)
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merged into BancorpSouth Bank. Merchants Bank operated six banking locations in
the Vicksburg, Mississippi area and a loan production office in Jackson,
Mississippi. As of September 30, 1998, Merchants Capital Corporation and its
subsidiaries had total assets of about $211.4 million and total deposits of
about $173.5 million.
On December 31, 1998, The First Corporation, a bank holding company
based in Opelika, Alabama, merged into BancorpSouth, and The First National Bank
of Opelika (a wholly-owned subsidiary of The First Corporation) merged into
BancorpSouth Bank. The First National Bank of Opelika operated two banking
locations in Opelika, Alabama and one banking location in Auburn, Alabama. As of
September 30, 1998, The First Corporation and its subsidiary had total assets of
about $143.4 million and total deposits of about $121.5 million.
BancorpSouth's principal office is located at One Mississippi Plaza,
Tupelo, Mississippi, 38801 and its telephone number is (601) 680-2000.
PLAN OF DISTRIBUTION
BancorpSouth intends to issue shares of BancorpSouth common stock
pursuant to this Prospectus in connection with the exercise of stock options
granted by BancorpSouth under the BancorpSouth, Inc. 1998 Stock Option Plan (the
"Plan"). BancorpSouth will be responsible for the expenses of such issuance,
other than the exercise price of the options. No commissions, discounts,
concessions or other compensation will be paid to any underwriter or
broker-dealer in connection with such issuance.
The shares of BancorpSouth common stock issued under this Prospectus
and any supplement to this Prospectus may be reoffered by the holders of these
shares from time to time. These transactions may be effected in the
over-the-counter market, in negotiated transactions, through the writing of
options on the shares of BancorpSouth common stock, or a combination of such
methods of sale. The purchase price paid in these transactions may be fixed
prices which may be changed, market prices prevailing at the time of sale,
prices relating to the prevailing market prices or negotiated prices. The
selling stockholders of these shares of BancorpSouth common stock may effect
these transactions by selling their shares of BancorpSouth common stock to or
through broker-dealers. These broker-dealers may receive compensation in the
form of discounts, concessions or commissions from the selling stockholders or
the purchasers of shares from whom such broker-dealer may act as agent or to
whom they may sell as principal or both.
USE OF PROCEEDS
Upon the exercise of options granted under the Plan, BancorpSouth will
receive the exercise price of these options. The exercise price of each of these
options is determined on the date the option is granted under the Plan and,
accordingly, may vary between options granted under the Plan. BancorpSouth
intends to use the proceeds from these option exercises for working capital and
general corporate purposes. BancorpSouth will not receive any of the proceeds
from the resale of any shares of BancorpSouth common stock issued upon exercise
of these options or otherwise under this Prospectus.
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DESCRIPTION OF THE PLAN
THE PLAN
The Plan was established on November 24, 1998 by BancorpSouth in order
to provide options to purchase shares of BancorpSouth common stock to certain
individuals who were employees or directors of organizations which are, or have
been, merged into or acquired by BancorpSouth. Officers and directors of
BancorpSouth are ineligible to receive options under the Plan. Options to
purchase up to an aggregate of 235,000 shares of BancorpSouth common stock may
be granted under the Plan. This number is to be adjusted for any change in the
outstanding shares of BancorpSouth common stock by reason of a BancorpSouth
common stock dividend, combination, recapitalization or reclassification.
BancorpSouth common stock that is allocated to an option under the Plan that
terminates for any reason cannot be used for new options.
The Plan is administered and managed by a committee appointed by
BancorpSouth's Board of Directors. The committee acts in a managerial capacity
with respect to the Plan. BancorpSouth's Board of Directors may amend or
terminate the Plan at any time. However, the shareholders of BancorpSouth must
approve any amendment that allows directors or officers of BancorpSouth to
participate in the Plan. The Plan is not subject to the provisions of the
Employee Retirement Income Security Act of 1974 and is not qualified under
Section 401(a) of the Internal Revenue Code.
TERMS OF OPTIONS
General. The holder of an option granted under the Plan is entitled to
purchase shares of BancorpSouth common stock from BancorpSouth by payment of the
per share exercise price stated in the option. Each option is subject to the
terms and conditions stated in the Plan and in the relevant option agreement.
For options that are granted to replace options held immediately prior to a
merger between a predecessor organization and BancorpSouth, the number of shares
of BancorpSouth common stock that can be acquired is calculated based upon the
number of shares that may be purchased under the replaced option and the
exchange ratio of the transaction with BancorpSouth.
Option Exercise Price. Generally, the exercise price of an option
granted under the Plan to replace a prior option is equivalent to the exercise
price of the prior option. This price is calculated by reference to the exchange
ratio of shares of BancorpSouth common stock for shares of the predecessor
organization capital stock in the applicable merger or similar transaction. The
exercise price of an incentive stock option, as qualified under Section 422 of
the Internal Revenue Code, must be at least 100% of the fair market value of
BancorpSouth common stock on the date of grant (110% for employees who are 10%
shareholders).
Limitations on Incentive Options. Incentive stock options under the Plan
can only be granted to individuals who are employees of BancorpSouth. The value
of the shares subject to an incentive stock option that can be acquired for the
first time in a calendar year cannot exceed $100,000, based on the fair market
value of BancorpSouth common stock on the date of grant. Any option or portion
thereof that is granted in excess of this limit will be treated as a
nonqualified stock option.
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The value of the shares subject to an incentive stock option that can
be acquired for the first time in a calendar year cannot exceed $100,000, based
on the fair market value of BancorpSouth common stock on the date of grant.
Grants in excess of this limit will be treated as having been made under a
nonqualified stock option. This limit is applied under the Plan by reference to
the option granted by the predecessor organization (that is, the option replaced
by an option under the Plan) and the fair market value of that organization's
common stock on the grant date. For incentive stock options that are issued in
replacement of prior incentive stock options, these limitations are applied at
the time that the original option was issued.
Time and Method of Exercise. Options granted under the Plan may be
exercised at any time prior to the applicable date of termination set forth in
the applicable option agreement and the Plan. Individuals may exercise options
by notifying BancorpSouth in writing and tendering payment of the exercise price
in a form that is acceptable to the Plan committee. Amounts received by
BancorpSouth upon the exercise of an option are used for general corporate
purposes. BancorpSouth is required to withhold and pay to the Internal Revenue
Service appropriate income and other taxes upon the exercise of a nonqualified
stock option by an employee of BancorpSouth or its affiliates.
An option may generally be exercised with the assistance of a broker,
which may extend credit to an individual in connection with the exercise in a
manner described under Regulation T of the Securities and Exchange Commission
(the "SEC").
Delivery of BancorpSouth Common Stock. Only whole shares of
BancorpSouth common stock will be issued under the Plan. BancorpSouth or its
transfer agent will deliver newly issued shares of BancorpSouth common stock as
soon as administratively feasible after exercise of an option. No fees or
commissions are charged by BancorpSouth for the issuance of Bancorpsouth common
stock under the Plan.
Termination of Options. Any rights to acquire BancorpSouth common stock
under the Plan are forfeited on the date on which an option terminates. Except
as otherwise stated in an individual's option agreement, nonqualified stock
options and incentive stock options terminate three months after the date that
an individual ceases to be employed by BancorpSouth or any affiliate for any
reason other than death or total disability, unless by its terms the option
sooner terminates or expires. If employment terminates due to death or
disability, the option will terminate at the end of the 12-month period
following such termination (unless by its terms it sooner terminates or
expires).
Transferability. Options granted to an individual under the Plan are
not transferable or assignable, except for transfers by will or the laws of
descent and distribution and, during the individual's lifetime, are exercisable
only by the individual to whom BancorpSouth granted the option.
Liens. The Plan makes no provision for the creation of a lien with
regard to any option under the Plan or BancorpSouth common stock acquired
thereunder.
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FEDERAL INCOME TAX INFORMATION
Generally, an individual will not recognize income on the grant of an
option under the Plan. Tax treatment thereafter depends upon the type of option
involved and the amount of time it has been held:
Incentive Stock Options: Generally, an individual is not subject to tax
on the exercise of an incentive stock option. However, the exercise of an
incentive stock option gives rise to a preference under the federal Alternate
Minimum Tax ("AMT") rules. AMT preferences that exceed limits specified in the
Internal Revenue Code can result in AMT liability in some situations. Otherwise,
taxation is postponed until the individual sells BancorpSouth common stock
acquired through an incentive stock option, provided that the individual holds
the stock for at least two years after the option is granted and one year after
the date of exercise. The individual will be subject to capital gains tax on the
difference between the price paid to exercise the incentive stock option and the
fair market value of the BancorpSouth common stock at the time it is sold. For
incentive stock options exercised after December 31, 2000, a lower capital gains
rate will generally apply if the stock is held for at least five years. However,
if the stock is sold before the end of the mandatory holding period for
incentive stock options, the sale is treated as a "disqualifying disposition"
and the individual is taxed at ordinary income rates on the difference between
the exercise price of the option and the fair market value of BancorpSouth
common stock at the time of sale.
Nonqualified Stock Option: Generally an individual will be taxed at the
time he or she exercises a nonqualified stock option on the difference between
the exercise price and the fair market value of the BancorpSouth common stock at
the time of exercise. This difference is taxed as ordinary compensation income,
and BancorpSouth is obligated to withhold income taxes on this amount of income.
The individual's tax basis in stock acquired through a nonqualified stock option
is the exercise price plus the amount of taxable income that he recognized. Any
gain on the sale of stock acquired through a nonqualified stock option is
subject to capital gains tax treatment. Reduced capital gains rates apply if the
stock is held for at least 12 months after exercise. For nonqualified stock
options exercised after December 31, 2000, a further rate reduction applies if
the stock is held for five years.
BancorpSouth is entitled to a tax deduction on the amount of ordinary
income that the individual recognizes on the exercise of a nonqualified stock
option, or upon the disqualifying disposition of stock acquired through an
incentive stock option. BancorpSouth does not obtain a tax deduction upon the
grant of an option or the exercise of an incentive stock option.
WHERE YOU CAN FIND MORE INFORMATION
BancorpSouth has filed with the SEC under the Securities Act of 1933 a
Registration Statement on Form S-4 and a Post-Effective Amendment No. 5 on Form
S-4 to that Registration Statement. The Registration Statement and
Post-Effective Amendment, including the attached exhibits and schedules, contain
additional relevant information about BancorpSouth and the BancorpSouth common
stock. The rules and regulations of the SEC allow BancorpSouth to omit certain
information included in the Registration Statement and Post-Effective Amendment
from this Prospectus.
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In addition, BancorpSouth files reports, proxy statements and other
information with the SEC under the Securities Exchange Act of 1934, as amended.
You may read and copy this information at the following locations of the SEC:
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Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center
Room 1024 Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, New York 10048 Suite 1400
Chicago, Illinois 60661-2511
</TABLE>
You may also obtain copies of this information by mail from the Public
Reference Section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, at prescribed rates. You may obtain information on the operation of
the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC also
maintains an Internet world wide web site that contains reports, proxy
statements and other information about issuers, like BancorpSouth, which file
electronically with the SEC. The address of that site is http://www.sec.gov. You
can also inspect reports, proxy statements and other information about
BancorpSouth at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
The SEC allows BancorpSouth to "incorporate by reference" information
into this Prospectus from documents that BancorpSouth has previously filed with
the SEC. This means that BancorpSouth can disclose important information to you
by referring you to another document filed separately with the SEC. These
documents contain important information about BancorpSouth and its financial
condition. The information incorporated by reference is considered to be a part
of this Prospectus, except for any information that is superseded by other
information that is set forth directly in this document.
This Prospectus incorporates by reference the following documents with
respect to BancorpSouth:
1. BancorpSouth's Annual Report on Form 10-K for the year ended
December 31, 1997;
2. BancorpSouth's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998;
3. BancorpSouth's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1998;
4. BancorpSouth's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998;
5. BancorpSouth's Current Report on Form 8-K dated May 18, 1998;
6. BancorpSouth's Current Report on Form 8-K dated July 10, 1998;
7. BancorpSouth's Current Report on Form 8-K dated September 3,
1998;
8. BancorpSouth's Current Report on Form 8-K dated January 6,
1998;
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9. The description of BancorpSouth common stock contained in
BancorpSouth's Registration Statement on Form 8-A dated May
14, 1997; and
10. The description of BancorpSouth Rights contained in
BancorpSouth's Registration Statement on Form 8-A dated May
14, 1997.
BancorpSouth incorporates by reference additional documents that
BancorpSouth may file with the SEC between the date of this Prospectus and the
date on which this offering is terminated. These documents include periodic
reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and
Current Reports on Form 8-K, as well as proxy statements.
You can obtain copies of the documents incorporated by reference in
this Prospectus with respect to BancorpSouth without charge, excluding any
exhibits to those documents unless the exhibit is specifically incorporated by
reference as an exhibit in this Prospectus, by requesting them in writing or by
telephone from BancorpSouth at the following:
BancorpSouth, Inc.
One Mississippi Plaza
Tupelo, Mississippi 38801
(601) 680-2000
Attention: Secretary.
You should rely only on the information contained in or incorporated by
reference in this Prospectus in considering whether or not to invest in the
securities described in this document. BancorpSouth has not authorized anyone to
provide you with information that is different from the information in this
document. This Prospectus is dated February 23, 1999. You should not assume that
the information contained in this document is accurate as of any date other than
that date. Neither the delivery of this Prospectus nor the issuance of
BancorpSouth common stock under this Prospectus shall create any implication to
the contrary.
LEGAL MATTERS
Riley, Ford, Caldwell & Cork, P.A., Tupelo, Mississippi, counsel to
BancorpSouth, will pass upon the validity of the shares of BancorpSouth common
stock to be issued under this Prospectus.
EXPERTS
The Consolidated Financial Statements of BancorpSouth as of December
31, 1997 and 1996, and for each of the years in the three-year period ended
December 31, 1997, have been incorporated by reference in this Prospectus and in
the Registration Statement in reliance upon the report of KPMG LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of such firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses of this offering, which are to be paid by BancorpSouth,
are estimated as follows:
<TABLE>
<S> <C>
Commission Registration Fee ........................................................................... $1,037
Legal Fees and Expenses ............................................................................... 1,500
Accountants' Fees and Expenses ........................................................................ 1,500
Transfer Agent and Registrar Fees ..................................................................... 500
Miscellaneous Expenses ................................................................................ 500
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Total ........................................................................................ $5,037
======
</TABLE>
* Previously paid in connection with filing of Registration Statement on
Form S-4 (Reg. No. 333-28081)
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
A. Restated Articles of Incorporation and Bylaws.
BancorpSouth's Restated Articles of Incorporation provide that it will
indemnify, and upon request advance expenses to, any person (or his estate) who
was or is a party to any legal proceeding because he is or was a director,
officer or employee of BancorpSouth, or is or was serving at the request of
BancorpSouth as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, or other entity, against any liability
incurred in that proceeding (A) to the full extent permitted by the Mississippi
Business Corporation Act ("MBCA"), and (B) despite the fact that such person did
not meet the standard of conduct specified in the MBCA or would be disqualified
for indemnification under the MBCA, if a determination is made that (i) the
person seeking indemnity is fairly and reasonably entitled to indemnification in
view of all of the relevant circumstances, and (ii) his acts or omissions did
not constitute gross negligence or willful misconduct. A request for
reimbursement or advancement of expenses prior to final disposition of the
proceeding must be accompanied by an undertaking to repay the advances if it is
ultimately determined that he did not meet the requisite standard of conduct but
it need not be accompanied by an affirmation that the person seeking indemnity
believed he has met the standard of conduct.
BancorpSouth's Bylaws provide that it will indemnify officers and
directors who are a party to any legal proceeding because he is or was an
officer or director of BancorpSouth against any expenses or awards in connection
therewith if he acted in good faith and in a manner he reasonably believed to be
in the best interest of BancorpSouth and, with respect to any criminal
proceeding, had no reasonable cause to believe his conduct was unlawful.
BancorpSouth also will indemnify officers and directors who are a party to any
derivative suit with respect to BancorpSouth because that person is or was an
officer or director of
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BancorpSouth, against expenses incurred in connection with that action unless he
is found to have acted without good faith and without that degree of care,
diligence and skill which ordinarily prudent men would exercise in similar
circumstances and in like positions, unless, despite such finding of liability,
the court determines that he is entitled to indemnity. The Bylaws also provide
that BancorpSouth may (i) advance to the officer or director the expenses
incurred in defending a proceeding upon receipt of an undertaking that he will
repay amounts advanced unless it ultimately is determined that he is entitled to
be indemnified, and (ii) purchase and maintain insurance on behalf of an officer
or director against any liability arising out of his acting as such.
B. Mississippi Business Corporation Act.
In addition to the foregoing provisions of BancorpSouth's Restated
Articles of Incorporation and Bylaws, directors, officers, employees and agents
of BancorpSouth and its subsidiaries may be indemnified by BancorpSouth pursuant
to Sections 79-4-8.50 through 79-4-8.58 of the MBCA.
C. Insurance.
BancorpSouth maintains and pays premiums on an insurance policy on
behalf of its officers and directors against liability asserted against or
incurred by such persons in or arising from their capacity as such.
D. SEC Policy On Indemnification.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling
BancorpSouth pursuant to the foregoing provisions, BancorpSouth has been
informed that in the opinion of the SEC such indemnification is against public
policy as expressed in the Securities Act of 1933 and is therefore
unenforceable.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
Exhibit
Number Description of Exhibits
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3.1 -- Restated Articles of Incorporation of the Registrant (1)
3.2 -- Amendment to Articles of Incorporation of the Registrant,
as filed on May 4, 1994 (1)
5.1 -- Opinion of Riley, Ford, Caldwell & Cork, P.A.
11.1 -- Statement re computation of earnings per share (2)
21.1 -- List of subsidiaries of the Registrant (2)
23.1 -- Consent of KPMG LLP
23.2 -- Consent of Riley, Ford, Caldwell & Cork, P.A. (included in
opinion filed as Exhibit 5.1)
24.1 -- Power of Attorney (included on page II-5)
99.1 -- BancorpSouth, Inc. 1998 Stock Option Plan
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<PAGE> 14
----------------
(1) Incorporated by reference to exhibits filed with the
Registrant's Registration Statement on Form S-4, filed on
January 5, 1995.
(2) Incorporated by reference to the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1997.
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant, pursuant to the foregoing provisions or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted against the
Registrant by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement
II-3
<PAGE> 15
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-4
<PAGE> 16
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this
Post-Effective Amendment to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Tupelo, State of Mississippi, on
February 22, 1999.
BANCORPSOUTH, INC.
By: /s/ Aubrey B. Patterson
----------------------------------------
Aubrey B. Patterson
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Aubrey B. Patterson and L. Nash Allen,
Jr., and each of them, his true and lawful attorney-in-fact, as agent and with
full power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacity, to sign any or all amendments to this
Post-Effective Amendment and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agents in full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully and to all intents and purposes
as they might or be in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
- ---- ----- ----
<S> <C> <C>
/s/ Aubrey B. Patterson Chairman of the Board, Chief February 22, 1999
- ----------------------------------------- Executive Officer, Director
Aubrey B. Patterson (principal executive officer)
/s/ L. Nash Allen, Jr. Treasurer and Chief Financial Officer February 22, 1999
- ----------------------------------------- (principal financial and accounting
L. Nash Allen, Jr. officer)
/s/ Shed H. Davis Director February 22, 1999
- -----------------------------------------
Shed H. Davis
</TABLE>
II-5
<PAGE> 17
<TABLE>
<S> <C> <C>
/s/ Hassell H. Franklin Director February 22, 1999
- -----------------------------------------
Hassell H. Franklin
/s/ Fletcher H. Goode, M.D. Director February 22, 1999
- -----------------------------------------
Fletcher H. Goode, M.D.
/s/ W. G. Holliman, Jr. Director February 22, 1999
- -----------------------------------------
W. G. Holliman, Jr.
/s/ A. Douglas Jumper Director February 22, 1999
- -----------------------------------------
A. Douglas Jumper
/s/ Turner O. Lashlee Director February 22, 1999
- -----------------------------------------
Turner O. Lashlee
/s/ Alan W. Perry Director February 22, 1999
- -----------------------------------------
Alan W. Perry
/s/ Travis E. Staub Director February 22, 1999
- -----------------------------------------
Travis E. Staub
/s/ Dr. Andrew R. Townes Director February 22, 1999
- -----------------------------------------
Dr. Andrew R. Townes
/s/ Lowery A. Woodall Director February 22, 1999
- -----------------------------------------
Lowery A. Woodall
</TABLE>
II-6
<PAGE> 18
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
3.1 -- Restated Articles of Incorporation of the Registrant (1)
3.2 -- Amendment to Articles of Incorporation of the Registrant, as
filed on May 4, 1994 (1)
5.1 -- Opinion of Riley, Ford, Caldwell & Cork, P.A.
11.1 -- Statement re computation of earnings per share (2)
21.1 -- List of subsidiaries of the Registrant (2)
23.1 -- Consent of KPMG LLP
23.2 -- Consent of Riley, Ford, Caldwell & Cork, P.A. (included in
opinion filed as Exhibit 5.1)
24.1 -- Power of Attorney (included on page II-5)
99.1 -- BancorpSouth, Inc. 1998 Stock Option Plan
----------------
(1) Incorporated by reference to exhibits filed with the Registrant's
Registration Statement on Form S-4, filed on January 5, 1995.
(2) Incorporated by reference to the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1997.
<PAGE> 1
EXHIBIT 5.1
[LETTERHEAD OF RILEY, FORD, CALDWELL & CORK, P.A.]
January 26, 1999
Board of Directors
BancorpSouth, Inc.
One Mississippi Plaza
Tupelo, Mississippi 38801
Re: Post-Effective Amendment No. 5 on Form S-3 to Registration
Statement on Form S-4 (Reg. No. 333-28081)
Ladies and Gentlemen:
We are acting as counsel to BancorpSouth, Inc., a Mississippi
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of 235,000 shares of common
stock (the "Shares"), $2.50 par value per share, of the Company, pursuant to the
above-captioned Post-Effective Amendment No. 5 on Form S-3 to Registration
Statement on Form S-4 (the "Registration Statement"). As such counsel and in
connection with the foregoing, we have examined and relied upon such records,
documents and other instruments as in our judgment are necessary or appropriate
in order to express the opinions hereinafter set forth, and have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity to original documents of all documents submitted
to us as certified or photostatic copies.
Based upon and subject to the foregoing and such other matters as we
have deemed relevant, we are of the opinion that the Shares, when issued and
delivered upon payment therefor in the manner and on the terms described in the
Company's 1998 Stock Option Plan, will be validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the reference to us under the
caption "Legal Matters" in the prospectus included in the Registration
Statement.
Very truly yours,
/s/ RILEY, FORD, CALDWELL & CORK, P.A.
<PAGE> 1
EXHIBIT 23.1
ACCOUNTANTS' CONSENT
The Board of Directors
BancorpSouth, Inc.:
We consent to incorporation by reference in the Registration Statement on Form
S-4 of BancorpSouth, Inc. of our report dated January 20, 1998, relating to the
consolidated balance sheets of BancorpSouth, Inc. and subsidiaries as of
December 31, 1997 and 1996, and the related consolidated statements of income,
shareholders' equity and cash flows for each of the years in the three-year
period ended December 31, 1997, which report is included in the 1997 Annual
Report of BancorpSouth, Inc. on Form 10-K of BancorpSouth, Inc. and to the
reference to our firm under the heading "Experts" in the Prospectus.
/s/ KPMG LLP
Memphis, Tennessee
February 23, 1999
<PAGE> 1
EXHIBIT 99.1
BANCORPSOUTH, INC.
1998 STOCK OPTION PLAN
EFFECTIVE NOVEMBER 24, 1998
<PAGE> 2
BANCORPSOUTH, INC. STOCK OPTION PLAN
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I. DEFINITIONS...........................................................................................1
1.1 Affiliate............................................................................................1
1.2 Agreement............................................................................................1
1.3 Board................................................................................................1
1.4 Code.................................................................................................1
1.5 Company..............................................................................................1
1.6 Date of Exercise.....................................................................................1
1.7 Exchange Act.........................................................................................1
1.8 Fair Market Value....................................................................................1
1.9 Incentive Option.....................................................................................2
1.10 Nonqualified Option.................................................................................2
1.11 Option..............................................................................................2
1.12 Participant.........................................................................................2
1.13 Plan................................................................................................3
1.14 Stock...............................................................................................3
1.15 Ten Percent Shareholder.............................................................................3
ARTICLE II. PURPOSE OF PLAN......................................................................................3
ARTICLE III. ADMINISTRATION......................................................................................3
3.1 Administration of Plan...............................................................................3
3.2 Authority to Grant Options...........................................................................4
ARTICLE IV. ELIGIBILITY AND LIMITATIONS ON GRANTS................................................................4
4.1 Participation........................................................................................4
4.2 Grant of Options.....................................................................................4
ARTICLE V. STOCK SUBJECT TO PLAN.................................................................................4
5.1 Source of Shares.....................................................................................4
5.2 Maximum Number of Shares.............................................................................4
5.3 Forfeitures..........................................................................................4
ARTICLE VI. EXERCISE OF OPTIONS..................................................................................5
6.1 Exercise Price.......................................................................................5
6.2 Right to Exercise....................................................................................5
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
6.3 Maximum Exercise Period..............................................................................5
6.4 Transferability......................................................................................5
6.5 Employee Status......................................................................................5
ARTICLE VII. METHOD OF EXERCISE..................................................................................6
7.1 Exercise.............................................................................................6
7.2 Payment..............................................................................................6
7.3 Federal Withholding Tax Requirements.................................................................6
7.4 No Shareholder Rights................................................................................6
7.5 Issuance and Delivery of Shares......................................................................6
ARTICLE VIII. ADJUSTMENT UPON CORPORATE CHANGES..................................................................6
8.1 Adjustments to Shares................................................................................6
8.2 Substitution of Options on Merger or Acquisition.....................................................7
8.3 Effect of Certain Transactions.......................................................................7
8.4 No Adjustment Upon Certain Transactions..............................................................7
8.5 Fractional Shares....................................................................................7
ARTICLE IX. COMPLIANCE WITH LAW AND REGULATORY APPROVAL..........................................................7
9.1 General..............................................................................................7
9.2 Representations by Participants......................................................................8
ARTICLE X. GENERAL PROVISIONS....................................................................................8
10.1 Effect on Employment................................................................................8
10.2 Unfunded Plan.......................................................................................8
10.3 Rules of Construction...............................................................................8
10.4 Governing Law.......................................................................................8
10.5 Amendment...........................................................................................9
10.6 Duration of Plan....................................................................................9
10.7 Effective Date of Plan..............................................................................9
</TABLE>
ii
<PAGE> 4
BANCORPSOUTH, INC. 1998 STOCK OPTION PLAN
PREAMBLE
WHEREAS, BancorpSouth, Inc., (the "Company") desires to establish this
Plan in order to provide equity-based awards to certain employees, former
employees and service providers and to replace equity-based awards held by
former employees of banks that are acquired by the Company through merger and
acquisition; and
WHEREAS, the Company intends that awards will only be made hereunder to
individuals who are not officers or directors of the Company, or as an
inducement to an individual to enter into employment with the Company, and that
Incentive Options shall only be awarded hereunder in replacement of options that
were issued by an entity that is acquired by the Company and qualified as
"incentive stock options" (within the meaning of section 422 of the Code) at the
time of issuance;
NOW, THEREFORE, the Company hereby establishes the BancorpSouth, Inc.
1998 Stock Option Plan (the "Plan"), effective November 24, 1998:
ARTICLE I. DEFINITIONS
1.1 Affiliate. A "parent corporation," as defined in section 424(e) of
the Code, or "subsidiary corporation," as defined in section 424(f) of the Code,
of the Company.
1.2 Agreement. A written agreement (including any amendment or
supplement thereto) between the Company or Affiliate and a Participant
specifying the terms and conditions of an Option granted to such Participant.
1.3 Board. The board of directors of the Company.
1.4 Code. The Internal Revenue Code of 1986, as amended.
1.5 Company. BancorpSouth, Inc. and its successors.
1.6 Date of Exercise. The date that the Company accepts tender of the
exercise price of an Option.
1.7 Exchange Act. The Securities Exchange Act of 1934, as amended.
1.8 Fair Market Value. On any given date, Fair Market Value shall be
the applicable description below (unless, where appropriate, the Committee
determines in good faith the fair market value of the Stock to be otherwise):
(a) If the Stock is reported on the New York Stock Exchange or
the American Stock Exchange, then Fair Market Value shall be
the closing price of the Stock on
1
<PAGE> 5
such exchange on which such Stock is traded on the trading day
as of which Fair Market Value is being determined, or on the
next preceding day on which such Stock is traded if no Stock
was traded on such trading day.
(b) If the Stock is not reported on the New York Stock
Exchange or the American Stock Exchange but is reported on the
Nasdaq National Market System or another Nasdaq automated
quotation system, and market information is published on a
regular basis, then Fair Market Value shall be the closing
price of the Stock, as so published, on the trading day as of
which Fair Market Value is being determined, or the closing
price on the next preceding trading day on which such prices
were published if no Stock was traded on such trading day.
(c) If market information is not so published on a regular
basis, then Fair Market Value shall be the average of the high
bid and low asked prices of the Stock in the over-the-counter
market over a period of trading days that is reasonably
representative of the normal trading of the Stock for the date
on which Fair Market Value is being determined, as reported by
a generally accepted reporting service.
(d) If the Stock is not publicly traded, Fair Market Value
shall be the value determined in good faith by the Committee
or the Board. However, such determination shall not take into
account any restriction on the stock, except for a restriction
which by its terms will never lapse.
1.9 Incentive Option. An Option that is intended to qualify as an
"incentive stock option" within the meaning of section 422 of the Code. An
Incentive Option, or a portion thereof, shall not be invalid for failure to
qualify under section 422 of the Code, but shall be treated as a Nonqualified
Option.
1.10 Nonqualified Option. An Option that is not an Incentive Option.
1.11 Option. The right that is granted hereunder to a Participant to
purchase from the Company a stated number of shares of Stock at the price set
forth in an Agreement. As used herein, an Option includes both Incentive Options
and Nonqualified Options.
1.12 Participant. An employee, former employee, service provider or
consultant of the Company, an Affiliate or a predecessor of the Company who
either satisfies the requirements of Article IV and is selected by the Committee
to receive an Option, or receives an Option pursuant to grant specified in this
Plan. No officer or director of the Company or an Affiliate shall be eligible to
participate in this Plan or to receive an Option under this Plan.
1.13 Plan. The BancorpSouth, Inc. 1998 Stock Option Plan.
1.14 Stock. The common stock of the Company.
2
<PAGE> 6
1.15 Ten Percent Shareholder. An individual who owns more than 10% of
the total combined voting power of all classes of stock of the Company or an
Affiliate at the time he is granted an Incentive Option. For the purpose of
determining if an individual is a Ten Percent Shareholder, he shall be deemed to
own any voting stock owned (directly or indirectly) by or for his brothers and
sisters (whether by whole or half blood), spouse, ancestors or lineal
descendants and shall be considered to own proportionately any voting stock
owned (directly or indirectly) by or for a corporation, partnership, estate or
trust of which such individual is a shareholder, partner or beneficiary.
ARTICLE II. PURPOSE OF PLAN
The purpose of the Plan is to provide a performance incentive and to
encourage stock ownership by employees, certain former employees and directors,
and independent contractors to the Company, its Affiliates, and predecessors of
the Company, and to align the interests of such individuals with those of the
Company, its Affiliates and its shareholders. An additional purpose of the Plan
is to permit the grant of Options to employees and former employees and
directors of predecessors of the Company acquired pursuant to mergers and
acquisitions. The proceeds received by the Company from the sale of Stock
pursuant to this Plan may be used for general corporate purposes.
ARTICLE III. ADMINISTRATION
3.1 Administration of Plan. The Plan shall be administered by the
Committee. The express grant in the Plan of any specific power to the Committee
shall not be construed as limiting any power or authority of the Committee. Any
decision made or action taken by the Committee to administer the Plan shall be
final and conclusive. No member of the Committee shall be liable for any act
done in good faith with respect to this Plan or any Agreement or Option. The
Company shall bear all expenses of Plan administration. In addition to all other
authority vested with the Committee under the Plan, the Committee shall have
complete authority to:
(a) Interpret all provisions of this Plan;
(b) Prescribe the form of any Agreement and notice and manner
for executing or giving the same;
(c) Make amendments to all Agreements;
(d) Adopt, amend, and rescind rules for Plan administration;
and
(e) Make all determinations it deems advisable for the
administration of this Plan.
3.2 Authority to Grant Options. The Committee shall have authority to
grant Options upon such terms the Committee deems appropriate and that are not
inconsistent with the
3
<PAGE> 7
provisions of this Plan. Such terms may include conditions on the exercise of
all or any part of an Option.
ARTICLE IV. ELIGIBILITY AND LIMITATIONS ON GRANTS
4.1 Participation. The Committee may from time to time designate
employees, former employees, service providers, former service providers and
individuals previously granted Options by the Company or a predecessor to whom
Options are to be granted and are eligible to become Participants. Such
designation shall specify the number of shares of Stock, if any, subject to each
Option. All Options granted under this Plan shall be evidenced by Agreements
which shall be subject to applicable provisions of this Plan or such other
provisions as the Committee may adopt that are not inconsistent with the Plan.
4.2 Grant of Options. An Option shall be deemed to be granted to a
Participant at the time that the Committee or the Company designates in a
writing that is adopted by the Committee or the Board as the grant of an Option,
and that makes reference to the Participant and the number of shares of Stock
that are subject to the Option. If an Option is granted as a replacement or
substitute for stock awards, stock options, stock appreciation rights or similar
awards in connection with a merger or acquisition transaction, the Option shall
be deemed to be granted on the original date of grant by the acquired entity.
ARTICLE V. STOCK SUBJECT TO PLAN
5.1 Source of Shares. Upon the exercise of an Option, the Company shall
deliver to the Participant authorized but previously unissued Stock or Stock
that is held by the Company as treasury stock.
5.2 Maximum Number of Shares. The maximum aggregate number of shares of
Stock that may be issued pursuant to the exercise of Options is 235,000 shares.
The numerical limits specified in this Section are subject to increases and
adjustments as provided in Article VIII.
5.3 Forfeitures. If any Option granted hereunder expires or terminates
for any reason without having been exercised in full, the shares of Stock
subject thereto shall again be available for issuance of an Option under this
Plan.
4
<PAGE> 8
ARTICLE VI. EXERCISE OF OPTIONS
6.1 Exercise Price. The exercise price of an Incentive Option shall not
be less than 100% of the Fair Market Value of a share of Stock on the date the
Incentive Option is granted. In the case of a Ten Percent Shareholder, however,
the exercise price of an Incentive Option shall not be less than 110% of the
Fair Market Value of a share of Stock on the date the Incentive Option is
granted. If the exercise price of an Option is changed after the date it is
granted, such change shall be deemed to be a termination of the existing Option
and the issuance of a new Option. The exercise of an option issued by the
Employer as a substitute for an option granted by a previous employer shall be a
price determined by the Committee or Board and to the extent it deems
appropriate or in the case of an Incentive Option shall be a price determined in
accordance with Section 424(a) of the Code and Treasury regulations promulgated
thereunder.
6.2 Right to Exercise. An Option shall be exercisable on any date
established by the Committee or provided for in an Agreement. A Participant must
exercise an Incentive Option while he is an employee of the Company or an
Affiliate or within the periods that may be specified in the Agreement after
termination of employment, death, disability or a "change of control" (as
defined in any change of control agreement to which the Company and any such
Participant are parties).
6.3 Maximum Exercise Period. The maximum period in which an Option may
be exercised shall be determined by the Committee on the date of grant except
that no Incentive Option shall be exercisable after the expiration of 10 years
(five years in the case of Incentive Options granted to a Ten Percent
Shareholder) from the date it was granted. The terms of any Option may provide
that it is exercisable for a shorter period. All Incentive Options shall
terminate on the date the Participant's employment with the Company terminates,
except as otherwise provided in the Agreement with respect to termination of
employment, death, disability or a "change of control" (as defined in any change
of control agreement to which the Company and any such Participant are parties).
6.4 Transferability. Generally, any Option granted under this Plan
shall not be transferable except by will or by the laws of descent and
distribution, and shall be exercisable during the lifetime of the Participant
only by the Participant. However, a Nonqualified Option granted under this Plan
may be transferable to the extent provided in an Agreement. Provided, further,
that no right or interest of a Participant in any Option shall be liable for, or
subject to, any lien, obligation or liability of such Participant.
6.5 Employee Status. The Committee shall determine the extent to which
a leave of absence for military or government service, illness, temporary
disability, or other reasons shall be treated as a termination or interruption
of employment for purposes of determining questions of forfeiture and exercise
of an Option after termination of employment; provided, however, that if the
period treated as employment with respect to an Incentive Option exceeds three
months, such Option shall be deemed a Nonqualified Option.
5
<PAGE> 9
ARTICLE VII. METHOD OF EXERCISE
7.1 Exercise. An Option granted hereunder shall be deemed to have been
exercised on the Date of Exercise. Subject to the provisions of Articles VI and
IX, an Option may be exercised in whole or in part at such times and in
compliance with such requirements as the Committee shall determine.
7.2 Payment. Unless otherwise provided by the Agreement, payment of the
Option price shall be made in cash (including an exercise involving the pledge
of shares and a loan through a broker described in Regulation T) or, to the
extent approved by the Committee, other consideration acceptable to the
Committee.
7.3 Federal Withholding Tax Requirements. Upon exercise of a
Nonqualified Option by a Participant who is an employee or former employee of
the Company, an Affiliate or a predecessor of the Company, the Participant
shall, upon notification of the amount due and prior to or concurrently with the
delivery of the certificates representing the shares, pay to the Company amounts
necessary to satisfy applicable federal, state and local withholding tax
requirements or shall otherwise make arrangements satisfactory to the Company
for such requirements. Such withholding requirements shall not apply to the
exercise of an Incentive Option, or to a disqualifying disposition of Stock that
is acquired with an Incentive Option, unless the Committee gives the Participant
notice that withholding described in this Section is required.
7.4 No Shareholder Rights. No Participant shall have any rights as a
stockholder with respect to shares subject to Options prior to the Date of
Exercise of such Option.
7.5 Issuance and Delivery of Shares. Shares of Stock issued pursuant to
the exercise of Options hereunder shall be delivered to Participants by the
Company (or its transfer agent) as soon as administratively feasible after a
Participant exercises an Option hereunder and executes any applicable
shareholder agreement or agreement described in Section 9.2 that the Company
requires at the time of exercise.
ARTICLE VIII. ADJUSTMENT UPON CORPORATE CHANGES
8.1 Adjustments to Shares. The maximum number of shares of stock with
respect to which Options hereunder may be granted and which are the subject of
outstanding Options, and the exercise price thereof, shall be adjusted
proportionally, in the event that:
(a) the Company or an Affiliate effects one or more stock
dividends, stock splits, reverse stock splits, subdivisions,
consolidations or other similar events; or
(b) the Company or an Affiliate engages in a transaction to
which section 424 of the Code applies.
6
<PAGE> 10
Notwithstanding the foregoing, the Committee may not modify the Plan or the
terms of any Options then outstanding or to be granted hereunder to provide for
the issuance under the Plan of a different class of stock or kind of securities.
8.2 Substitution of Options on Merger or Acquisition. The Committee may
grant Options in substitution for stock awards, stock options, stock
appreciation rights or similar awards held by an individual issued by an entity
that becomes acquired by the Company in connection with a transaction to which
section 424(a) of the Code applies. The terms of such substituted Options shall
be determined by the Committee in its sole discretion, subject only to the
limitations of Article V. Such substituted Options may be Incentive Options to
the extent that the replace incentive stock options (as defined in section 422
of the Code) issued to the Participant by the predecessor entity, and the Option
granted hereunder in replacement thereof qualifies as a substitution of an
option in a transaction to which section 424(a) of the Code applies.
8.3 Effect of Certain Transactions. The effect, if any, of a change in
the control of the Company upon an Option granted hereunder shall be as, and to
the extent (if any), provided in an Agreement.
8.4 No Adjustment Upon Certain Transactions. The issuance by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, for cash or property, or for labor or services rendered,
either upon direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company convertible
into such shares or other securities, shall not affect, and no adjustment by
reason thereof shall be made with respect to, outstanding Options.
8.5 Fractional Shares. Only whole shares of Stock may be acquired
through the exercise of an Option. Any amounts tendered in the exercise of an
Option remaining after the maximum number of whole shares have been purchased
will be returned to the Participant in the form of cash.
ARTICLE IX. COMPLIANCE WITH LAW AND REGULATORY APPROVAL
9.1 General. No Option shall be exercisable, no Stock shall be issued,
no certificates for shares of Stock shall be delivered, and no payment shall be
made under this Plan except in compliance with all federal or state laws and
regulations (including, without limitation, withholding tax requirements),
federal and state securities laws and regulations and the rules of all
securities exchanges or self-regulatory organizations on which the Company's
shares may be listed. The Company shall have the right to rely on an opinion of
its counsel as to such compliance. Any certificate issued to evidence shares of
Stock for which an Option is exercised may bear such legends and statements as
the Committee upon advice of counsel may deem advisable to assure compliance
with federal or state laws and regulations.
9.2 Representations by Participants. As a condition to the exercise of
an Option, the Company may require a Participant to represent and warrant at the
time of any such exercise that
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the shares are being purchased only for investment and without any present
intention to sell or distribute such shares, if, in the opinion of counsel for
the Company, such representation is required by any relevant provision of the
laws referred to in Section 9.1. At the option of the Company, a stop transfer
order against any shares of stock may be placed on the official stock books and
records of the Company, and a legend indicating that the stock may not be
pledged, sold or otherwise transferred unless an opinion of counsel was provided
(concurred in by counsel for the Company) and stating that such transfer is not
in violation of any applicable law or regulation may be stamped on the stock
certificate in order to assure exemption from registration. The Committee may
also require such other action or agreement by the Participants as may from time
to time be necessary to comply with federal or state securities laws. This
provision shall not obligate the Company or any Affiliate to undertake
registration of options or stock hereunder.
ARTICLE X. GENERAL PROVISIONS
10.1 Effect on Employment. Neither the amendment and restatement of
this Plan, nor its operation, nor any documents describing or referring to this
Plan (or any part thereof) shall confer upon any employee any right to continue
in the employ of the Company or an Affiliate or in any way affect any right and
power of the Company or an Affiliate to terminate the employment of any employee
at any time with or without assigning a reason therefor.
10.2 Unfunded Plan. The Plan, insofar as it provides for grants, shall
be unfunded, and the Company shall not be required to segregate any assets that
may at any time be represented by grants under this Plan. Any liability of the
Company to any person with respect to any grant under this Plan shall be based
solely upon contractual obligations that may be created hereunder. No such
obligation of the Company shall be deemed to be secured by any pledge of, or
other encumbrance on, any property of the Company.
10.3 Rules of Construction. Headings are given to the articles and
sections of this Plan solely as a convenience to facilitate reference. The
masculine gender when used herein refers to both masculine and feminine. The
reference to any statute, regulation or other provision of law shall be
construed to refer to any amendment to or successor of such provision of law.
10.4 Governing Law. The laws of the State of Mississippi shall apply to
all matters arising under this Plan, to the extent that federal law does not
otherwise apply or preempt Mississippi law.
10.5 Amendment. The Board may amend or terminate this Plan at any time.
10.6 Duration of Plan. This Plan shall continue until it is terminated
by the Board pursuant to Section 10.5.
10.7 Effective Date of Plan. This Plan shall be effective November 24,
1998.
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IN WITNESS WHEREOF, the undersigned officer has executed this
instrument Plan on this the 24th day of November, 1998, but to be effective as
provided in Section 10.7.
BANCORPSOUTH, INC.
By: /s/ Aubrey B. Patterson
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Its: Chairman and Chief Executive Officer
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