UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-Q
Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934.
For the quarterly period ended June 30, 1999
Commission File Number 2-89900
NBC CAPITAL CORPORATION
(Exact name of registrant as specified in its charter.)
Mississippi 64-0694775
(State of other jurisdiction of (I. R. S. Employer
incorporation or organization) Identification No.)
NBC Plaza, P. O. Box 1187, Starkville, Mississippi 39760
(Address of principal executive offices) (Zip Code)
Registrants's telephone number, including area code: (601) 323-1341
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that
the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days.
YES [X] NO [ ]
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practical date:
Common Stock, $1 Par Value - 5,664,736 shares as of June 30, 1999.
PART I - FINANCIAL INFORMATION
NBC CAPITAL CORPORATION
CONSOLIDATED STATEMENTS OF INCOME FOR
SIX MONTHS ENDED JUNE 30, 1999 AND 1998
(Unaudited)
(Amounts in thousands, except per share data)
1999 1998
________ ________
INTEREST INCOME:
Interest and Fees on Loans $ 21,672 $ 22,182
Interest And Dividends On Investment
Securities 5,445 6,078
Other Interest Income 553 517
________ ________
Total Interest Income 27,670 28,777
INTEREST EXPENSE:
Interest on Deposit 11,363 12,479
Interest on Borrowed Funds 779 951
________ ________
Total Interest Expense 12,142 13,430
________ ________
Net Interest Income 15,528 15,347
Provision for Possible Loan Losses 630 675
________ ________
Net Interest Income After Provision for
Loan Losses 14,898 14,672
NON-INTEREST INCOME:
Income from Fiduciary Activities 660 588
Service Charge on Deposit Accounts 2,257 2,054
Other Non-Interest Income 1,539 1,600
Total Non-Interest Income 4,456 4,242
Gains (Losses) on Securities 17 24
NON-INTEREST EXPENSE:
Salaries and Employee Benefits 6,408 6,531
Expense of Premises and Fixed Assets 2,018 1,808
Other Non-Interest Expense 3,854 3,615
________ ________
Total Non-Interest Expense 12,280 11,954
________ ________
Income Before Income Taxes 7,091 6,984
Income Taxes 1,579 1,671
________ ________
NET INCOME $ 5,512 $ 5,313
======== ========
Basic and Diluted Earnings Per Share $0.97 $0.94
======== ========
NBC CAPITAL CORPORATION
CONSOLIDATED STATEMENTS OF INCOME FOR
QUARTER ENDED JUNE 30, 1999 AND 1998
(Unaudited)
(Amounts in thousands, except per share data)
1999 1998
________ ________
INTEREST INCOME:
Interest and Fees on Loans $ 10,925 $ 11,211
Interest And Dividends On Investment
Securities 2,762 3,094
Other Interest Income 237 151
________ ________
Total Interest Income 13,924 14,456
INTEREST EXPENSE:
Interest on Deposit 5,654 6,305
Interest on Borrowed Funds 404 483
________ ________
Total Interest Expense 6,058 6,788
________ ________
Net Interest Income 7,866 7,668
Provision for Possible Loan Losses 315 352
________ ________
Net Interest Income After Provision for
Loan Losses 7,551 7,316
________ ________
NON-INTEREST INCOME:
Income from Fiduciary Activities 330 294
Service Charge on Deposit Accounts 1,185 1,044
Other Non-Interest Income 776 839
________ ________
Total Non-Interest Income 2,291 2,177
Gains (Losses) on Securities 17 (24)
________ ________
NON-INTEREST EXPENSE:
Salaries and Employee Benefits 3,164 3,315
Expense of Premises and Fixed Assets 1,002 893
Other Non-Interest Expense 1,993 1,742
________ ________
Total Non-Interest Expense 6,159 5,950
________ ________
Income Before Income Taxes 3,700 3,519
Income Taxes 951 801
________ ________
NET INCOME $ 2,749 $ 2,718
======== ========
Basic and Diluted Earnings Per Share $0.49 $ 0.48
======== ========
NBC CAPITAL CORPORATION
CONSOLIDATED BALANCE SHEETS
(Amounts in thousands, except share amounts)
June 30, Dec. 31
1999 1998
(Unaudited) (Audited)
________ ________
ASSETS:
Cash and Due From Banks:
Non-Interest Bearing Balances $ 25,908 $ 27,873
Interest Bearing Balances 15,987 233
________ ________
Total Cash and Due From Banks 41,895 28,106
Held-To-Maturity Securities (Market value of
$32,731 at June 30, 1999 and $34,444 at
December 31, 1998) 30,396 31,156
Available-For-Sale Securities 176,609 172,723
________ ________
Total Securities 207,005 203,879
Federal Funds Sold and Securities Purchased
Under Agreement to Resell 8,926 26,228
Loans 504,363 486,302
Less: Reserve for Loan Losses (9,763) (9,572)
________ ________
Net Loans 494,600 476,730
Bank Premises and Equipment (Net) 15,249 15,021
Interest Receivable 7,676 8,123
Other Assets 20,572 18,945
________ ________
TOTAL ASSETS $795,923 $777,032
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Deposits:
Non-Interest Bearing $ 79,786 $ 91,290
Interest Bearing Deposits 574,715 559,925
________ ________
Total Deposits 654,501 651,215
Federal Funds Purchased and Securities Sold
Under Agreements to Repurchase 12,758 10,464
Other Borrowed Funds 27,561 16,048
Interest Payable 2,278 2,674
Other Liabilities 8,262 8,337
________ ________
TOTAL LIABILITIES 705,360 688,738
________ ________
Stockholders' Equity:
Common Stock $1 par Value, Authorized
10,000,000 shares, Issued and Outstanding
5,664,736 5,665 5,665
Surplus and Undivided Profits 85,699 81,207
Accumulated Other Comprehensive Income
on Available-for-Sale Securities (801) 1,422
________ ________
TOTAL STOCKHOLDERS' EQUITY 90,563 88,294
________ ________
TOTAL LIABILITIES & STOCKHOLDERS' EQUITY $795,923 $777,032
======== ========
NBC CAPITAL CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE SIX MONTHS ENDED JUNE 30, 1999 AND 1998
(Unaudited)
(Amounts in thousands)
1999 1998
________ ________
CASH FLOWS FROM OPERATING ACTIVITIES
Net Income $ 5,512 $ 5,313
Adjustments to Reconcile Net Income to Net Cash
Depreciation and Amortization 1,110 1,078
Deferred Income Taxes (Credits) (881) (37)
Provision for Loan Losses 630 675
Loss (Gain) on Sale of Securities (17) (28)
(Increase) Decrease in Interest Receivable 447 (459)
(Increase) Decrease in Other Assets 213 (6,354)
Increase (Decrease) in Interest Payable (396) (145)
Increase (Decrease) in Other Liabilities (75) (542)
________ ________
Net Cash Provided by Operating Activities 6,543 (499)
CASH FLOWS FROM INVESTING ACTIVITIES
Proceeds from Maturities of Securities 22,005 26,036
Proceeds from Sale of Securities 7,549 14,376
Purchase of Securities (36,031) (53,334)
Increase (Decrease) in Loans (18,500) (5,727)
Additions to Bank Premises and Equipment (1,152) (603)
________ ________
Net Cash Used in Investing Activities (26,129) (19,252)
CASH FLOWS FROM FINANCING ACTIVITIES
Increase (Decrease) in Deposits 3,286 19,588
Dividend Paid on Common Stock (1,020) (727)
Increase (Decrease) in Borrowed Funds 13,807 (12,592)
________ ________
Net Cash Provided by Financing Activities 16,073 6,269
Net Increase (decrease) in Cash and Cash
Equivalents (3,513) (13,482)
Cash and Cash Equivalents at Beginning of Year 54,334 50,533
________ ________
Cash and Cash Equivalents at End of Quarter $ 50,821 $ 37,051
Interest $ 12,538 $ 13,576
Income Taxes $ 1,593 $ 1,595
======== ========
NBC CAPITAL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The accompanying unaudited consolidated financial statements include the
accounts of NBC Capital Corporation and its subsidiaries, National Bank of
Commerce and First National Finance Company. All significant intercompany
accounts and transactions have been eliminated. In the normal decision
making process, management makes certain estimates and assumptions that
affect the reported amounts that appear in these statements. Although
management believes that the estimates and assumptions are reasonable and
are based on the best information available, actual results could differ.
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with Generally Accepted Accounting
Principles have been condensed or omitted.
In the opinion of management, all adjustments necessary for the fair
presentation of the financial statement presented in this report have been
made. Such adjustments were of a normal recurring nature.
On December 31, 1998, the Corporation acquired all the outstanding common
stock of First National Corporation of West Point in exchange for shares of
the Corporation's common stock. The acquisition of First National and its
subsidiaries has been accounted for as a pooling of interest and,
accordingly, all 1998 financial statements have been restated to include
the consolidated accounts and consolidated operations of First National and
its subsidiaries.
PART I. ITEM 2
MANAGEMENT'S DISCUSSION AND ANALYSIS
JUNE 30, 1999
RESULTS OF OPERATIONS
First two quarters of 1999 compared to the first two quarters of 1998
Earnings for the first two quarters of 1999 grew 3.7% to $5.51 million or
$.97 per share. This compares to $5.31 million to $.94 per share for the
first two quarters of 1998. These 1999 totals equate to a 1.4% return on
average assets and a 12.3% return on average equity.
Net interest income for the first two quarters of 1999 was $15.53 million
compared to $15.35 million for 1998. This represents an increase of 1.2%.
This increase resulted in a two basis point increase in the net interest
margin and a $7.9 million increase in average earning assets.
Non-interest income grew 5.0% paced by a 12.2% increase in income from the
Company's Trust and Financial Management activities and a 9.8% increase in
income from deposits accounts.
Security gains of approximately $17,000 were generated during the first two
quarters of 1999. All of the securities that were sold would have matured
during the first quarter of 2000. As the Company began the process of
determining its liquidity needs to meet the projected cash demand relating
to Y2K, management decided to liquidate these securities at this time to
take advantage of their price in the market.
Non-interest expenses increased 2.7% for the period reported. This
increase resulted from an 11.6% increase in the expenses associated with
premises and fixed assets and a 6.6% increase in other non-interest
expenses. The increase in the expenses associated with premises and fixed
assets resulted from a major renovation of the main office of the Company's
Banking Center in Tuscaloosa, Alabama. This building was acquired as part
of the acquisition of First National Corporation of West Point as of
December 31, 1998. A major portion of the increase in other non-interest
expenses results from merger related expenses associated with the pending
acquisition of FFBS Bancorp, Inc., which is scheduled to be completed on
August 31, 1999.
Second quarter of 1999 compared to the second quarter of 1998
Earnings for the second quarter of 1999 grew 1.1% to $2.75 million or $.49
per share. This compares to $2.72 million or $.48 per share for the second
quarter of 1998. These 1999 totals equate to a 1.4% return on average
assets and a 12.1% return on average equity.
Net Interest Income for the second quarter of 1999 was $7.87 million
compared to $7.67 million in 1998. This represents an increase of 2.6%.
This increase resulted from a five basis point increase in the net interest
margin and an $9.4 million increase in average earning assets.
Non-Interest Income grew 5.2% paced by a 12.2% increase in income from the
Company's Trust and Financial Management activities and a 13.5% increase in
income from deposit accounts. This increase in income from deposit
accounts is the result of management's efforts in managing the fee waiver
process.
Non-Interest Expense increased 3.5% for the period reported. Approximately
52% of this increase resulted from additional depreciation and amortization
expense associated with the normal purchases of new equipment to
accommodate the growth in staff resulting from the acquisition of First
National Corporation of West Point on December 31, 1998 and the major
renovation of the main office of the company's Banking Center in
Tuscaloosa, Alabama. Also, during the second quarter, the Company incurred
a 14.4% increase in other non-interest expense. A major portion of this
increase resulted from merger related expenses associated with the pending
acquisition of FFBS Bancorp, Inc., which is scheduled to close on
August 31, 1999.
FINANCIAL CONDITION
The Company's balance sheet shows an increase in total assets from $777
million to $796 million during the first half of 1999. Deposits and
Federal Home Loan Bank borrowings increased $3.3 million and $11.5 million,
respectively. Also, Securities Sold Under Agreements to Repurchase
increased by $2.3 million. These increases in available funds, along with
a $17.3 million reduction in the amount of Fed Funds Sold, were used to
fund an increase in the investment securities portfolio of $3.1 million and
an increase in net loans of $18.1 million. The remaining funds were
invested in the Federal Home Loan Bank money market account in an effort to
increase the Bank's liquidity position for the potential cash needed for
Y2K purposes. Loan quality remains good and management is committed to not
relaxing its underwriting standards.
Shareholders' equity increased from $88.3 million to $90.6 million during
the first half of 1999. This represented a 2.6% increase. During this
period there was a decrease in the market value of the available-for-sale
portion of the investment securities portfolio. This resulted in the
Accumulated Other Comprehensive Income on the available for sale securities
component of Shareholders' Equity decreasing from $1,422,000 at December
31, 1998, to a negative balance of ($801,000) at June 30, 1999. Also,
during the first half of the year the Company declared a dividend of
approximately $1,020,000, payable on July 1, 1999.
The Company's bank subsidiaries are required to maintain minimum amounts of
capital to total risk weighted assets as defined by the banking regulators.
At June 30, 1999, the banks' Tier I, Tier II and Total Capital Ratios
exceeded the well-capitalized standards developed under the referenced
regulatory guidelines.
Dividends paid by the Company are provided from dividends received from the
subsidiary banks. Under the regulations controlling national banks, the
payment of dividends by the banks without prior approval from the
Comptroller of the Currency is limited in amount to the current year's net
profit and the retained net earnings of the two preceding years. At June
30, 1999, this amounted to approximately $15.4 million. Also, under
regulations controlling national banks, the banks are limited in the
amounts they can lend to the Company and such loans are required to be on a
fully secured basis.
YEAR 2000 COMPLIANCE
During the first half of 1999, the Company has continued its efforts to
prepare for January 1, 2000. All levels of the Company's management and its
Board of Directors are aware of the seriousness of this issue and the
effects it may have on the Company and its customers. The Company has a
Year 2000 Steering Committee under the leadership of the President and
Chief Operating Officer to guide it through its action plan for compliance.
The committee has been organized into three major areas, with a senior
officer directly responsible for each of the respective areas. The
committee reports monthly to the Board of Directors.
The first major area of risk relates to the Company's internal hardware and
software programs. The Company does not write its source programming code
and therefore is dependent upon external vendors and service providers.
The Company developed a plan for testing all these systems and began the
testing process during 1998. As of June 30,1999, the testing phase was
completed. Management considers the testing to have been successful.
Where problems were found, steps were taken to make the appropriate
corrections.
The second major area relates to external factors involving customers,
vendors and outside service providers. The risks associated with this
issue go beyond the Company's own ability to solve Year 2000 problems.
Should significant commercial customers fail to address these issues
effectively, their ability to meet debt service requirement could be
impaired, resulting in increased credit risk and increased loan
charge-offs. Should suppliers of critical services fail in their efforts
to become Year 2000 compliant, or if significant third party interfaces
fail to be compatible with the Company or fail to be Year 2000 compliant,
it could have significant adverse affects on the operations and financial
results of the Company. The Company has identified its major commercial
customers and developed plans for educating and monitoring, on an
individual account basis, the adequacy of the customers actions to address
the Year 2000 issues. The assessment of these customers was risk rated and
is being used as a factor in analyzing the allowance for loan losses. This
assessment has also become a part of the overall credit underwriting
process. Currently, management believes that the reserve for loan losses
is adequate to cover the identified risk in the loan portfolio related
specifically to this issue. However, this will be an on-going evaluation
and this situation could change as the Company moves through 1999.
As vendors of critical services and products were reviewed, management
attempted to prioritize these products and services and to determine the
worst case scenarios, assuming that these parties are unable to provide
normal services. Management has prepared contingency plans covering these
scenarios. These plans will be tested, if possible, during 1999.
Both internal and external resources are being utilized to address the Year
2000 problem. A budget of $1.8 million has been completed and approved by
the Board of Directors. Approximately 60% of this total will be from the
allocation of the salary and benefits of current employees assigned to work
on this project. Another 4% will be spent on items that will be
capitalized and amortized or depreciated over future periods. Through the
first half of 1999, the company has incurred approximately $582,000 in both
allocated and direct expenses relating to Year 2000. The remaining portion
of the budget is expected to be spent during the remaining portion of 1999.
This expenditure is not expected to have a material impact on the financial
performance of the Company.
Year 2000 cost and the date on which the Year 2000 modifications are
expected to be completed are based on management's estimates, which were
derived utilizing numerous assumptions of future events including the
availability of certain resources, third party modifications and other
factors. Although Management believes that the desired results will be
attained, there are no guarantees that these estimates will be achieved and
actual results could differ materially from planned results.
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
None
Item 2. Changes in Securities
None
Item 3. Defaults Upon Senior Debt
None
Item 4. Submission of Matters to a Vote of Security Holders
(a) The 1999 Annual Meeting of Shareholders was held on June 15, 1999.
(b) Not Applicable
(c) A vote was taken on a proposal to approve the Agreement and Plan of
Merger dated February 3, 1999, between FFBS Bancorp, Inc., and NBC
Capital Corporation. Upon consummation of this transaction, FFBS
Bancorp, Inc. will be merged into NBC Capital Corporation. This
proposal passed with the following votes being cast:
For 4,674,125
Against or Withheld 2,190
Abstentions 3,637
Broker non-votes 142,406
The following is a separate tabulation for the vote with respect to each
nominee elected as a Director for 1999:
For Withhold
_________ __________
Lewis F. Mallory, Jr. 4,837,805 1,833
Mark A. Abernathy 4,837,579 1,833
Davis Byars 4,791,975 1,877
Robert L. Calvert, III 4,791,975 1,877
Robert A. Cunningham 4,797,447 23,405
J. Nutie Dowdle 4,797,215 1,877
Clifton B. Fowler 4,837,535 1,877
James C. Galloway, Jr. 4,791,975 1,877
Hunter M. Gholson 4,791,775 2,077
Bobby L. Harper 4,791,975 1,877
Robert S. Jones 4,791,775 2,077
Robert D. Miller 4,786,535 2,077
Edith D. Milsaps 4,860,141 2,277
Ralph E. Pogue 4,791,775 2,077
Thomas J. Prince, Jr. 4,786,735 1,877
James R. Prude 4,791,779 2,077
Sarah Scribner Prude 4,770,447 23,405
Allen B. Puckett, III 4,795,227 1,877
Dr. James C. Ratcliff 4,792,339 2,033
Sammy J. Smith 4,837,535 1,877
H. Stokes Smith 4,785,603 3,009
Henry S. Weiss 4,788,557 2,077
Total number of shares eligible to be voted as of June 15, 1999, was
5,664,736.
Item 5. Other Information
On February 3, 1999, NBC Capital Corporation entered into a
Definitive Agreement to acquire the outstanding stock of FFBS
Bancorp, Inc., in exchange for shares of its own common stock.
As a part of the merger, FFBS Bancorp, Inc. has granted an
irrevocable option to NBC Capital Corporation to purchase 19.9%
of the FFBS Bancorp, Inc. issued and outstanding shares of
Common Stock. This transaction is scheduled to be completed on
August 31, 1999.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
27 Financial Data Schedule
99.1 Press Release regarding the acquisition of
Galloway-Chandler-McKinney Insurance Agency by
NBC Capital Corporation, dated June 9, 1999.
99.2 Merger Agreement between NBC Capital Corporation
and Galloway-Chandler-Mckinney Insurance Agency.
(b) Form 8-K
None
The financial information furnished herein has not been audited by
independent accountants; however, in the opinion of management, all
adjustments necessary for a fair presentation on the results of operation
for the six month period ended June 30, 1999, have been included.
NBC CAPITAL CORPORATION
SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of
1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
NBC CAPITAL CORPORATION
Registrant
August 4, 1999 /s/ Richard T. Haston
Date Richard T. Haston
Executive Vice President,
Chief Financial Officer and
Treasurer
<TABLE> <S> <C>
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<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> JUN-30-1999
<CASH> 25,908
<INT-BEARING-DEPOSITS> 15,987
<FED-FUNDS-SOLD> 8,926
<TRADING-ASSETS> 0
<INVESTMENTS-HELD-FOR-SALE> 176,609
<INVESTMENTS-CARRYING> 30,396
<INVESTMENTS-MARKET> 32,731
<LOANS> 504,363
<ALLOWANCE> 9,763
<TOTAL-ASSETS> 795,923
<DEPOSITS> 654,501
<SHORT-TERM> 27,458
<LIABILITIES-OTHER> 10,540
<LONG-TERM> 12,561
5,665
0
<COMMON> 0
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<INTEREST-LOAN> 21,672
<INTEREST-INVEST> 5,445
<INTEREST-OTHER> 553
<INTEREST-TOTAL> 27,670
<INTEREST-DEPOSIT> 11,363
<INTEREST-EXPENSE> 12,142
<INTEREST-INCOME-NET> 15,528
<LOAN-LOSSES> 630
<SECURITIES-GAINS> 17
<EXPENSE-OTHER> 12,280
<INCOME-PRETAX> 7,091
<INCOME-PRE-EXTRAORDINARY> 5,512
<EXTRAORDINARY> 0
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<EPS-BASIC> .97
<EPS-DILUTED> .97
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<LOANS-PAST> 1,650
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<ALLOWANCE-OPEN> 9,572
<CHARGE-OFFS> 632
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Exhibit 99.1
Press Release
Contact: Richard T. Haston For Immediate Release
324-4258 June 9, 1999
Carl Rackley
324-4752
NBC ANNOUNCES INSURANCE ACQUISITION
National Bank of Commerce announced today that it had entered into an
agreement to acquire Galloway-Chandler-McKinney Insurance Agency.
Lewis F. Mallory, Jr., Chairman and CEO of NBC Capital Corporation said
that the proposed merger is in keeping with NBC's goal of becoming a full
financial services provider. Mallory said, "our customers expect us to
provide financial products that meet their needs. With the addition of
this agency we will now be able to service their commercial and personal
insurance requirements," concluded Mallory.
"The Galloway-Chandler-McKinney Insurance agency is excited about the
opportunity this merger offers our company to participate with a financial
institution with the reputation and strength of NBC," said Jimmy Galloway,
President of Galloway-Chandler-McKinney. "We believe that NBC, like us,
shares a total commitment to customer service and we are happy to become a
part of this organization." Kyle Chandler and Steve McKinney, Vice
Presidents, echoed Galloway's enthusiasm for the transaction.
Galloway-Chandler-McKinney has offices in Aberdeen, Amory, West Point, and
Columbus. The agency has been in business for many years and is the
largest agency domiciled in North Mississippi. Galloway-Chandler-McKinney
specializes in commercial and personal lines and offers a full array of
products.
NBC Capital Corporation has approximately $778 million in assets, and
currently operates 32 banking offices in East Mississippi and Tuscaloosa,
Alabama.
The merger will be a stock for stock transaction between the companies and
will be accounted for as a pooling of interest. The agency will retain its
name and operate as a subsidiary of NBC. It is anticipated the process
will take approximately 90 days including time for due diligence and
regulatory application and approval. The transaction is expected to be
completed in the early fall.
Exhibit 99.2
MERGER AGREEMENT
This Merger Agreement ("Agreement") is entered into as of June 2, 1999,
between GALLOWAY-WIGGERS INSURANCE AGENCY, INC. ("GW"), GALLOWAY- CHANDLER-
McKINNEY INSURANCE, INC. ("GCM"), GALLOWAY-CHANDLER-McKINNEY INSURANCE OF
AMORY, INC. ("GCMA"), NAPIER INSURANCE AGENCY, INC. ( "NIA"), JAMES C.
GALLOWAY, JR. ("Galloway"), KYLE CHANDLER INSURANCE AGENCY, INC. ("KCIA"),
KYLE CHANDLER, III ("Chandler"), STEVE McKINNEY ("McKinney"), JACK CAMPBELL
("Campbell"), WILLIAM R. PHILLIPS, III ("WRP"), T. L. PHILLIPS ("TLP"),
STEVE AND MARY MARGARET SWEDENBERG ("SS"), and CECIL VAUGHAN, JR. ("CV"),
collectively referred to as "Acquisition Parties," NBC CAPITAL CORPORATION
("NBCCC") and the NATIONAL BANK OF COMMERCE, a National Banking
Corporation, ("NBC"), a wholly owned and subsidiary of NBCCC.
WHEREAS, GW and KCIA own all of the outstanding stock in GCM, and GCM and
Campbell own all of the outstanding stock in GCMA, and GCMA owns all of the
outstanding stock in NIA, and Galloway, WRP, TLP, SS and CV own all of the
outstanding stock in GW, and Chandler and McKinney own all of the
outstanding stock in KCIA.
WHEREAS, the parties identified above have reached an agreement by the
terms of which substantially all of the properties of GW and KCIA, and
thereafter substantially all of the properties of GCM, will be merged into
NBC in exchange for stock in NBCCC, and all of Campbell's stock in GCMA
will be merged into NBC in exchange for stock in NBCCC, and the parties
wish to commit the terms of that agreement to writing and wish to bind
themselves to participate in and/or approve, as appropriate, the
consummation of this agreement.
WHEREAS, the effect of the parties' agreement would be that immediately
after the contemplated merger, NBC will own substantially all of the
properties of GW, KCIA, GCM and GCMA.
IN CONSIDERATION of the premises, mutual covenants and promises contained
herein, the parties agree and consent as follows:
ARTICLE 1
ACQUISITION OF STOCK AND PROPERTIES
1.1 Acquisition of Stock and Properties. Subject to and upon the
terms and conditions set forth in this Agreement, Acquisition Parties
will transfer, convey, assign and deliver to NBC, and NBC will acquire,
at the Closing hereunder, the following properties, assets and
businesses (and the assumption of liabilities as hereinafter provided)
of the Acquisition Parties engaged in connection with the insurance
business (the "Business"), such Assets being hereinafter referred to
as the "Acquired Assets" in the following manner and sequence:
(a) NBC will acquire substantially all of the assets and business of GW
(and the assumption of liabilities as hereinafter provided) in
exchange solely for common stock of NBCCC in accordance with I.R.C.
Sec. 368(a)(1)(C).
(b) NBC will acquire substantially all of the assets and business of KCIA
(and the assumption of liabilities as hereinafter provided) in
exchange solely for common stock of NBCCC in accordance with I.R.C.
SEC. 368(a)(1)(C).
(c) Substantially all of the properties of GCM will be distributed to NBC
pursuant to I.R.C. Sec. 332(b).
(d) all corporate stock of GCMA owned by Campbell will be acquired in
exchange for NBCCC shares in a number determined according to
paragraph 1.3, and NBC will receive Campbell's GCMA stock pursuant to
I.R.C. Sec. 368(a)(1)(B).
(e) NIA shall be liquidated in accordance with I. R. C. Sec. 332(b) and
its assets distributed to GCMA in complete redemption of all of its
outstanding stock.
(f) GCMA shall be liquidated in accordance with I.R.C. Sec. 332(b) and its
assets distributed to NBC in complete redemption of all of its
outstanding stock.
(g) As a part of this transaction, the assets acquired by NBC shall be
transferred to NBC Insurance Services, Inc., (NBCI) a wholly owned
subsidiary of NBC pursuant to I.R.C. Sec. 368(a)(2)(C).
(h) The NBCCC stock will be distributed to the Acquisition Parties, as
appropriate, upon dissolution of the corporations in which they hold
stock.
The Acquired Assets shall be conveyed free and clear of all liabilities,
obligations, liens and encumbrances excepting only those liabilities and
obligations which are expressly assumed by NBC hereunder.
1.2 Assumption of Liabilities. It is expressly acknowledged and agreed
that NBC will not assume and shall not be liable, either expressly or
impliedly, for any of the obligations or liabilities of Acquisition Parties
of any kind and nature other than those specifically assumed herein.
Acquisition Parties covenant and agree to satisfy or pay when due, all of
the following liabilities:
(a) All outstanding receivables or loans to any shareholder ( or related
parties ) from the corporations represented by the Acquired Assets.
1.3 Acquisition Values.
(a) In consideration of the transfer, conveyance, assignment and delivery
of the substantially all Assets and Business to NBC, and in reliance
upon the representations and warranties made herein by Acquisition
Parties, at closing NBC will transfer to Acquisition Parties
consideration as follows:
(i) To the Shareholders of GW: the consideration of $3,134,000;
(ii) To the Shareholders of KCIA: the consideration of $1,500,000;
and
(iii) To the Shareholders of GCMA: the consideration of $150,000.
(b) The consideration shall be payable by the transfer of the number of
shares of stock in NBCCC, at a per share market value equal to the
average closing price of NBCCC common stock as quoted by the
Over-the-Counter bulletin board for the twenty (20) trading day
period ending one day prior to Closing ("Market Price"), and rounded
up to the next full share sufficient to satisfy the Acquisition Value.
It is agreed that the Market Price shall be based upon an average
which shall include at least five trades, and the trading period shall
be extended back beyond twenty trading days as necessary to satisfy
the five trade minimum, in which event the average shall be based upon
all trades completed within the extended trading period. It is
further agreed that any trades which shall be more than 20% greater,
or more than 20% less, than the average of all trades during the
trading period shall be excluded for purposes of determining the
Market Price. However, in no event shall any fractional shares be
issued, and no party shall be entitled to dividends, voting rights or
any other rights in respect to such fractional shares.
(c) The stock delivered to the shareholders, and other requirements,
shall be in accordance with the requirements necessary for this
transaction to be treated as a pooling of interests transaction for
accounting purposes, applying generally accepted accounting
principles, and all parties shall take the steps necessary to qualify
the transaction as a pooling of interests.
(d) In the event Closing does not occur before September 30, 1999, as
specified in 1.4, the consideration paid shall be modified based upon the
last twelve (12) months ending with the last full calendar quarter prior to
Closing. The consideration paid shall be an amount which, based upon the
twelve (12) months net income as determined by Generally Accepted
Accounting Principles, (with adjustments noted <F1>) would generate a return
on investment to NBC of seven percent (7%).
1.4 Closing. The Closing shall take place at the offices of Gholson,
Hicks & Nichols, P.A., no later than September 30, 1999. In the event
Closing does not occur within this period, the consideration paid shall be
modified, according to the formula in paragraph 1.3(c). In the event
either of the parties is entitled not to close on the scheduled date
because a condition to the Closing has not been met (or waived by the party
or parties entitled to waive it), such party may postpone the Closing from
time to time, by giving at least five days prior notice to the other party,
until the condition has been met (which all parties will use their best
efforts to cause to happen), but in no event to a date later than twelve
(12) months following the execution of this Agreement.
1.4.1 Agreement. The parties shall diligently pursue, and as
expeditiously as possible, execute Articles of Merger consistent with the
provisions of this Agreement and shall use this Agreement and any
amendments as provided for herein as the required Plan of Merger and
satisfy the filing requirements of the state of Mississippi and other
applicable law and regulations. Both parties shall agree to and take such
action as may be necessary to qualify this transaction as a tax-free
reorganization under Section 368 of the Internal Revenue Code and the
regulations thereunder. Appropriate filings shall be made with regulatory
agencies as required,, and/or such other forms and requirements as may be
directed by any applicable regulatory authority.
1.4.2 Effective Time. The effective date of the mergers
contemplated by this agreement shall be the time and date set forth in the
articles of merger filed with the Mississippi Secretary of State and any
related certificates required by any other law.
1.4.3 Effect. On the effective date of the merger, the separate
existence of any merged corporations shall cease, and NBC shall succeed to
all the rights, privileges, immunities, and franchises, and all the
property, real, personal, and mixed, of the merged corporations, without
the necessity for any separate transfer. NBC shall thereafter be
responsible and liable for all liabilities and obligations of the merged
corporations, and neither the rights of creditors nor any liens on the
property of the merged corporations shall be impaired by the merger.
<F1> These adjustments to net income as determined by Generally Accepted
Accounting Principles, as necessary to determine the net return, include
but are not limited to (a) rent expense paid to owners on agreements
terminated at Acquisition, (b) directors' fees expense, (c) amortization
associated with intangible assets with a remaining life of less than twelve
(12) months, (d) income tax expense at the NBC tax rate as if the Company,
for reporting purposes, had been a Corporation (e) any nonrecurring income
or expense, (f) extraordinary items, and (g) loss of contingency income
which results from a natural disaster. In the event Acquisition Parties
dispute the adjustments made by T. E. Lott & Company ("Lott"), then
Acquisition Parties shall designate an accountant ("Designee"), and Lott
and the Designee shall select a third, and the three shall resolve the
issue by majority vote which shall be binding on the parties.
</FN>
1.5 Obligations of Acquisition Parties at Closing; Further Acts and
Assurances.
(a) At the Closing, Acquisition Parties will deliver to NBC such good and
sufficient instruments of conveyance, assignment and transfer, in form and
substance reasonably satisfactory to NBC's counsel, as shall be effective
to vest in NBC good and marketable title to the Acquired Assets and
Business, including the right of NBC to continue to utilize any corporate
name previously utilized in conjunction with the Business.
(b) At any time and from time to time after the Closing, at NBC's request
and without further consideration, Acquisition Partners will execute and
deliver (at NBC's cost and expense) such other instruments of sale,
transfer, conveyance, assignment and confirmation and take such action as
NBC may reasonably deem necessary or desirable in order to more effectively
transfer, convey and assign to NBC, and to confirm NBC's title to all of
the Acquired Assets and Business, to put NBC in actual possession and
operating control thereof and to assist NBC in exercising all rights with
respect thereto.
1.6 Obligations of NBC at Closing.
(a) At the Closing, NBC and Galloway will execute an Employment Contract
in a form acceptable to NBC and Galloway.
1.7 Conversion of Shares. The manner and basis of converting the shares
of the merged corporation into shares of NBCCC is as follows:
(a) Distribution and Dissolution. After the Closing, Acquisition parties
will distribute the shares of NBCCC Common Stock pro rata among its
stockholders as part of a complete winding up, liquidation and dissolution
of Acquisition Parties in accordance with a Plan of Liquidation and
Dissolution.
(b) Holders of certificates of common stock of the merged corporations
shall not be entitled to dividends payable on shares of stock in NBCCC
until certificates have been issued to such shareholders. Thereafter, each
such shareholder shall be entitled to receive any dividends on shares of
stock of NBCCC issuable to them hereunder that may have been declared and
paid between the effective date of the merger and the issuance to such
shareholder of the certificate for his shares in NBCCC.
1.8 Securities Laws. The parties receiving shares of stock in NBCCC
acknowledge that issuance of the shares is subject to the securities laws
of the United States and the State of Mississippi, and to the rules and
regulations thereunder, and that such shares may not be resold or otherwise
transferred except pursuant to such laws and regulations, all as more
particularly described in the Investor Agreement attached as Exhibit A.
1.9 Mutual Understandings of the Parties. To the extent necessary to do
so, the Acquisition Parties agree to dissolve the respective corporations.
The parties acknowledge that GCM has no substantial assets or any
liabilities, but functions solely in an administrative capacity for the
benefit of its shareholders.
All of the proposed activities of the acquired business will be permissible
banking activities permitted under 12 U.S.C. Sec. 92 and related
interpretive letters. By virtue of its ownership NBC shall be empowered to
prevent any of its enterprises from engaging in activities that do not meet
the standards specified in 12 U.S.C. Sec. 92 and related interpretive
letters.
1.10 NBC's Right to Revise the Structure of the Transaction. NBC shall
have the unilateral right to revise the structure of the Merger in order to
achieve tax benefits or for any other reason which NBC may deem advisable;
provided, however, that NBC shall not have the right, without the approval
of the Acquisition Parties, to make any revision to the structure of the
Merger which (i) changes the amount of the consideration which the
Acquisition parties are to receive as determined in the manner provided in
this Agreement; (ii) changes the intended tax-free effect of the Merger, or
(iii) would permit NBC to pay the consideration other than by delivery of
shares of NBC Common Stock. NBC may exercise this right of revision by
giving written notice to the Acquisition parties.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES BY ACQUISITION PARTIES
Acquisition Parties hereby represent and warrant to NBC as follows:
2.1 Organization, Corporate Power and Qualification. Each of the
corporations which are parties to this Agreement and the Acquisition
Parties hereby jointly and severally warrant that each of the corporations
which are parties to this Agreement in which the acquisition parties have
any interest are duly organized, validly existing and in good standing
under the laws of the State of Mississippi and are duly qualified to do
business in each jurisdiction in which such corporation owns property or
conducts business. The Acquisition Parties have the requisite power and
authority necessary to own and operate the properties involved in this and
contemplated transactions, to carry on business and enter into, deliver and
carry out the transactions contemplated by this document.
2.2 Any disclosure, other document, schedule or financial statements
provided by Acquisition Parties to NBC are true, complete and accurate,
have been based upon the information contained in their books and records
and present fairly their assets, liabilities and financial condition as at
the respective dates thereof and the results of their operations for the
periods ended at the respective dates thereof, in each case prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved and with prior periods.
All notes and accounts receivable shown on the balance sheet of each entity
involved in this transaction are valid receivables and current assets and
are not subject to any valid counterclaim or set off. As of the Closing
date, the Acquisition Parties will not have any liability whether accrued,
contingent, unliquidated or otherwise, whether due or to become due and
regardless of when asserted other than the liabilities set forth on the
face of the latest balance sheet of any entity involved herein and current
liabilities which have arisen after the date of the last balance sheet in
the ordinary course of business and consistent with the past practices.
2.3 Absence of Certain Recent Changes. Except as expressly provided in
this Agreement or as set forth on Schedule B and through the Closing Date,
without the written consent of NBC, Acquisition Parties have not been and
will not have taken any of the following actions that materially affect
this transaction:
(a) except current liabilities for trade or business obligations incurred
in connection with the purchase of goods or services in the usual and
ordinary course of business, consistent with past practice, and in an
amount which is usual and normally incurred, both individually and in the
aggregate, any indebtedness or other liabilities (whether accrued,
absolute, contingent or otherwise), guaranteed any indebtedness or sold any
assets other than inventory in the normal course of business;
(b) suffered any damage, destruction or loss, whether or not covered by
insurance;
(c) suffered the resignation or other termination of any management
personnel of GW, KCIA or GCMA, or the material loss of or other
termination of a material business relationship with any customers or
suppliers of their business;
(d) except as provided in 8.3, increased the regular rate of compensation
payable to any employee, other than normal merit and cost of living
increases granted in the ordinary course of business; or increased such
compensation by bonus, percentage, compensation service award or similar
arrangement theretofore in effect for the benefit of any employees, and no
such increase is required;
(e) established or agreed to establish, amended or terminated any pension,
retirement or welfare plan or arrangement for the benefit of their
employees not theretofore in effect;
(f) suffered any change in financial condition, assets, liabilities,
operations, prospects or business or suffered any other event or condition
of any character which individually or in the aggregate has or might
reasonably have a material adverse effect on Acquisition Parties;
(g) had any change in the capitalization of GW, KCIA or GCMA, including,
without limitation, the issuance by them of any shares of stock of any
class, any subscriptions, options, warrants, convertible securities,
rights, calls, agreements, commitments or rights affecting or relating in
any manner whatsoever to any equitable interests in GW or GCMA;
(h) declared or paid any dividend or other distribution on any class of
the capital stock of GW, KCIA or GCMA or purchased or redeemed any of its
capital stock, provided however, a distribution can be made to shareholders
as necessary to satisfy any tax liability resulting from the close of
corporate business activity or shareholders' previously taxed earnings;
(i) failed to replenish its inventories and supplies in a normal and
customary manner consistent with past practice and prudent business
practice prevailing in the industry or made any purchase commitments in
excess of normal, ordinary and usual for the business or at any price in
excess of current market price or terms more onerous than customary in the
industry or made any change in its selling, pricing, advertising or
personnel practices inconsistent with prior practices and prudent business
practices prevailing in the industry;
(j) unless mutually agreed ( orally or in writing ) by the parties, made
any single capital expenditure which exceeded $3,000 or made aggregate
capital expenditures which exceeded $25,000;
(k) permitted or allowed any of the Assets of GW, KCIA or GCMA (real,
personal or mixed, tangible or intangible) to be subjected to any mortgage,
pledge, lien, security interest, encumbrance, restriction or charge of any
kind;
(l) written down the value of any of the Acquired Stock, or written off as
uncollectible any notes or accounts receivable thereof;
(m) paid, discharged or satisfied any claims, liabilities or obligations
(absolute, accrued, contingent or otherwise) other than in the usual and
ordinary course of business;
(n) canceled any debts or waived any claims or rights whether or not in
the usual and ordinary course of business;
(o) paid, lent or advanced any amount to, or sold, transferred or leased
any properties or assets (real, personal or mixed, tangible or intangible)
to, or entered into any agreement or arrangement with Acquisition Parties,
except for reimbursement of ordinary and reasonable business expenses
related to their business and compensation to officers at rates not
exceeding the rates of compensation at the Balance Sheet Date, and except
as provided in 8.3;
(p) amended, terminated or otherwise altered (whether by action or
inaction) any contract, agreement or license to which GW, KCIA or GCMA is
a party, or received any notice of termination or violation of the same;
(q) entered into a material transaction other than in the ordinary course
of business or made any change in any method of accounting or accounting
practice;
(r) canceled, or failed to continue, insurance coverages; or
(s) become aware, and failed to disclose, of any conditions or
contingencies which could cause the renewal income of the Acquisition
Parties to be canceled or reduced;
(t) acquired, or agreed to acquire, any new companies or lines of
insurance business.
(u) incurred any indebtedness outside the normal course of business
without NBC
approval.
2.4 Title to Properties.
(a) Acquisition Parties have good and marketable title to all of the
Acquired Assets. None of such properties and assets are subject to any
mortgage, pledge, lien, charge, security interest, encumbrance,
restriction, lease, license, easement, liability or adverse claim of any
nature whatsoever, direct or indirect, whether accrued, absolute,
contingent or otherwise, except as expressly permitted by the terms hereof.
The physical assets of the corporations are being transferred to the NBC
"as is," "where is": and the Acquisition Parties make no representation or
warranty regarding the condition or sufficiency of the physical assets of
the Acquired Assets.
(B) Campbell shall have clear ownership of his stock in GCMA.
2.5 Leasehold Property. Except as disclosed herein:
(a) Acquisition Parties enjoy peaceful and undisturbed possession of the
leasehold real property located in Columbus, Mississippi, in West Point,
Mississippi, in Amory, Mississippi, and in Aberdeen, Mississippi
(collectively, the "Leasehold"), the legal descriptions which are attached
as Schedule C. The use of the Leasehold in the Business do not currently
violate any material existing zoning, building or use statutes, rules,
ordinances or regulations of any federal, state, county or local entity,
authority or agency the violation of which would have a material adverse
effect on the Acquired Stock or the Business as it is presently conducted.
Acquisition Parties have not received notice of any material violation of
any law, zoning ordinance or regulation affecting the Leasehold and have
not received any notice of nor has any knowledge of or information as to
any existing or threatened condemnation or other legal action of any kind
involving the Leasehold which may affect the value of the Leasehold. The
use of the Leasehold, and the activities conducted thereon, have been, and
are proper and in compliance with all material applicable laws, rules and
regulations with proper permits and licenses.
(b) Other than the lease, there are no contracts, leases or agreements in
effect with respect to the Leasehold of any kind or nature whatsoever.
(c) To Acquisition Parties' knowledge, there are no building use or deed
restrictions relating to the Leasehold that are not of public record. To
Acquisition Parties' knowledge, there are no structural defects in any
buildings or improvements located on the Leasehold.
2.5.1 Personal Property Leases. Acquisition Parties have provided
NBC with a list of all outstanding leases to which are a part of the
Acquired Assets. To Acquisition Parties' knowledge, each lease is in full
force and effect. The execution of this Agreement is not violative of the
lease terms.
2.6 Execution, Delivery and Performance of Agreement; Authority. Neither
the execution, delivery nor performance of this Agreement by Acquisition
Parties will, with or without the giving of notice or the passage of time,
or both, conflict with, result in a default, right to accelerate or loss of
rights under, or result in the creation of any lien, charge or encumbrance
pursuant to, any provision of Acquisition Parties' certificates of
incorporation or bylaws or any mortgage, deed of trust, lease, license,
agreement, law, rule or regulation or any order, judgment or decree to
which Acquisition Parties are a party or by which the Acquired Assets may
be bound or affected. Acquisition Parties have the full power and
authority to enter into this Agreement and to carry out the transactions
contemplated hereby, all proceedings required to be taken by Acquisition
Parties to authorize the execution, delivery and performance of this
Agreement and the agreements relating hereto have been properly taken and
this Agreement and each document to be executed in connection herewith
constitutes a valid and binding obligation enforceable in accordance with
its terms against Acquisition Parties.
2.7 Assets Necessary to Business. Acquisition Parties presently have all
material licenses and other agreements, necessary to operate the Business
as currently operated, and have provided NBC with a list of the contracts
in place.
2.8 Litigation. Except as previously provided to NBC, there is no
claim, legal action, suit, arbitration, governmental investigation or other
legal or administrative proceeding, nor any order, decree or judgment in
progress, pending or in effect, or, to the knowledge of Acquisition
Parties, threatened, against or relating to the Acquired Assets or the
Business or relating to the transactions contemplated by this Agreement.
2.9 Compliance With Laws and Other Instruments. Acquisition Parties have
complied with all material laws, rules, regulations, ordinances, orders,
judgments and decrees now or hereafter applicable to the Business and the
Acquired Assets, or operations as presently conducted, and have provided
NBC with a list of such permits and licenses. That list is complete and
current and sufficient to authorize all business now being conducted by the
Acquisition Parties, all of which can be assigned to or renewed by NBC.
Neither the ownership nor use of the Acquired Assets nor the conduct of the
Business conflicts with the rights of any other person, firm or corporation
or violates, or with or without the giving of notice or the passage of
time, or both, will violate, conflict with or result in a default, right to
accelerate or loss of rights under, any terms or provisions of its
certificate of incorporation or bylaws as presently in effect, or any lien,
encumbrance, mortgage, deed of trust, lease, license, Agreement,
understanding, law ordinance, rule or regulation or any other, judgment or
decree to which Acquisition Parties are a party or by which it may be bound
or affected. Acquisition Parties are not aware of any proposed laws,
rules, regulations, ordinances, orders, judgments, decrees, governmental
takings, condemnations or other proceedings which would be applicable to
its business, operations or properties and which might adversely affect the
Acquired Stock or Business, either before or after Closing.
2.10 Taxes. The Acquisition Parties have filed all tax returns and other
reports required to be filed and each return or other report was correct
and complete in all respects and the Acquisition Parties have paid all
taxes due and owing by them whether or not shown on any such tax return and
have withheld and paid over all taxes obligated to be withheld from amounts
paid or owing to any employee, independent contractor, stockholder,
creditor or other third party. No tax audits are pending or being
conducted with respect to any acquisition party and there are no liens on
any of the assets of the Acquisition Parties which have arisen in
connection with any failure or alleged failure to pay any tax. No
information related to tax matters has been requested by any taxing
authority, and the Acquisition Parties have not received notice indicating
an intent to open an audit or other review by any taxing authority. There
are no unresolved disputes or claims concerning any tax liability.
2.11 Environmental Matters. Except as disclosed herein:
(a) All material federal, state and local permits, licenses and
authorizations required for the use and operation of the Acquired Assets
have been obtained and are presently in effect.
(b) None of the Acquired Assets have been used by Acquisition Parties to
handle, treat, store or dispose of any hazardous or toxic waste or
substance, nor are any of the Acquired Assets, including all soils,
groundwaters and surface waters located on, in or under the Acquired
Assets, contaminated with pollutants or other substances which
contamination may give rise to a clean-up obligation under any federal,
state or local law, rules, regulation or ordinance, including, but not
limited to, the federal Comprehensive Environmental Response, Compensation
and Liability Act, 42 USC 9601 et sg., and the common law.
(c) There are no outstanding violations or any consent decrees entered
against Acquisition Parties relating to the Business or the Acquired Assets
regarding environmental and land use matters, including, but not limited
to, matters affecting the emission of air pollutants, the discharge of
water pollutants, the management of hazardous or toxic substances or
wastes, or noise.
(d) There are no claimed, threatened or alleged violations with respect to
any material federal, state or local environmental law, rule, regulation,
ordinance, permit, license or authorization relating to the Business, and
there are no present discussions relating to the Business with any federal,
state or governmental agency concerning any alleged violation of
environmental laws, rules, regulations, ordinances, permits, licenses, or
authorizations.
(e) All operations conducted by Acquisition Parties on the Leasehold have
been and are in compliance with all federal, state and local statutes,
rules, regulations, ordinances, permits, licenses and authorizations
relating to environmental compliance and control.
2.12 ERISA.
(a) Other than this Agreement or as described on contracts previously
provided to NBC, the Acquisition Parties are not parties to any written or
oral pension, profit sharing, stock option, employee stock purchase or
other plan or arrangement providing for deferred or other compensation to
employees or any other employee benefit, welfare or stock plan or
arrangement; contracts pursuant to which the Acquisition Parties have
advanced or agreed to advance or loan funds; assignment, license,
indemnification or other contract; contract or agreement with respect to
services rendered or goods sold or leased to or from others, or any other
contract which is material to the business or involves a consideration in
excess of $10,000.
(b) The Acquisition Parties have each performed all obligations required
to be performed by any of them under each such contract listed in Schedule
J, and to the best of each Acquisition Party's knowledge, no such
Acquisition Party is in default with respect to any such contract or
obligation.
2.13 Insurance. All insurance policies or binders of Acquisition
Parties are valid, outstanding and enforceable and will continue to be
valid, binding and enforceable through Closing.
2.14 Adverse Change. Except as set forth and disclosed in schedules to
this Agreement, there has been no adverse material change in the assets or
condition of any company involved in the Business since the date of the
latest balance sheet.
2.15 No Finders or Brokers. Acquisition Parties have not engaged any
finder or broker in connection with the transactions contemplated
hereunder.
2.16 Disclosure. No representations and warranties by the Acquisition
Parties and no statement in this Agreement or any document or certificate
furnished or to be furnished to the parties pursuant hereto contains or
will contain any untrue statement or omit or will omit to state a fact
necessary in order to make the statements contained therein not misleading.
Acquisition Parties have disclosed to NBC all facts known material to the
Acquired Assets and Business. There are no facts known to the Acquisition
Parties not yet disclosed which would adversely affect the Acquired Assets
or future operation of the Business.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF NBC
NBC hereby represents and warrants as follows:
3.1 As a material inducement to the Acquisition Parties to enter into this
Agreement, NBC hereby represents and warrants that it is a duly organized,
validly existing national banking corporation in good standing under the
laws of the United States and the states in which it does business. The
bank has the requisite power and authority and all authorizations necessary
to enter into, deliver and carry out its obligations pursuant to this
Agreement and any transactions pursuant thereto to which it is or shall
become a party. This Agreement and each transaction document related
thereto to which NBC is or becomes a party shall constitute a valid and
binding obligation of NBC which is enforceable in accordance with its terms
and its execution and performance will not conflict with or result in a
breach of the terms, conditions or provisions of any other agreement of
which it is a party or a violation of any regulatory provision applicable
to it.
3.2 Approval by the shareholders of NBCCC for this merger is not required
because:
(a) The articles of incorporation of NBCCC will not differ from its
articles before the merger;
(b) Each shareholder of NBCCC whose shares were outstanding immediately
before the effective date of the merger will hold the same number of
shares, with identical designations, preferences, limitations and relative
rights, immediately after;
(c) The number of voting shares outstanding immediately after the merger,
plus the number of voting shares issuable as a result of the merger (either
by the conversion of securities issued pursuant to the merger or the
exercise of right and warrants issued pursuant to the merger), will not
exceed by more than twenty percent (20%) the total number of voting shares
of NBCCC outstanding immediately before the merger; and
(d) The number of participating shares outstanding immediately after the
merger, plus the number of participating shares issuable as a result of the
merger (either by the conversion of securities issued pursuant to the
merger), will not exceed by more than twenty percent (20%) the total number
of participating shares outstanding immediately before the merger.
3.3 Disclosure. No representations and warranties by the parties in
this Agreement and no statement in this Agreement or any document or
certificate furnished or to be furnished to the parties pursuant hereto
contains or will contain any untrue statement or omit or will omit to state
a fact necessary in order to make the statements contained therein not
misleading.
3.4 No Finders, or Broker. Neither NBC, nor any party, officer or
director thereof, has engaged any finder or broker in connection with the
transactions contemplated hereby.
ARTICLE 4
COVENANTS OF NBC
NBC hereby covenants and agrees as follows:
4.1 Information. NBC shall promptly provide to Acquisition Parties any
information or documents reasonably requested by Acquisition Parties
relating to the Business and the Acquired Assets.
4.2 Corporate Action. NBC will take all necessary corporate and other
action and use its reasonable efforts to obtain all consents, approvals and
amendments of agreements required of it to carry out the transactions
contemplated by this Agreement and to satisfy the conditions specified
herein.
4.3 Unusual Events. Until the Closing Date, NBC shall supplement or
amend all relevant Schedules with respect to any matter thereafter arising
or discovered which, if existing or known at the date of this Agreement,
would have been required to be set forth or described in such Schedules;
provided, however, that shall not be deemed to amend or supplement any
Schedules or to prevent or cure any misrepresentation, breach of warranty
or breach of covenant, unless agreed to in writing by these parties.
4.4 Each representation and warranty set forth in this Agreement and all
information contained in any part of it on behalf of NBC will be true and
correct as of the time of the anticipated merger as though then made except
to such extent that NBC has advised the otherwise in writing prior to
closing.
4.5 Handling of Documents. With respect to information provided by
Acquisition Parties pursuant to this Agreement prior to the Closing, NBC
agrees to keep all such information confidential which is not in the public
domain, except to the extent that such information (i) becomes generally
available to the public other than as a result of disclosure directly or
indirectly by Acquisition Parties, (ii) was known by NBC on a
non-confidential basis prior to disclosure to NBC by Acquisition Parties
pursuant to this Agreement or (iii) becomes available to NBC on a
non-confidential basis from a source (other than Acquisition Parties) which
is entitled to disclose the same, and to exercise the same care in handling
such information as it would exercise with similar information of its own.
4.6 Non-Disclosure. NBC will keep confidential and not disclose to any
third party any information relating to the business of Acquisition
Parties, whether acquired by NBC before or after the Closing Date, which
Acquisition Parties haves not made generally available to the public.
ARTICLE 5
COVENANTS OF ACQUISITION PARTIES
Acquisition Parties hereby covenant and agree as follows:
5.1 The following Schedules A through C are attached hereto and
incorporated in this Agreement by reference. The Acquisition Parties
covenant that the information contained on such schedules is true and
correct to the best of their knowledge and that any claims, liabilities or
other information hereafter disclosed not included on these schedules shall
require the acquisition parties to indemnify NBC and its affiliated
companies from all claims, charges and expenses with respect to such
undisclosed matters.
5.2 To the extent reasonably required for due diligence and any other bona
fide business purpose, the Acquisition Parties will allow NBC, its agents,
representatives and affiliates access to all business records and files
concerning any business involved in the proposed acquisition.
5.3 Best Efforts to Secure Consents. Acquisition Parties shall take such
actions and use their reasonable efforts to secure before the Closing Date
all necessary consents and approvals, as well as licenses, required to
carry out the transactions contemplated by the Agreement and to satisfy all
other conditions precedent to the obligations of these parties.
5.4 Unusual Events. Until the Closing Date, Acquisition Parties shall
supplement or amend all relevant Schedules with respect to any matter
thereafter arising or discovered which, if existing or known at the date of
this Agreement, would have been required to be set forth or described in
such Schedules; provided, however, that shall not be deemed to amend or
supplement any Schedules or to prevent or cure any misrepresentation,
breach of warranty or breach of covenant, unless agreed to in writing by
these parties.
ARTICLE 6
CONDITIONS PRECEDENT TO CLOSING
6.1 At closing, Acquisition Parties shall have acquired and maintained in
full force and effect errors and omissions insurance coverage and other
liability coverage of not less than $3,000,000 so as to insure both the
Acquisition Parties and NBC from any future liabilities not disclosed in
schedules to this Agreement. After Closing, the cost of that insurance
shall be paid by NBC.
6.2 This agreement is further contingent upon (a) necessary corporate
approvals (b) the completion and acceptance by NBC and the Acquisition
Parties of a due diligence study to be made by the internal and independent
auditors of NBC and contingent upon approval of all appropriate bank and
bank holding company regulatory authority and the Mississippi Insurance
Commissioner to permit NBC to market the insurance and related products of
the Acquisition Parties on a state-wide basis in a manner reasonably
acceptable to NBC.
6.3 Representations and Warranties True. All of the representations and
warranties made by the parties contained in Articles 2 and 3 of this
Agreement shall be true as of the date of this Agreement and shall be
deemed to have been made again at and as of the date of Closing, and shall
be true at and as of the date of Closing in all material respects; the
parties shall have performed and complied in all material respects with all
covenants and conditions required by this Agreement to be performed or
complied with by them prior to or at the Closing.
6.4 This agreement is contingent upon the lease, upon terms satisfactory
to all parties , of the Leasehold interest referred to in paragraph 2.5.
6.5 Authority. All action required to be taken by or on the part of
the parties to authorize the execution, delivery and performance of this
Agreement by the parties and the consummation of the transactions
contemplated hereby shall have been duly and validly taken by any Board of
Directors of the corporate parties.
6.6 Consents and Approvals. Each of the parties to any agreement or
instrument under which the transactions contemplated hereby would
constitute or result in a default or acceleration of obligations shall have
given such consent as may be necessary to permit the consummation of the
transactions contemplated hereby without constituting or resulting in a
default or acceleration under such agreement or instrument, and any
consents required from any public or regulatory agency or organization
having jurisdiction shall have been given.
6.7 No Adverse Change. From the date of this Agreement until the Closing,
the operations of the business of the parties shall have been conducted in
the ordinary course of business consistent with past practice and, from the
date of the disclosed Financial Statements until the Closing, no event
shall have occurred or have been threatened which has or would have a
material and adverse affect upon the financial condition, assets,
liabilities, operations, prospects or business of the parties, and the
parties shall have not sustained any loss or damage to their assets,
whether or not insured, or activity that affects materially and adversely
their ability to conduct their business or close this transaction.
6.8 Neither party hereto shall be subject to any order, decree, or
injunction of a court or agency of competent jurisdiction which enjoins or
prohibits the consummation of this Merger.
6.9 The parties shall have received an opinion of special tax advisor,
T. E. Lott & Company, to the effect that the transaction will be treated,
and will qualify, as a tax-free reorganization and liquidation within the
meaning of I.R.C. Sections 332(b) and 368(a); that no gain or loss will be
recognized by Acquisition Parties on account of the conversion of its stock
into NBC stock; and that the transaction contemplated shall be in
accordance with the requirements necessary for this transaction to be
treated and quality as a Pooling of Interest Transactions for accounting
purposes applying GAAP.
6.10 Each beneficial owner of shares of stock of the Acquisition Parties
shall have executed and delivered to NBCCC an Investor Agreement in the
form attached as Exhibit A.
6.11 All permits, consent, waivers, clearances, approvals, and
authorizations of all third parties and federal and state governmental
bodies shall have been obtained in a form which is unconditional or which
provides no conditions which would be unacceptable to either party, and all
statutory waiting periods shall have expired.
6.12 Negotiation and execution of an employment contract between Galloway
and NBC that is satisfactory to NBC and Galloway.
ARTICLE 7
TERMINATION
7.1 General Terms. Either party shall be entitled to terminate this
Agreement in the event of a material misrepresentation contained in this
Agreement or in any information supplied by Acquisition Parties to NBC
prior to closing.
7.2 Optional Termination. This Agreement may be terminated and the
transactions contemplated hereby abandoned at any time prior to the Closing
Date, notwithstanding any formal approval by any party, as follows:
(a) By mutual consent of the Acquisition Parties and NBC; or
(b) By any party, if any of the conditions set forth in Article 6 shall
not have met by any other party; provided that no party shall be entitled
to terminate this Agreement pursuant to this section if that party's
willful breach of this Agreement has prevented the consummation of the
transactions contemplated hereby.
(c) By either party upon receipt of shareholder or regulatory approval in
a form which provides conditions which would be unacceptable to either
party as provided for herein;
(d) By NBC in the event that prior to the Effective Time the proposed
Merger is determined by applicable regulatory authority to be disqualified
as a pooling of interest in accordance with GAAP;
(e) By Acquisition Parties in the event that prior to the Effective Time
it is determined that the Merger will not qualify as a tax-free
reorganization and exchange under I.R.C. Section 368(a) as determined by
special tax counsel;
(f) By either party, if at the time of such determination there shall be a
material adverse change in the financial condition of the other party from
that set forth in the financial statements for the period ending December
31, 1998;
(g) By the non-breaching party in the event of a material breach in the
provisions of this Agreement, and said breach has not been cured within 30
days of written notice by the non-breaching party to the other party
setting out in specific detail the nature of the claimed material breach.
(h) Upon denial of regulatory or shareholder approval.
7.3 Termination. In the event this Agreement is terminated as
provided above, all parties shall return to all other parties all documents
(and copies thereof in its possession) concerning the parties which have
previously been delivered by the parties to one another; and none of the
parties nor any of their respective partners, shareholders, directors, or
officers shall have any liability to the other party for costs, expenses,
loss of anticipated profits, consequential damages, or otherwise, except
for any deliberate breach of any of the provisions of this Agreement.
ARTICLE 8
OTHER AGREEMENTS
8.1 Employee Matters. Following the anticipated merger, the employees of
the Business shall become either employees or independent commission
salesmen of NBCI. The employees shall become participants in the benefit
programs for other NBC employees but coverage in the ESOP and defined
benefit pension plan shall only be implemented at such time as may be
initially agreed upon by the parties but within the twenty-four (24) months
following the Closing, except as otherwise required by ERISA.
8.2 It is anticipated that upon the implementation of the proposed merger,
the corporations represented by the Acquired Assets shall become ineligible
to continue as "S" corporations. In that event, the present shareholders
of each disqualified corporation shall be liable for and indemnify NBC with
respect to all built-in gain taxes triggered by such ineligibility.
8.3 Except for the stock in Associated Insurors of Mississippi, Inc.,
which shall be retained, unless extended by agreement, prior to Closing,
investments of GW in other companies are to be liquidated at or more than
the stated value in accordance with the balance sheet of the company (as of
the calendar year end preceding closing), as reviewed by Thomas, Kerby &
Brown, Certified Public Accountants.
8.4 Any income tax liability which may subsequently arise from
transactions prior to the merger shall be satisfied by the present
shareholders of the acquired corporations.
ARTICLE 9
INDEMNIFICATION
9.1 Grant of Indemnity.
(a) Acquisition Parties hereby indemnify and agree to hold NBC harmless
from, against and in respect of (and shall on demand reimburse NBC for):
(i) any and all loss, claim, liability, damage or expense (each a "Loss"
and collectively, "Losses") suffered or incurred by NBC by reason of any
untrue representation, breach of warranty or nonfulfillment of any covenant
by Acquisition Parties;
(ii) any and all loss, liability or damage suffered or incurred by NBC in
respect of or in connection with any liabilities of Acquisition Parties
which are not Assumed Liabilities;
(iii) any and all debts, liabilities or obligations of Acquired
Parties, direct or indirect, fixed, contingent or otherwise, which exist at
or as of the date of the Closing hereunder or which arise after the Closing
but which are based upon or arise from any act, transaction, circumstance,
sale of goods or services, state of facts or other condition which occurred
or existed on or before the date of the Closing, whether or not then known,
due or payable, except for the Assumed Liabilities;
(iv) any and all actions, suits, proceedings, claims, demands, assessments,
judgments, costs and expenses, including, without limitation, legal fees
and expenses, incident to any of the foregoing or incurred in investigating
or attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
(b) NBC hereby agrees to indemnify and hold Acquisition Parties harmless
from, against and in respect of (and shall on demand reimburse them for):
(i) any and all loss, liability or damage resulting from any untrue
representation, breach of warranty or nonfulfillment of any covenant or
agreement by NBC contained herein or in any certificate, document or
instrument delivered to Acquisition Parties hereunder;
(ii) any and all loss, liability or damage arising from or out of the
Assumed Liabilities; and
(iii) any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including, without limitation,
legal fees and expenses, incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or to oppose the imposition
thereof, or in enforcing this indemnity.
(c) Except as excused in writing by the parties, all representations and
warranties contained herein will survive the execution and delivery of this
Agreement and the consummation of transactions contemplated hereby, and the
Acquisition Parties shall be liable to NBC for any claims or undisclosed
liabilities for the period of any statute of limitations with respect to
such liabilities. This liability will be joint and several. In the event
that NBC receives notice of any such claim for which it believes the
Acquisition Parties or any one of them may be liable, NBC shall thereupon
give written notice to the party thought or claimed to be liable and that
party or any other Acquisition Party involved shall have the duty and
responsibility of defending or settling said claim. In such case, the
indemnifying party shall keep NBC fully advised as to the status of any
such claim and if at any time it appears within the reasonable judgment of
NBC that such claim is not being defended or resolved so as to avoid the
imposition of additional liability upon NBC, NBC may thereupon assume the
defense or negotiated settlement of such claim and the Acquisition Party or
parties responsible or against whom such claim is asserted shall be fully
liable to NBC for all costs and expenses involved in the resolution of any
such claim.
(d) Anything in this agreement to the contrary notwithstanding, the
indemnity benefits granted in this section shall survive the Closing Date
for a period equal to the statute of limitations applicable to the conduct
for which indemnity is sought.
(e) Anything in this agreement to the contrary notwithstanding, no party
shall be required to make payment for indemnification pursuant to this
Section 9.1 with respect to any Losses until such Losses exceed $5,000 in
the aggregate, in which case such party shall be liable only for Losses
arising from a breach of representation or warranty above $5,000.
Notwithstanding anything to the contrary contained herein, no party shall
be liable for indemnification hereunder in excess of $5,000,000.
(f) These indemnity provisions are subject to the qualifications contained
in paragraph 10.17 of this Agreement.
ARTICLE 10
MISCELLANEOUS
10.1 Notices. All notices, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given if
delivered in person or by certified mail, registered mail (postage prepaid)
or by reputable overnight courier service (charges prepaid):
To Acquisition James C. Galloway, Jr.
Parties: Post Office Box 9670
Columbus, Mississippi 39705
To NBC: Mr. Lewis F. Mallory, Jr.
National Bank of Commerce of Mississippi
Post Office Box 1187
Starkville, Mississippi 39760
or to such other address as either Acquisition Parties or NBC may designate
by notice to the other.
10.2 Entire Agreement. This Agreement and the Exhibits, schedules and
documents delivered pursuant hereto constitute the entire contract between
the parties hereto pertaining to the subject matter hereof and supersede
all prior and contemporaneous agreements, understandings, negotiations and
discussions, whether written or oral, of the parties, and there are no
representations, warranties or other agreements between the parties in
connection with the subject matter hereof, except as specifically set forth
herein. No supplement, modification or waiver of this Agreement shall be
binding unless executed in writing by the parties to be bound thereby.
10.3 Governing Law. The validity and construction of this agreement shall
be governed by the laws of the state of Mississippi, and the venue and
jurisdiction of any action related to this agreement will be vested
exclusively in the Federal courts of the state of Mississippi.
10.4 Legal Fees and Costs. In the event either party elects to incur
legal expenses to enforce or interpret any provision of this Agreement, the
prevailing party will be entitled to recover such legal expenses,
including, without limitation, reasonable attorneys' fees, costs and
necessary disbursements, in addition to any other relief to which such
party shall be entitled.
10.5 Section Headings. The Section headings are for reference only and
shall not limit or control the meaning of any provision of this Agreement.
10.6 Waiver. No delay or omission on the part of any party hereto in
exercising any right hereunder shall operate as a waiver of such right or
any other right under this Agreement.
10.7 Exhibits. All Exhibits, Appendices, schedules and documents referred
to in or attached to this Agreement are integral parts of this Agreement as
if fully set forth herein and all statements appearing therein shall be
deemed to be representations. All items disclosed hereunder shall be
deemed disclosed only in connection with the specific representation to
which they are explicitly referenced.
10.8 Assignment. Except as specified in this Agreement, either party
hereto may assign this Agreement, including an assignment by NBC to an
affiliated company, and NBC or such affiliated company shall have the right
to collaterally assign the rights of NBC respecting remedies in the event
of breaches of Acquisition Parties' representations, warranties and
covenants and rights of indemnification hereunder to any financial
institution which finances its transactions.
10.9 Binding on Successors and Assigns. This Agreement shall inure to the
benefit of and bind the respective heirs, administrators, successors and
assigns of the parties hereto. Nothing expressed or referred to in this
Agreement is intended or shall be construed to give any person other than
the parties to this Agreement or their respective successors or permitted
assigns any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision contained herein, it being the intention
of the parties to this Agreement that this Agreement shall be for the sole
and exclusive benefit of such parties or such successors and assigns and
not for the benefit of any other person.
10.10 Amendments. This Agreement may be amended, but only in
writing, signed by all of the parties hereto.
10.11 Drafting Party. The provisions of this Agreement, and the
documents and instruments referred to herein, have been examined,
negotiated, drafted and revised by counsel for each party hereto and no
implication shall be drawn nor made against any party hereto by virtue of
the drafting of this Agreement.
10.12 Counterparts. This Agreement may be executed in any number of
counterparts, by facsimile or other electronic means, each of which shall
be an original, but all of which together shall comprise one and the same
instrument.
10.13 Reproduction of Documents. This Agreement and all documents
relating thereto, including without limitation, consents, waivers and
modifications which may hereafter be executed, the Exhibits and documents
delivered at the Closing, and financial statements, certificates and other
information previously or hereafter furnished to Purchaser may be
reproduced by Purchaser by any photographic, photostatic, microfilm,
microcard, miniature photographic or other similar process and Purchaser
may destroy any original documents so reproduced. Seller agrees and
stipulates that any such reproduction shall be admissible in evidence as
the original itself in any judicial or administrative proceeding (whether
or not the original is in existence and whether or not such reproduction
was made by Purchaser in the regular course of business) and that any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
10.14 Press Releases. Neither NBC nor the Acquisition Parties shall
release information concerning this Agreement and the transactions
contemplated hereby without the written consent of the other party. Each
of the parties to this Agreement shall furnish to the others drafts of all
releases prior to publication. Nothing contained in this Agreement shall
prevent any party to this Agreement at any time from furnishing any
information to any governmental body or agency.
10.15 Execution. This Agreement may be executed and delivered by
facsimile, and will be effective upon receipt of such facsimile signatures,
regardless of whether the original signatures are received by all parties.
10.16 Limitations. William R. Phillips, III, and T. L. Phillips
execute this Agreement solely for the purpose of committing themselves to
sell their ownership interest in GW, GCML, GCM and GCMA under the terms
expressed in this Agreement, and disclaim any representations, warranties
or covenants contained in Articles 2 and 5 of this Agreement and disclaim
any obligations lofor indemnity as expressed in Article 9 hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
GALLOWAY-WIGGERS AGENCY, INC.
By: /s/ James C. Galloway, Jr.
Its President
GALLOWAY-CHANDLER-McKINNEY
INSURANCE, INC.
By: /s/ James C. Galloway, Jr.
Its President
GALLOWAY-CHANDLER-McKINNEY
INSURANCE OF AMORY, INC.
By: /s/ Kyle Chandler, III
Its President
NAPIER INSURANCE AGENCY, INC.
By: /s/ Jack Campbell
Its President
KYLE CHANDLER INSURANCE AGENCY, INC.
By: /s/ Steve McKinney
Its President
/s/ James C. Galloway, Jr.
JAMES C. GALLOWAY, JR.
/s/ Kyle Chandler, III
KYLE CHANDLER, III
/s/ Steve McKinney
STEVE MCKINNEY
/s/ Jack Campbell
JACK CAMPBELL
/s/ William R. Phillips, III
WILLIAM R. PHILLIPS, III
/s/ T. L. Phillips
T. L. PHILLIPS
/s/ Steve Swedenberg
STEVE SWEDENBERG
/s/ Mary Margaret Swedenberg
MARY MARGARET SWEDENBERG
/s/ Cecil Vaughan, Jr.
CECIL VAUGHAN, JR.
NBC CAPITAL CORPORATION
/s/ Lewis F. Mallory, Jr.
Lewis F. Mallory, Jr.
Chairman of the Board and Chief Executive Officer
NATIONAL BANK OF COMMERCE
/s/ Lewis F. Mallory, Jr.
Lewis F. Mallory, Jr.
Chairman of the Board and Chief Executive Officer
