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 March 31, 2000.
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)
Registrant's telephone number, including area code: (662) 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 - 7,195,192 shares as of March 31, 2000.
PART I - FINANCIAL INFORMATION
NBC CAPITAL CORPORATION
CONSOLIDATED STATEMENTS OF INCOME FOR
THREE MONTHS ENDED MARCH 31, 2000 AND 1999
(Unaudited)
(Amounts in thousands, except per share data)
2000 1999
_______ _______
INTEREST INCOME:
Interest and Fees on Loans $13,787 $12,958
Interest And Dividends On Investment Securities 3,317 2,771
Other Interest Income 253 786
_______ _______
Total Interest Income 17,357 16,515
INTEREST EXPENSE:
Interest on Deposit 7,113 7,185
Interest on Borrowed Funds 835 492
_______ _______
Total Interest Expense 7,948 7,677
_______ _______
Net Interest Income 9,409 8,838
Provision for Possible Loan Losses 383 315
_______ _______
Net Interest Income After Provision for
Loan Losses 9,026 8,523
_______ _______
NON-INTEREST INCOME:
Income from Fiduciary Activities 376 330
Service Charge on Deposit Accounts 1,260 1,146
Insurance Commissions and Fee Income 897 1,006
Other Noninterest Income 959 833
_______ _______
Total Noninterest Income 3,492 3,315
Gains (Losses) on Securities 0 0
NON-INTEREST EXPENSE:
Salaries and Employee Benefits 3,672 4,071
Expense of Premises and Fixed Assets 1,088 1,131
Other Non-interest Expense 2,226 2,376
_______ _______
Total Noninterest Expense 6,986 7,578
_______ _______
Income Before Income Taxes 5,532 4,260
Applicable Income Taxes 1,643 836
_______ _______
NET INCOME $ 3,889 $ 3,424
======= =======
Net Earnings Per Share:
Basic $ 0.54 $ 0.48
Diluted $ 0.54 $ 0.48
NBC CAPITAL CORPORATION
CONSOLIDATED BALANCE SHEETS
Mar. 31, Dec. 31,
2000 1999
________ ________
(Unaudited) (Audited)
ASSETS:
Cash and Balances Due From Banks:
Noninterest -Bearing Balances $ 27,115 $ 80,288
Interest-bearing Balances 2,180 1,895
________ ________
Total Cash and Due From Banks 29,295 82,183
Held-To-Maturity Securities (Market value of
$34,739 at March 31, 2000 and $31,406 at
December 31, 1999) 33,279 29,824
Available-For-Sale Securities 207,969 200,456
________ ________
Total Securities 241,248 230,280
Federal Funds Sold and Securities Purchased
Under Agreement to Resell 16,510 201
Loans 630,378 623,751
Less: Reserve for Loan Losses (10,196) (10,194)
________ ________
Net Loans 620,182 613,557
Bank Premises and Equipment (Net) 16,121 16,757
Interest Receivable 8,875 8,847
Other Assets 20,421 21,745
________ ________
TOTAL ASSETS $952,652 $973,570
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Deposits:
Non-Interest Bearing $ 96,007 $ 92,506
Interest Bearing Deposits 674,940 660,304
________ ________
Total Deposits 770,947 752,810
Federal Funds Purchased and Securities Sold
Under Agreements to Repurchase 14,056 28,666
Other Borrowed Funds 41,828 66,857
Interest Payable 2,772 2,813
Other Liabilities 10,068 11,173
________ ________
TOTAL LIABILITIES 839,671 862,319
________ ________
Stockholders' Equity:
Common Stock $1 par Value, Authorized
10,000,000 shares, Issued 7,212,662 7,213 7,213
Surplus and Undivided Profits 109,413 107,255
Accumulated Other Comprehensive Income (3,066) (2,638)
Treasury Stock, at cost (579) (579)
________ ________
TOTAL STOCKHOLDERS' EQUITY 112,981 111,251
________ ________
TOTAL LIABILITIES & STOCKHOLDERS' EQUITY $952,652 $973,570
======== ========
NBC CAPITAL CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE THREE MONTHS ENDED MARCH 31, 2000 AND 1999
(Unaudited)
(Amounts in thousands)
2000 1999
________ ________
CASH FLOWS FROM OPERATING ACTIVITIES
Net Income $ 3,889 $ 3,424
Adjustments to Reconcile Net Income to Net Cash
Depreciation and Amortization 582 707
Deferred Income Taxes (Credits) 26 (22)
Provision for Loan Losses 383 357
Loss (Gain) on Sale of Securities 0 0
(Increase) Decrease in Interest Receivable (28) 852
(Increase) Decrease in Other Assets 1,376 162
Increase (Decrease) in Interest Payable (41) (217)
Increase (Decrease) in Other Liabilities (1,105) (2,774)
________ ________
Net Cash Provided by Operating Activities 5,082 2,489
CASH FLOWS FROM INVESTING ACTIVITIES
Proceeds from Maturities of Securities 2,496 28,479
Proceeds from Sale of Securities 0 0
Purchase of Securities (14,112) (36,599)
(Increase) Decrease in Loans (7,008) (3,337)
(Additions) Disposal of Bank Premises and
Equipment 196 (693)
Other Investing Activities 0 (165)
________ ________
Net Cash Used in Investing Activities (18,428) (12,315)
CASH FLOWS FROM FINANCING ACTIVITIES
Increase (Decrease) in Deposits 18,137 1,333
Dividend Paid on Common Stock (1,731) (473)
Increase (Decrease) in Borrowed Funds (39,639) (1,065)
Other Financing Activities 0 0
________ ________
Net Cash Provided by Financing Activities (23,233) (205)
________ ________
Net Increase (decrease) in Cash and Cash
Equivalents (36,579) (10,031)
Cash and Cash Equivalents at Beginning of Year 82,384 89,020
________ ________
Cash and Cash Equivalents at End of Quarter $ 45,805 $ 78,989
======== ========
Interest $ 7,989 $ 7,894
======== ========
Income Taxes $ - $ 705
======== ========
NBC CAPITAL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The accompanying unaudited consolidated financial statements include the
accounts of NBC Capital Corporation (NBC) 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.
As previously reported, during the quarter ended September 30, 1999, NBC
completed the acquisitions of FFBS Bancorp, Inc., the parent company for
First Federal Bank for Savings and Galloway-Chandler-McKinney Insurance
Agency, Inc. All the outstanding shares of the two companies were acquired
in exchange for shares of the Corporation's common stock.
These acquisitions were accounted for as poolings of interest. As a
result, Generally Accepted Accounting Principles required that the balances
and results of operations of these acquired companies be included in the
Balance Sheets and Statements of Income for NBC from the beginning of the
earliest period reported. Therefore, the 1999 Balance Sheet and Statement
of Income have been restated to include balances and results of Operations
for both FFBS Bancorp, Inc., and Galloway-Chandler-McKinney Insurance
Agency, Inc.
INDEPENDENT ACCOUNTANTS' REPORT
Board of Directors
NBC Capital Corporation
Starkville, Mississippi
We have reviewed the accompanying condensed consolidated balance sheet and
the related condensed consolidated statements of income and cash flows of
NBC Capital Corporation and consolidated subsidiaries as of March 31, 2000,
and for the three month period then ended. These financial statements are
the responsibility of the Company's management.
We conducted our review in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical
procedures to financial data and making inquiries of persons responsible
for financial and accounting matters. It is substantially less in scope
than an audit conducted in accordance with generally accepted auditing
standards, the objective of which is the expression of an opinion regarding
the financial statements taken as a whole. Accordingly, we do not express
such an opinion.
Based on our review, we are not aware of any material modifications that
should be made to the accompanying financial statements for them to be in
conformity with generally accepted accounting principles.
We have previously audited, in accordance with generally auditing
standards, the consolidated balance sheet as of December 31, 1999, and the
related consolidated statements of income, stockholders' equity, and cash
flows for the year then ended (not presented herein) and in our report
dated January 21, 2000, we expressed an unqualified opinion on those
consolidated financial statements. In our opinion, the information set
forth in the accompanying condensed consolidated balance sheet as of
December 31, 1999, is fairly stated, in all material respects, in relation
to the consolidated balance sheet from which it has been derived.
/S/ T. E. LOTT & COMPANY
Columbus, Mississippi
May 5, 2000
PART I. ITEM 2
MANAGEMENT'S DISCUSSION AND ANALYSIS
MARCH 31, 2000
RESULTS OF OPERATIONS
First quarter of 2000 compared to the first quarter of 1999
Earnings for the first quarter of 2000 increased by 13.6% to $3.89 million
or $.54 per share. This compares to $3.42 million or $.48 per share for the
first quarter of 1999. These 2000 totals equate to a 1.6% return on
average assets and a 13.9% return on average equity. For this same period
in 1999, return on average assets was 1.5% and return on average equity was
12.1%.
Net interest income for the first quarter of 2000 was $9.41 million
compared to $8.84 million for 1999. This represents an increase of 6.4%.
This increase resulted from a twenty-one basis point increase in the net
interest margin and a $400,000 increase in average earning assets.
Non-interest income grew 6.5% resulting from a 13.9% increase in income
from the Company's Trust and Financial Management activities and a 9.9%
increase in income from deposit accounts. Additionally, other non-interest
income increased by $162,000 or 20.3% while insurance commissions and fee
income declined by $109,000 or 10.8%. The change in other non-interest
income is made up of small changes in several of the accounts included in
this category. The change in insurance commission and fee income relates
directly to the volume of insurance product sold during these periods.
Non-interest expenses decreased 7.8% for the period reported. This
decrease resulted from a 9.8% decrease in salaries and employment benefits,
a 3.8% decrease in the expenses associated with premises and fixed assets
and a 6.3% decrease in other non-interest expenses. These decreases are
primarily the result of efficiencies gained as the acquisitions made during
1999 have been absorbed into the organization over the last six months.
FINANCIAL CONDITION
The Company's balance sheet shows a decrease in total assets from $974
million to $953 million during the first quarter of 2000. During this
period, deposits increased by $18 million. During this same period, the
Federal Home Loan Bank borrowings and Securities Sold Under Agreements to
Repurchase decreased $25.0 million and $14.6 million, respectively. These
changes resulted in a net decrease in available funds. Also during this
period, Fed Funds Sold increased by $16.3 million, the investment
securities portfolio increased by $11.0 million and net loans increased by
$6.6 million. The funds for these changes came from a redeployment of cash
reserves that were on hand at December 31, 1999, in anticipation of
potential customer demand relating to Y2K, which did not materialize. Loan
quality remains good. At the end of the first quarter, the ratio of
non-performing loans to total loans remained low at .38%. Management is
committed to not relaxing its underwriting standards.
Shareholders' equity increased from $111.2 million to $113.0 million during
the first quarter of 2000. This represented a 1.6% 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 component of Shareholders' Equity
decreasing from an unrealized loss of $2,638,000 at December 31, 1999, to
an unrealized loss of $3,066,000 at March 31, 2000. Also, during the first
quarter of the year the Company declared a dividend of approximately
$1,731,000, payable on April 3, 2000.
The Company's bank subsidiary is required to maintain a minimum amount of
capital to total risk weighted assets as defined by the banking regulators.
At March 31, 2000, the bank's 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 bank. Under the regulations controlling national banks, the
payment of dividends by the bank 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 March
31, 2000, this amounted to approximately $12.7 million. Also, under
regulations controlling national banks, the bank is limited in the amount
it can lend to the Company and such loans are required to be on a fully
secured basis.
YEAR 2000 COMPLIANCE
All the dates that were identified as critical that have already passed
have not caused the Corporation any problems. However, management will
continue to monitor the remainder of the identified dates until they pass.
The dates that remain to be monitored are December 31, 2000 and January 1,
2001. Based on the fact that all of the critical dates have passed without
any significant problems and the fact that the contingency plans
established are still in place, management is of the opinion that the
remaining critical dates will pass without material incident. Although
this is Management's opinion, there are no guarantees and actual results
could differ materially from planned results.
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
National Bank of Commerce is a defendant in a legal action
involving the placement of collateral protection insurance
(CPI). The litigation is a class action brought on behalf of
"borrowers of National Bank of Commerce" who were charged for
CPI premiums. The Bank intends to vigorously defend its
position. Because the ultimate outcome of this legal matter
cannot be predicted with any certainty, management is unable
to determine the estimated loss or costs, if any, related to
this litigation and, therefore, no provision for an anticipated
loss has been provided for in the accompanying financial
statements.
Item 2. Changes in Securities
None
Item 3. Defaults Upon Senior Debt
None
Item 4. Submission of Matters to a Vote of Security Holders
The 2000 Annual Meeting of Shareholders was held on April 11, 2000. The
only item submitted for shareholder vote was the election of directors.
Since the proxies were solicited under Regulation 14A, there were no
solicitations in opposition to the Board of Directors' nominees and all
nominees were elected, no additional information is required to be
disclosed.
Item 5. Other Information
On April 7, 2000, NBC Capital Corporation entered into a Merger
Agreement with Heritage Insurance Agency, LTD. Heritage, which is located
in Starkville, Mississippi, offers a full array of insurance services.
Heritage was acquired for a combination of cash and Common Stock of NBC
Capital Corporation. The transaction was accounted for as a purchase. The
transaction was completed as of the close of business on April 28, 2000.
Subsequent to the closing, Heritage became part of Galloway-Chandler-
McKinney Insurance Agency, Inc., a wholly-owned subsidiary of National Bank
of Commerce, which is a wholly-owned subsidiary of NBC Capital Corporation.
The transaction was accounted for as a purchase.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
11 Statement re computation of per-share earnings
27 Financial Data Schedule
99.1 Press Release regarding the acquisition of Heritage
Insurance Agency, LTD. by NBC Capital Corporation,
dated April 11, 2000.
99.2 Press Release reporting First Quarter Earnings of NBC
Capital Corporation and disclosing its successful
listing on the American Stock Exchange.
99.3 Merger Agreement between NBC Capital Corporation and
Heritage Insurance Agency, LTD.
(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 operations
for the three month period ended March 31, 2000, have been included.
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
May 10, 2000 /s/ Richard T. Haston
Date Richard T. Haston
Executive Vice President,
Chief Financial Officer and
Treasurer
Exhibit 11
Statement re computation of per-share earnings
Basic per share data is calculated based on the weighted-average number of
common shares outstanding during the reported period. Diluted per share
data includes any dilution from potential common stock outstanding, such
as the exercise of stock options.
Three Months Ended
March 31,
2000 1999
__________ __________
Numerator:
Net income(loss) $3,889,000 $3,424,000
========== ==========
Denominator:
Denominator for basic income (loss)
per share - weighted average shares 7,195,192 7,169,563
Dilutive potential common shares -
employee stock options 5,966 31,115
__________ __________
Denominator for diluted earnings (loss)
per share - adjusted weighted average shares 7,201,158 7,200,678
========== ==========
<TABLE> <S> <C>
<ARTICLE> 9
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-END> MAR-31-2000
<CASH> 27,115
<INT-BEARING-DEPOSITS> 2,180
<FED-FUNDS-SOLD> 16,510
<TRADING-ASSETS> 0
<INVESTMENTS-HELD-FOR-SALE> 207,969
<INVESTMENTS-CARRYING> 33,279
<INVESTMENTS-MARKET> 34,739
<LOANS> 630,378
<ALLOWANCE> 10,196
<TOTAL-ASSETS> 952,652
<DEPOSITS> 770,947
<SHORT-TERM> 14,056
<LIABILITIES-OTHER> 12,840
<LONG-TERM> 41,828
0
0
<COMMON> 7,213
<OTHER-SE> 105,768
<TOTAL-LIABILITIES-AND-EQUITY> 952,652
<INTEREST-LOAN> 13,787
<INTEREST-INVEST> 3,317
<INTEREST-OTHER> 253
<INTEREST-TOTAL> 17,357
<INTEREST-DEPOSIT> 7,113
<INTEREST-EXPENSE> 7,948
<INTEREST-INCOME-NET> 9,409
<LOAN-LOSSES> 383
<SECURITIES-GAINS> 0
<EXPENSE-OTHER> 6,986
<INCOME-PRETAX> 5,532
<INCOME-PRE-EXTRAORDINARY> 3,889
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,889
<EPS-BASIC> 0.54
<EPS-DILUTED> 0.54
<YIELD-ACTUAL> 4.30
<LOANS-NON> 615
<LOANS-PAST> 1,859
<LOANS-TROUBLED> 25
<LOANS-PROBLEM> 0
<ALLOWANCE-OPEN> 10,194
<CHARGE-OFFS> 498
<RECOVERIES> 117
<ALLOWANCE-CLOSE> 10,196
<ALLOWANCE-DOMESTIC> 383
<ALLOWANCE-FOREIGN> 0
<ALLOWANCE-UNALLOCATED> 0
</TABLE>
Exhibit 99.1
Press Release Regarding the Acquisition of Heritage Insurance Agency, Ltd.
by NBC Capital Corporation, Dated April 11, 2000
For Immediate Release Contact: Richard Haston
April 11, 2000 (662) 324-4258
Bryna Martin
(662) 324-4741
NBC CAPITAL CORPORATION ANNOUNCES ACQUISITION OF
HERITAGE INSURANCE AGENCY
STARKVILLE--NBC Capital Corporation ("NBC") of Starkville, Mississippi, the
holding company for National Bank of Commerce, executed a definitive
agreement today to acquire Heritage Insurance Agency. This transaction is
expected to close on April 28, 2000, subject to regulatory approval.
Subsequent to the closing, Heritage Insurance will operate as part of
Galloway-Chandler-McKinney ("GCM"), a wholly owned subsidiary of National
Bank of Commerce. Heritage Insurance, located in Starkville, offers a full
array of services, including auto, home, life, health and commercial
insurance.
"We are indeed pleased to add these insurance services in Starkville,
keeping with the company's goal of becoming a full financial services
provider," states Lewis F. Mallory, Jr., chairman and chief executive
officer of NBC. "With the addition of this agency, we will now be able to
better serve the Starkville community in commercial and personal insurance
services."
Pat Permenter CPCU, president of Heritage Insurance, is the principal owner
of this agency and will remain in charge of the Starkville agency after the
transaction is completed.
"We are pleased to join GCM, the largest insurance agency in the Golden
Triangle," says Permenter. "The same people at Heritage Insurance will
continue to the meet the needs of the Starkville area, but we will offer
additional products and services to the community."
Jimmy Galloway, president of GCM, says the agency is excited about the
acquisition of Heritage Insurance.
"This acquisition will allow GCM, as well as NBC, to reach our goal of
expanding the insurance services market into the Starkville area," states
Galloway. "We believe that Heritage Insurance, like us, shares a total
commitment to customer service, and we are happy to have this organization
join us."
Exhibit 99.2
Press Release Reporting First Quarter Earnings of NBC Capital Corporation
and Disclosing its Successful Listing on the American Stock Exchange.
Contact: Richard T. Haston For Immediate Release
(662) 324-4258 April 25, 2000
NBC CAPITAL CORPORATION REPORTS FIRST QUARTER EARNINGS
NBC Capital Corporation, the holding company for National Bank of Commerce,
has released consolidated earnings information for the first quarter 2000
reflecting a return on average assets and average equity of 1.6% and 13.9%,
respectively. Net income of $3.9 million compares to $3.4 million for the
first quarter of 1999, which represents an increase of 14%. First quarter
earnings per share were $.54 for 2000 compared to $.48 for the same quarter
of 1999.
The Company's total assets at March 31, 2000 were $953 million compared to
$939 million at March 31, 1999. Shareholders' equity was $113.0 million
and $114.9 million at March 31, 2000, and 1999, respectively. Book value
per share was $15.71 at March 31, 2000, compared to $15.94 at March 31,
1999.
NBC Capital Corporation completed its acquisitions of FFBS Bancorp, Inc.,
and Galloway-Chandler-McKinney Insurance Agency, Inc., as of the close of
business on August 31, 1999 and September 30, 1999, respectively. These
transactions were accounted for as poolings of interest. As a result of
the accounting treatment, the 1999 amounts have been restated to reflect
the merged companies as if the acquisitions had taken place on the first
day of 1999.
On April 7, 2000, as previously reported, NBC Capital Corporation entered
into a Definitive Agreement to acquire Heritage Insurance Agency in
exchange for shares for its own common stock and cash. The transaction is
expected to close April 28, 2000.
On April 20, 2000, NBC Capital Corporation listed its common stock on the
American Stock Exchange. The ticker symbol is NBY. This listing will make
it easier for NBC shareholders to buy and sell the company's stock.
"The public listing of the NBC stock is expected to increase the
marketability of the company's shares and provide increased liquidity to
shareholders," states Lewis F. Mallory, Jr., Chairman and Chief Executive
Officer of NBC.
EXHIBIT 99.3
MERGER AGREEMENT BETWEEN NBC CAPITAL CORPORATION AND HERITAGE INSURANCE
AGENCY, LTD.
This Merger Agreement ("Agreement") is executed this 7th day of April,
2000, by and between Heritage Insurance Agency, Ltd.("HIA"), a Mississippi
Corporation, NBC Capital Corporation ("NBCCC"), a Mississippi Corporation,
and National Bank of Commerce ("NBC"), a National Banking Association.
RECITALS
WHEREAS, the respective Boards of Directors have approved the acquisition
of HIA by NBC and deem the merger of HIA with and into NBC with NBC
surviving, as provided herein ("the Merger") advisable and in the best
interest of their respective corporations and shareholders; and
WHEREAS, the respective Boards of Directors have duly adopted resolutions
approving this Agreement, and the Board of Directors of HIA has directed
that it be submitted for required shareholder approval; and
WHEREAS, the parties desire and intend that the Merger qualify for federal
income tax purposes as a reorganization under Section 368 (a) of the
Internal Revenue Code of 1986, as Amended ("Code") and the regulations
thereunder, and that this Agreement shall constitute a "plan of merger" for
purposes of Section 368 of the Code; and
WHEREAS, the parties respectively desire to have certain representations,
warranties and covenants made with respect to the Merger.
NOW, THEREFORE, in order to prescribe (a) the terms and conditions of the
Merger, (b) the mode of carrying the same into effect, (c) the manner and
basis for converting and exchanging the common shares of HIA into the right
to receive common shares of capital stock of NBCCC ("NBCCC Common Stock"),
and (d) such other provisions as are deemed necessary, these parties hereby
agree as follows:
ARTICLE I
The Merger: Effective Time
1.1 The Merger. Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined in Section 1.3 hereof), HIA
shall be merged with and into NBC and the separate corporate existence of
HIA shall then cease. NBC shall be the surviving corporation in the Merger
and shall continue to be governed by the laws of the State of Mississippi,
and the corporate existence of GCM shall continue with the effects
specified by the Mississippi Business Corporation Act ("MBCA"). As a part
of this transaction, the assets acquired by NBC shall be transferred to
Galloway-Chandler-McKinney Insurance Agency, Inc., a wholly owned
subsidiary of NBC ("GCM"), pursuant to I.R.C. Sec. 368(a)(2)(C).
1.2 Effects of Merger. On the closing, the separate existence
and corporate organization of HIA shall cease and all of its purposes,
powers and objects, and all of its rights, assets, liabilities and
obligations, shall pass to and vest in NBC as the surviving corporation
without any conveyance or transfer, and NBC as the surviving corporation
shall continue to be governed by the laws of the State of Mississippi and
shall also succeed to all assets, rights, privileges, immunities and
franchises of HIA in accordance with the MBCA. It is expressly
acknowledged and agreed that NBC will not assume and shall not be liable,
either expressly or impliedly, for any of the liabilities of HIA of any
kind or nature other than those contained in its books and records and
disclosed to NBC on Exhibit 1.2.
1.3 Effective Time. The Effective Time of the Merger shall be
the time and date set forth in the certificate of merger issued by the
Secretary of State of the State of Mississippi pursuant to the MBCA.
1.4 Basic Terms. The total consideration for the Merger is
$350,862.31, to be adjusted as set forth below, (the "Merger
Consideration"). The Merger Consideration is determined by increasing the
base consideration of $313,500.00 by the amount of additional capital, not
to exceed $50,000.00, required to be contributed to HIA prior to closing to
increase shareholder equity to $0.00. The additional capital has been
determined as of April 6, 2000, to be $37,362.31. Prior to closing, T. E.
Lott & Company shall certify to the parties the final determination of
additional capital required, and the Merger Consideration and Conversion
Ratio shall be increased or decreased based upon such certification. Each
Share of HIA Common Stock issued and outstanding at the Effective Time
shall be converted into and become exchangeable for (i) cash payment of
$940.50 and (ii) the number of shares of NBCCC Common Stock equal to the
Conversion Ratio. In this Agreement, the term "Conversion Ratio" means a
fraction, the numerator of which is equal to (i) $303,837.31 divided by
(ii) the average per share closing price of NBCCC Common Stock, as quoted
by the Over-the-Counter Bulletin Board, for the 20 trading day period
ending one day prior to the Effective Time ("Valuation Price"); and the
denominator of which is equal to the number of shares of HIA issued and
outstanding as of the date of this Agreement. Each issued and outstanding
share of NBC shall continue unchanged and remain outstanding as a share of
common stock of the surviving corporation.
HIA represents that, as of the date herein, 50 shares of HIA Common
Stock (par value of $100.00) are outstanding.
1.5. Exchange Procedures. (a) At or prior to the Effective Time,
NBC shall deposit, or shall cause to be deposited, with SunTrust Bank,
Atlanta (the "Exchange Agent"), for the benefit of the holders of
certificates of HIA Common Stock for exchange in accordance with this
Article I, certificates representing the shares of NBCCC Common Stock and
an estimated amount of cash to be paid in lieu of fractional shares to be
paid pursuant to this Article I in exchange for outstanding shares of HIA
Common Stock.
(b) Holders of record of certificates which immediately prior to the
Effective Time represented outstanding shares of HIA Common Stock (the
"Certificates") shall be instructed to tender such Certificates to the
Exchange Agent and shall thereupon be entitled to a certificate or
certificates representing the number of whole shares of NBCCC Common Stock
into which the shares represented by the Certificate(s) so surrendered
(aggregating all Certificates surrendered by such holder) shall have been
converted pursuant to this Agreement and a check representing the amount of
any cash in lieu of fractional shares, if any, and dividends and
distributions, if any, which such holder has the right to receive hereunder
with respect to the Certificate(s) so surrendered, in each case after
giving effect to any required withholding tax. Certificates shall be
appropriately endorsed or accompanied by such instruments of transfer as
the Exchange Agent may reasonably require.
(c) All shares of NBCCC Common Stock issued upon surrender of
Certificates in accordance with the terms hereof (including any cash paid
pursuant to this Article I) shall be deemed to have been in full
satisfaction of all rights pertaining to such shares of HIA Common Stock
represented thereby. After the Effective Time, holders of Certificates
shall cease to have rights with respect to the shares previously
represented by such Certificates, and their sole rights shall be to
exchange such Certificates for the consideration provided for in this
Agreement.
(d) Notwithstanding any other provisions of this Agreement, no
dividends or other distributions declared or made after the Effective Time
with respect to NBCCC Common Stock having a record date after the Effective
Time shall be paid to the holder of any unsurrendered Certificate, and no
cash payment in lieu of fractional shares shall be paid to any such holder,
until the holder shall surrender such Certificate as provided in this
Section 1.5. Subject to the effect of applicable laws, following surrender
of any such Certificate, there shall be paid to the holder of the
certificates representing whole shares of NBCCC Common Stock issued in
exchange therefor, without interest, (i) at the time of such surrender, the
amount of dividends or other distributions with a record date on or after
the Effective Time theretofore payable with respect to such whole shares of
NBCCC Common Stock and not paid, less the amount of any withholding taxes
which may be required thereon, and (ii) at the appropriate payment date
subsequent to surrender, the amount of dividends or other distributions
with a record date on or after the Effective Time but prior to surrender
and a payment date subsequent to surrender payable with respect to such
whole shares of NBCCC Common Stock, less the amount of any withholding
taxes which may be required thereon.
1.6. No Fractional Shares. Notwithstanding any other provision
of this Agreement, neither certificates nor scrip for fractional shares of
NBCCC Common Stock shall be issued in the Merger. Each holder who
otherwise would have been entitled to a fraction of a share of NBCCC Common
Stock shall receive in lieu thereof cash (without interest) in an amount
determined by multiplying the fractional share interest to which such
holder would otherwise be entitled by the Valuation Price. No such holder
shall be entitled to dividends, voting rights or any other rights in
respect of any fractional share.
1.7 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 reorganization
under Section 368 of the Internal Revenue Code and the regulations
thereunder. Appropriate filings shall be made with regulatory agencies as
required.
1.8 Subsequent Actions. If, at any time after the Effective Time, NBC
shall deem that any documents or other actions are appropriate to confirm
title or rights with respect to any property of HIA in connection with this
Merger, the Officers and Directors of NBC are authorized to execute and
deliver such documents in the name of NBC and/or HIA and take all such
other actions considered appropriate to consummate this Agreement.
1.9 Reservation of Right to Revise Transaction. NBC may at any time
change the method of effecting the acquisition of HIA by NBC, and HIA shall
cooperate in such efforts, if and to the extent NBC deems such change to be
desirable; provided, however, that no such change shall (A) alter or change
the Merger Consideration, (B) adversely affect the tax treatment to HIA's
shareholders as a result of receiving the Merger Consideration or (C)
materially delay the consummation of the transactions contemplated by this
Agreement.
ARTICLE II
Articles of Incorporation and By-Laws
of the Surviving Corporation
2.1 Articles of Incorporation. The Articles of Incorporation of NBC,
as in effect immediately prior to the Effective Time, shall be the Articles
of Incorporation of the Surviving Corporation, unless and until duly
amended in accordance with the terms thereof and MBCA.
2.2 By-Laws. The By-Laws of NBC, as in effect immediately prior to
the Effective Time, shall be the By-Laws of the Surviving Corporation
unless and until duly amended in accordance with the terms thereof and the
MBCA. No amendments to the Articles or By-Laws are contemplated at the
present time.
ARTICLE III
Officers and Directors of the Surviving Corporation
3.1 Directors. The Directors of NBC, immediately prior to the
Effective Time shall be, from and after the Effective Time, the Directors
of the Surviving Corporation until their respective successors have been
duly elected or appointed and qualified or until their earlier death,
resignation or removal.
3.2 Officers. The Officers of NBC, immediately prior to the Effective
Time shall become the Officers of the Surviving Corporation together with
such present officers of HIA who may be duly appointed as additional
officers of the Surviving Corporation.
ARTICLE IV
Representation and Warranties of HIA
HIA hereby makes the following representations and warranties to NBC:
4.1 Organization, Corporate Power and Qualification. HIA is duly
organized, validly existing and in good standing under the laws of the
State of Mississippi and is duly qualified to do business in each
jurisdiction in which such corporation conducts business. HIA has the
requisite power and authority to enter into and carry out the transactions
contemplated by this Agreement.
4.2 Disclosures. Any disclosure, other document, schedule or financial
statements provided by HIA to NBC are true, complete and accurate, have
been based upon the information contained in its books and records and
present fairly its assets, liabilities and financial condition as at the
respective dates thereof and the results of its operations for the periods
ended at the respective dates thereof, in each case prepared in conformity
with GAAP applied on a consistent basis throughout the periods involved and
with prior periods. All notes and accounts receivable shown on the balance
sheet of HIA are valid receivables and current assets and are not subject
to any valid counterclaim or set off. As of the Closing date, HIA 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 its latest balance sheet 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.
4.3 Legal Proceedings. To the knowledge of HIA, 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 HIA, threatened, against or
relating to the business or relating to the transactions contemplated by
this Agreement.
4.4 Capitalization. The authorized capital stock of HIA consists of
Fifty (50) shares of common stock. At the close of business on
April 6, 2000, there were Fifty (50) shares of such stock issued and
outstanding. All issued and outstanding shares of HIA common stock have
been duly authorized and validly issued and are fully paid, non-assessable
and free of preemptive rights with no personal liability attached to the
ownership thereof.
4.5 Authority; No Violation. (a) HIA has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. These actions have been duly and validly
approved by the Board of Directors and Shareholders of HIA.
(b) Neither the execution and delivery of this Agreement by HIA nor the
consummation by HIA of the transaction contemplated hereby, nor compliance
by HIA with any provision hereof, will (i) violate any provision of the
Certificate of Incorporation or By-Laws of HIA or (ii) violate any statute,
code, ordinance, rule, regulation, judgment, order, writ, decree or
injunction applicable to HIA or affecting its properties or assets, or
(iii) violate, conflict with, result in a breach of any provision of,
constitute a default under, result in the termination of, accelerate the
performance required by, or result in the creation of any lien, security
interest, charge or other encumbrance upon any such asset of HIA.
4.6 Consent and Approvals. To the best of the knowledge of the HIA
officers and board, no permit, consent, approval or authorization of, or
declaration, filing or registration with, any public body or authority is
necessary in connection with this Agreement, its consummation, the transfer
of HIA assets to NBC and the conduct by NBC of all business now conducted
by HIA.
4.7 No Broker's or Finder's Fees. No agent, broker, investment
banker, person or firm acting on behalf or under authority of HIA is or
will be entitled to any broker's or finder's fee or any other commission or
similar fee directly or indirectly in connection with the or any other
transaction contemplated hereby.
4.8 Compliance with Law. To the knowledge of HIA, HIA has been in
compliance in all respects with all applicable laws, except where such
non-compliance would not have, in the aggregate, a material adverse effect
on HIA, and HIA has not received notice from any governmental authority of
any material violation of, and does not know of any material violations of,
any applicable law.
4.9 Employee Benefits. (a) Except as disclosed to NBC, HIA maintains,
contributes to or sponsors no funded deferred compensation plans (including
profit sharing, pension, savings or stock bonus plans), unfunded deferred
compensation arrangements or employee benefit plans as defined in Section
3(3) of ERISA. Except as disclosed to NBC, HIA (i) provides no health,
medical, death or survivor benefits to any former employee or beneficiary
thereof, or (ii) maintains any form of current (exclusive of base salary
and base wages) or deferred compensation, bonus, stock option, stock
appreciation right, severance pay, retirement, incentive, group or
individual health insurance, welfare or similar plan or arrangement for the
benefit of any single or class of directors, officers or employees, whether
active or retired.
4.10 Information Furnished. To the best knowledge of HIA, no statement
contained in any schedule, certificate or other document furnished or to
be furnished in writing by or on behalf of HIA or any of its affiliates to
NBC pursuant to this Agreement (whether prior to or subsequent to the date
of this Agreement) contains or will contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
4.11 Tax Matters. HIA has duly and properly filed all federal, state,
local and other tax returns required to be filed by it and have made timely
payments of all taxes due and payable, whether disputed or not; such tax
returns are true, correct and complete in all material respects; the
current status of audits of such tax returns by the IRS and other
applicable agencies has been previously disclosed; and there is no
agreement by HIA for the waiver or extension of time for the assessment or
payment of any taxes payable. Neither the IRS nor any other taxing
authority is now asserting or, to the best knowledge of HIA, threatening to
assert any deficiency or claim for additional taxes, nor to the knowledge
of HIA is there any basis for any such assertion or claim. HIA has
complied in all material respects with applicable IRS backup withholding
requirements and have filed all appropriate information reporting returns
for all tax years for which the statute of limitations has not closed. HIA
has complied with all applicable state law sales and use tax collection and
reporting requirements.
4.12 Environmental Matters. To the knowledge of HIA, HIA owns or leases
no properties affected by toxic waste. HIA has no knowledge of, nor has
HIA received written notice from any governmental authority of, any
conditions, activities, practices or incidents which are reasonably likely
to interfere with or prevent compliance or continued compliance by HIA with
hazardous substance laws or any regulation, order, decree, judgment or
injunction, issued, entered, promulgated or approved thereunder, or which
may give rise to any common law or legal liability on the part of HIA, or
otherwise form the basis of any claim, action, suit, proceeding, hearing or
investigation against or of HIA, based on or related to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling, or the emission, discharge, release or threatened release into
the environment, of any pollutant, contaminant or chemical, or industrial,
toxic or hazardous substance or waste. There is no civil, criminal or
administrative claim, action, suit, proceeding, hearing or investigation
pending or, to the best knowledge of HIA, threatened against HIA relating
in any way to such hazardous substance laws or any regulation, order,
decree, judgment or injunction issued, entered, promulgated or approved
thereunder.
4.13 Insurance. A schedule of all fire, life, liability and other
insurance policies in effect as to HIA (the "Insurance Policies") has been
previously disclosed to NBC. The Insurance Policies are in full force
and effect, all premiums with respect thereto covering all periods up to
and including the date of this Agreement have been paid, such premiums
covering all periods from the date hereof up to and including the Effective
Date shall have been paid on or before the Effective Date, to the extent
then due and payable (other than retrospective premiums which may be
payable with respect to worker's compensation insurance policies, adequate
reserves for which are reflected in HIA's financial statements). The
Insurance Policies are valid, outstanding and enforceable in accordance
with their respective terms and will not in any way be affected by, or
terminated or lapsed solely by reason of, the transactions contemplated by
this Agreement. On or after the Effective Time, the Insurance Policies may
be canceled in the discretion of NBC, and in such event, any returned or
unearned premium will thereupon become the property of NBC.
4.14 Accounting and Tax Treatment. HIA has not agreed to take any
action or taken or failed to take any action the result of which would (but
without giving effect to any actions taken or agreed to be taken by NBC)
prevent the Merger from qualifying as a "reorganization" under Section
368(a) of the Code.
4.15 Year 2000 Readiness. HIA has taken all reasonable steps necessary
to address the computer software, accounting and record keeping issues
raised in order for the data processing systems used in the business
conducted by it to be substantially Year 2000 compliant on or before the
end of 1999, and HIA does not expect the future cost of addressing such
issues to be material.
ARTICLE V
Representations and Warranties of NBCCC and NBC
NBCCC and NBC represent and warrant to HIA as follows:
5.1 Organization, Corporate Power and Qualification. As a material
inducement to HIA to enter into this Agreement, NBCCC and NBC hereby
jointly and severally represent and warrant that each of the corporations
is duly organized, validly existing and in good standing under the laws of
the State of Mississippi or the United States of America and qualified to
do business in the jurisdictions in which it owns property or does
business. This Agreement and each transaction document related thereto to
which NBCCC and NBC are or become parties shall constitute valid and
binding obligations of such corporations which are 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 they are parties or a violation of any
regulatory provision applicable to such corporations.
5.2 Authority; No Violation. NBCCC and NBC have full corporate power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. 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.
5.3 No Broker's or Finder's Fees. No agent, broker, investment
banker, person or firm acting on behalf or under authority of NBCCC or NBC
is or will be entitled to any broker's or finder's fee or any other
commission or similar fee directly or indirectly in connection with the
Merger or any other transaction contemplated hereby.
5.4 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.
ARTICLE VI
Covenants of the Parties
6.1 Exclusive Dealings. HIA shall not authorize or permit any of
its officers, directors, employees or agents to directly or indirectly
solicit, initiate, facilitate or encourage any inquiries relating to, or
the making of any proposal which constitutes a tender or exchange offer,
proposal for merger, consolidation or any other business combination
involving HIA, or any proposal or offer to inquire in any manner a
substantial equity interest in, or a substantial portion of the assets of
HIA other than the transaction contemplated or permitted by this Agreement,
or participate in any discussions or negotiations, or provide third parties
with any non-public information, relating to any inquiry or proposal or
otherwise facilitate any effort or attempt to make a takeover proposal.
6.2 Conduct of Business. During the period from the date of this
Agreement to the Effective Time, HIA will conduct its business and engage
in transactions only in the ordinary course and consistent with prudent
practices. HIA will operate its business in substantially the same manner
as before this Agreement, and will maintain and keep its property in good
repair and properly insured. HIA will not, without the prior express
consent of NBC (which will not be unreasonably withheld):
(a) Pay any dividends prior to the Effective Time;
(b) Hire new, additional or replacement employees;
(c) Grant promotions to current employees;
(d) Make, incur, or agree to incur, any single capital expenditure which
alone exceeds $3,000.00;
(e) Pay, or agree to pay, any bonus to any employee, officer or director;
(f) Grant any raise or salary increase to any employee, officer, or
director;
(g) Enter into any contracts, contract renewals or extensions;
(h) Purchase, lease, encumber or sell any assets outside the normal course
of business;
(i) Cancel, or fail to continue, any insurance coverages;
(k) Cause any change in capitalization due, without limitation, to the
issuance any additional shares of stock of any class, subscriptions,
options, warrants, rights, calls agreements or commitments affecting in any
manner whatsoever any equitable interest in HIA;
(l) Declare any stock dividend or stock split;
(m) Establish any employee benefits in addition to those in effect on the
date of this Agreement, as disclosed heretofore to NBC;
(n) Acquire, or agree to acquire, any new companies or lines of insurance
business; and
(o) Incur any indebtedness.
6.3 Current Information. During the period from the date of this
Agreement to the Effective Time, HIA will cause designated representatives
to confer on a regular and frequent basis with representatives of NBC to
report the general status of its ongoing operations. HIA will promptly
notify NBC of any material change in the normal course of its business or
in the operation of its properties and of any governmental complaints,
investigations or hearings or any indication that such may be contemplated,
or the institution or threat of litigation, and will keep NBC fully
informed with respect to all such events.
6.4 Unusual Events. Until the Effective Time, HIA and NBC shall
supplement or amend all relevant schedules with respect to any matter
arising or discovered, which if existing or known at this date would have
been required to be disclosed; provided, however, that subsequent
disclosure shall not necessarily be deemed to have cured any
misrepresentation or breach by concealment thereof.
6.5 HIA Employees. All HIA employees will continue to serve at the
discretion of NBC.
6.6 Employee Benefit Plans. The HIA group life and health plans will
be terminated on or before the Effective Time, and HIA employees who
continue to serve as employees of NBCCC or NBC shall be afforded
participation in NBC plans to the same extent as similarly situated NBCCC
or NBC employees as permitted by the plans and by ERISA. Upon Entry into
the NBC plans, HIA employees shall be credited for vesting purposes with
the number of years of service for which they have been full-time employees
of HIA. Funding for HIA employees will commence upon entry into NBC plans
with no funding for prior years of service with HIA.
6.7 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.
6.8 Tax-Free Treatment. Each of the parties hereto shall use
its reasonable best efforts to cause the Merger to constitute a
"reorganization" under Section 368(a) of the Code.
ARTICLE VII
Closing Conditions
7.1 Conditions to Each Party's Obligations Under this Agreement. The
respective obligations of each party under this Agreement shall be subject
to the fulfillment at or prior to the Effective Time of the following
conditions:
(a) This Agreement and the transaction contemplated hereby shall have been
approved and adopted by the affirmative vote of the holders of the
outstanding shares of HIA.
(b) 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 the Merger.
(c) NBC and HIA 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 reorganization within the meaning of Section 368 of the
Code and that no gain or loss will be recognized by HIA shareholders in the
Merger except in connection with cash received by HIA shareholders.
(d) All permits, consents, waivers, clearances, approvals, and
authorizations of all third parties, including but not limited to consents
of insurance carriers for which HIA acts as issuing agent, HIA software
licensors, 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.
7.2 Conditions Precedent to the Obligations of NBC. The obligations
of NBC under this Agreement shall be further subject to the satisfaction,
at or prior to the Effective Time of the following conditions, any one or
more of which may be waived by NBC:
(a) Each of the obligations of HIA required to be performed by it at or
prior to the closing pursuant to the terms of this Agreement shall have
been duly performed and complied with and the representations and
warranties of HIA contained in this Agreement shall be true and correct in
all material respects as of the Effective Time as though made at the
Effective Time (except as otherwise contemplated herein) and NBC shall have
received a Certificate to that effect signed by the President and Secretary
of HIA.
(b) All action required to be taken by, or on the part of, HIA and its
shareholders to authorize the execution, delivery, and performance of this
Agreement by HIA and the consummation of the transaction contemplated
hereby shall have been duly and validly taken by the Board of Directors of
HIA and its shareholders and NBC shall have received certified copies of
the resolutions evidencing such authorization.
(c) NBC shall have received an opinion from counsel to HIA, dated as of
the Effective Time, and in form an substance satisfactory to counsel for
NBC. In rendering such opinion, counsel may rely as to matters of fact,
upon such HIA officers or governmental officials as counsel deems
appropriate.
(d) Each beneficial owner of shares of stock of HIA shall have executed
and delivered to NBC an Investor Agreement in the form attached as Exhibit
7.2a.
(e) NBC shall have completed a due diligence review of HIA to its sole
satisfaction, and prior to closing, nothing shall have come to the
attention of NBC with respect to the operations, assets, financial
condition or business of HIA which has or may have a material adverse
effect on the condition of HIA as determined by NBC.
HIA shall furnish NBC such certificates sufficient to evidence fulfillment
of the conditions set forth in this Section 7.2 as NBC may reasonably
request.
7.3 Conditions Precedent to the Obligations of HIA under this Agreement.
The obligations, conditions, covenants and agreements of HIA under this
Agreement shall be further subject to the satisfactions, at or prior to the
Effective Time, of the following conditions, any one or more of which may
be waived by HIA:
(a) Each of the obligations of NBC required to be performed by it at or
prior to the closing, pursuant to the terms of this Agreement shall have
been duly performed and complied with and the representations and
warranties of NBC contained in this Agreement shall be true and correct in
all material respects as of the date of the Agreement and as of the
Effective Time as though made at the Effective Time (except as otherwise
contemplated herein) and HIA shall have received a certificate to that
effect signed by the President and Secretary of NBC.
(b) All action required to be taken by, or on behalf of NBC to authorize
the execution, delivery, and performance of this Agreement of NBC and
consummation of the transaction contemplated hereby shall have been duly
and validly taken by the Board of Directors of NBC and HIA shall have
received certified copies of the resolutions evidencing such authorization.
(c) All permits, consents, waivers, clearances, approvals and
authorizations of all third parties and governmental bodies shall have been
obtained by NBC which are necessary in connection with the consummation of
the Merger and the transaction contemplated hereby and which by the terms
herein are to be obtained by NBC.
(d) HIA shall have received an opinion from counsel to NBC, dated as of
the Effective Time, and in form and substance satisfactory to counsel for
HIA. In rendering such opinion, counsel may rely as to matters of fact,
upon such NBC officers or governmental officials as counsel deems
appropriate.
(e) NBC shall have added HIA as an additional insured under the current
GCM errors and omissions insurance coverage and other liability coverage,
and NBC shall bear the cost of such coverage.
ARTICLE VIII
Closing
8.1 Time and Place. Subject to the provisions hereof, the closing of
the transaction contemplated hereby shall take place at the offices of
Gholson, Hicks and Nichols on or before April 30, 2000, or such date as may
be agreed upon by NBC and HIA.
8.2 Deliveries at Closing. Subject to the provisions hereof, at the
closing there shall be delivered to NBC and HIA the opinions, certificates,
and other documents required under the provisions of this agreement.
ARTICLE IX
Termination, Amendment and Waiver
9.1 Termination. This Agreement may be terminated at any time prior to
the Effective Time, under the following conditions:
(a) The mutual consent of NBC and HIA;
(b) By either party upon denial of shareholder or regulatory approval in a
form which provides conditions which would be unacceptable to either party
as provided for herein;
(c) By HIA in the event that prior to the Effective Time it is determined
that the Merger will not qualify as a reorganization under Section 368(a)
of the Internal Revenue Code as determined by special tax counsel;
(d) 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, 1999;
(e) 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.
9.2 Effect of Termination. In the event of termination of this
Agreement as provided herein, this Agreement shall forthwith become void
and except as provided in Section 10.3 hereof there shall be no further
liability on the part of NBC or HIA, or their respective officers or
directors, other than liability for any default or breach hereunder
occurring prior to such termination, to the extent permitted by applicable
law.
9.3 Amendments and Waivers. Subject to applicable law, at any time
prior to the consummation of the Merger, by action taken by the respective
Boards of Directors, the parties may (a) amend this Agreement, (b) extend
the time of the performance of any of the obligations or other acts of the
other parties hereto, (c) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant hereto,
or (d) waive compliance with any of the agreements and conditions contained
in Articles VI and VII. Provided, however, after approval hereto by the
HIA shareholders, there may not be, without further approval of such
shareholders, any amendment, extension or waiver which changes the amount
or form of the consideration to be delivered to HIA and its shareholders.
This Agreement may not be amended except by an instrument in writing signed
on behalf of each of the parties hereto.
ARTICLE X
Miscellaneous
10.1 Expenses. In the event this Agreement is consummated, all
reasonable expenses subsequent to the Effective Time of the Merger in
connection with this Agreement and the transactions hereunder, will be paid
by NBC. All expenses, including, but not limited to, legal fees incurred
in connection with the merger and up to the Effective Time shall be paid by
the party incurring such costs.
10.2 Breach/Specific Performance. (a) In the event either party
breaches any of the terms and conditions of this Agreement, and the other
party is required to employ legal counsel, or institute legal action, in
order to enforce its rights under the terms and conditions of this
agreement, the successful party shall be entitled to recover from the
breaching party all reasonable expenses, attorney fees, court costs and
other expenses incidental to said action.
(b) In the event either party fails or refuses to carry out the terms and
conditions of this Agreement in any respect, or to complete the
transactions contemplated hereunder, the other party shall have the right,
in addition to the recovery of all damages, incidental or consequential, as
a result of said breach or failure, to obtain an order of specific
performance of this Agreement in any court of competent jurisdiction.
10.3 Disclosures. Upon the execution of this Agreement, the Merger shall
be announced by these parties in a mutually agreed upon manner.
10.4 Parties in Interest. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns, provided, however, that neither this Agreement nor
any rights or obligations hereunder may be assigned by either party without
prior written consent of the other.
10.5 Survival of Representations. None of the representations,
warranties, covenants and agreements contained in this Agreement shall
survive the Effective Time or termination of this Agreement, except for
those contained herein which by their terms apply in whole or in part after
the Effective Time or termination of this Agreement. Representations,
warranties covenants and agreements contained herein with respect to
exchange procedures, rights of former HIA shareholders, Dissenting
Shareholders, subsequent actions required after the Effective Time,
confidentiality, expenses, indemnification, exchange of stock options,
officer positions, board seats, and employee benefits shall all survive
the Effective Time and termination 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 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall comprise one and the same instrument.
10.8 Notices. All notices and other communications between the parties
shall be in writing and shall be deemed to have been duly given if
delivered in person or by certified or registered mail, or by prepaid
overnight delivery service:
To NBCCC: Lewis F. Mallory, Jr.
and NBC National Bank of Commerce
Post Office Box 1187
Starkville, MS 39760
With copy to: James C. Galloway, Jr.
Galloway-Chandler-McKinney
Insurance Agency, Inc.
Post Office Box 9670
Columbus, MS 39705-9670
With copy to: William F. Gillis, Esq.
Gholson, Hicks & Nichols
Post Office Box 1111
Columbus, MS 39703-1111
To HIA: Pat Permenter
Heritage Insurance Agency, Inc.
Post Office Box 1431
Starkville, MS 39760
With copy to: Joseph N. Studdard, Esq.
Studdard, Ray & Ford
Post Office Drawer 1018
Columbus, MS 39703-1018
or such other address as either party may designate by notice to the other.
10.9 Section Headings. The section headings are for reference only and
shall not limit or control the mean of any provision of this agreement.
10.10 Governing Law. 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 and
state courts of the state of Mississippi.
10.11 Entire Agreement. This Agreement, with any schedules and
exhibits hereto, constitutes the entire agreement between these parties and
is executed on behalf of and at the direction of the Boards of Directors of
the respective parties. It is intended that this agreement constitute a
binding agreement between the parties notwithstanding that there may be
other matters unresolved and subject to negotiation at the time of its
execution and the fact that its final consummation is conditioned and
contingent upon the approvals set forth herein. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the
parties hereto, and their respective successors, any rights, remedies,
obligations or liabilities, except for rights of directors, officers and
employees of HIA and Thrift to enforce rights set forth herein applicable
to them.
10.12 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.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of this 7th day of April, 2000.
NBC CAPITAL CORPORATION
BY: Lewis F. Mallory/S/
LEWIS F. MALLORY, JR., Chairman of the Board
and Chief Executive Officer
NATIONAL BANK OF COMMERCE
BY: Lewis F. Mallory/S/
LEWIS F. MALLORY, JR., Chairman of the Board
and Chief Executive Officer
HERITAGE INSURANCE AGENCY, LTD.
BY: Pat Permenter /S/
PAT PERMENTER, President
STATE OF MISSISSIPPI
COUNTY OF LOWNDES
Personally appeared before me, the undersigned notary public in and for
said county and state aforesaid, on this 7th day of April, 2000, within my
jurisdiction, the within named Lewis F. Mallory, Jr., Chairman of the Board
and Chief Executive Officer of NBC Capital Corporation, a Mississippi
corporation, and National Bank of Commerce, a national banking
organization, who acknowledged that he executed the foregoing instrument
for and on behalf and as the act and deed of said corporation and bank,
being duly authorized so to do.
Rachel H. Hegwood /S/
NOTARY PUBLIC
(SEAL)
My commission expires:
9/14/2001
STATE OF MISSISSIPPI
COUNTY OF LOWNDES
Personally appeared before me, the undersigned notary public in and for
said county and state aforesaid, on this 7th day of April, 2000, within my
jurisdiction, the within named Pat Permenter, President of Heritage
Insurance Agency, Ltd., a Mississippi corporation, who acknowledged that
she executed the foregoing instrument for and on behalf and as the act and
deed of said corporation, being duly authorized so to do.
Rachel H. Hegwood /S/
NOTARY PUBLIC
(SEAL)
My commission expires:
9/14/2001
Exhibit 1.2
Liabilities of HIA
1) NBC Loan #13539780 $25,050.00
2) NBC Loan #13632155 $ 9,182.66
3) Bell South Directory Advertising Order $ 685.00/month
4) Lease Agreement between HIA and
Barbara Prine, 807 Hwy. 12W $ 1,650.00/month
