EXHIBIT 99.2
AGREEMENT AND PLAN OF MERGER
__________________________________________________________________________
BY AND BETWEEN
NBC CAPITAL CORPORATION
AND
FFBS BANCORP, INC.
DATED AS OF FEBRUARY _____, 1999
TABLE OF CONTENTS
PARTIES
RECITALS
ARTICLE I THE PARENT MERGER: EFFECTIVE TIME
1.1 The Merger
1.2 Effects of Parent Merger
1.3 Effective Time
1.4 Basic Terms
1.5 Exchange Procedures
1.6 No Fractional Shares
1.7 Pooling of Interests
1.8 Agreement
1.9 Subsequent Actions
1.10 Anti-Dilution Adjustments
1.11 Treatment of Stock Options
1.12 Reservation of Right to Revise Transaction
ARTICLE II ARTICLES OF INCORPORATION AND BY-LAWS
OF THE SURVIVING CORPORATION
2.1 Articles of Incorporation
2.2 By-Laws
ARTICLE III THE BANK MERGER
3.1 The Bank Merger
3.2 Liquidation Account
ARTICLE IV OFFICERS AND DIRECTORS
OF THE SURVIVING CORPORATION
4.1 Directors
4.2 Officers
ARTICLE V DISSENTING SHAREHOLDERS
ARTICLE VI REPRESENTATION AND WARRANTIES OF FFBS
6.1 Organization, Corporate Power and Qualification
6.2 Financial Statements
6.3 Legal Proceedings
6.4 Capitalization
6.5 Authority; No Violation
6.6 Consents and Approvals
6.7 Ownership of Subsidiary
6.8 Financial Statements and Reports
6.9 No Broker's or Finder's Fees
6.10 Compliance with Law
6.11 Employee Benefits
6.12 Information Furnished: Registration Statement
6.13 Agreements and Instruments
6.14 Material Contract Defaults
6.15 Tax Matters
6.16 Environmental Matters
6.17 Insurance
6.18 Accounting and Tax Treatment
6.19 Undisclosed Liabilities
6.20 Loans
6.21 Year 2000 Readiness
ARTICLE VII REPRESENTATIONS AND WARRANTIES OF NBC
7.1 Organization, Corporate Power and Qualification
7.2 Authority; No Violation
7.3 Consents and Approvals
7.4 Legal Proceedings
7.5 SEC Documents
7.6 Capitalization
7.7 Financial Statements and Reports
7.8 No Broker's or Finder's Fees
7.9 Compliance with Law
7.10 Employee Benefits
7.11 Information Furnished; Registration Statement
7.12 Material Contract Defaults
7.13 Tax Matters
7.14 Environmental Matters
7.15 Insurance
7.16 Accounting and Tax Treatment
7.17 Undisclosed Liabilities
7.18 Loans
7.19 Year 2000 Readiness
ARTICLE VIII COVENANTS OF THE PARTIES
8.1 Exclusive Dealings
8.2 Conduct of Business
8.3 Current Information
8.4 Access to Properties and Records; Confidentiality
8.5 Interim Financial Statements
8.6 Approval of Shareholders
8.7 Cooperation
8.8 Unusual Events
8.9 FFBS Employees
8.10 Employee Benefit Plans
8.11 Directors
8.12 Registration Statement and Regulatory Filings
8.13 Registration of Stock Options
8.14 Pooling-of-Interests and Tax-Free Treatment
8.15 Agreements of Affiliates
ARTICLE IX CLOSING CONDITIONS
9.1 Conditions to Each Party's Obligations
Under this Agreement
9.2 Conditions Precedent to the Obligations of NBC
9.3 Conditions Precedent to the Obligations of FFBS
ARTICLE X CLOSING
10.1 Time and Place
10.2 Deliveries at Closing
ARTICLE XI TERMINATION, AMENDMENT AND WAIVER
11.1 Termination
11.2 Effect of Termination
11.3 Amendments and Waivers
ARTICLE XII MISCELLANEOUS
12.1 Expenses
12.2 Indemnification
12.3 Breach/Specific Performance
12.4 Disclosures
12.5 Parties in Interest
12.6 Survival of Representations
12.7 Waiver
12.8 Counterparts
12.9 Notices
12.10 Section Headings
12.11 Governing Law
12.12 Entire Agreement
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger ("Agreement") is executed this _______
day of February, 1999, by and between NBC CAPITAL CORPORATION ("NBC"or
"Surviving Corporation"), a Mississippi Corporation and FFBS BANCORP, INC.
("FFBS"), a Delaware Corporation, these companies being herein sometimes
collectively referred to as the "Constituent Corporations."
RECITALS
WHEREAS, the respective Boards of Directors of the Constituent Corporations
deem the merger of FFBS with and into NBC with NBC surviving, as provided
herein ("the Parent Merger") advisable and in the best interest of their
respective corporations and shareholders; and
WHEREAS, the Constituent Corporations are either bank or savings and loan
holding companies which have subsidiary banks, NBC's subsidiary bank being
National Bank of Commerce, a national banking corporation wholly owned by
NBC (the"Bank"), and FFBS's bank subsidiary being First Federal Bank for
Savings, Columbus, Mississippi, a federally chartered savings bank
regulated by the Office of Thrift Supervision ("OTS") of the Department of
the Treasury of the United States (the"Thrift"); and
WHEREAS, it is deemed by the parties to this Agreement to be appropriate
and necessary that Thrift be merged into and become a part of the Bank as
a part of the merger activity to be implemented pursuant to this Agreement;
WHEREAS, the respective Boards of Directors of NBC and FFBS have duly
adopted resolutions approving this Agreement and have directed that it be
submitted for required shareholder approval; and
WHEREAS, the Constituent Corporations parties desire and intend that the
Parent Merger qualify for federal income tax purposes as a tax-free
reorganization under Section 368 (a) of the Internal Revenue Code of 1986,
as Amended ("Code") and the regulations thereunder; and
WHEREAS, NBC and FFBS respectively desire to have certain representations,
warranties and covenants made with respect to the Parent Merger.
NOW, THEREFORE, in order to prescribe (a) the terms and conditions of the
Parent Merger, (b) the mode of carrying the same into effect, (c) the
manner and basis for converting and exchanging the common shares of FFBS
into the right to receive common shares of capital stock of NBC or cash to
holders of FFBS who validly demand dissenter's rights pursuant to
applicable provisions of law who do not vote in favor of the Parent Merger,
and (d) such other provisions as are deemed necessary, these parties hereby
agree as follows:
ARTICLE I
The Parent Merger: Effective Time
1.1 The Mergers. Subject to the terms and conditions of this Agreement,
at the Effective Time (as defined in Section 1.3 hereof), FFBS shall be
merged with and into NBC and the separate corporate existence of FFBS shall
then cease. NBC shall be the surviving corporation in the Parent Merger
and shall continue to be governed by the laws of the State of Mississippi,
and the corporate existence of NBC shall continue with the effects
specified by the Mississippi Business Corporation Act ("MBCA"). Thrift
will be merged into Bank as soon as regulatory approval will permit and all
compliance and operating requirements are met after which Thrift shall
cease to exist.
1.2 Effects of Parent Merger. On the closing, the corporate name and
existence of FFBS 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 rights, assets, liabilities and obligations of FFBS in accordance with
the MBCA. Upon the closing of the Parent Merger, the separate existence
and corporate organization of FFBS shall cease.
1.3 Effective Time. The Effective Time of the Parent 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 and the
related certificate issued by the appropriate authorities of the State of
Delaware under the requirements of the Delaware General Corporate Law (the
"DGCL").
1.4 Basic Terms. Each share of FFBS Common Stock issued and outstanding
at the Effective Time shall be converted into .7702 of a share of NBC
Common Stock (the "Exchange Ratio"); provided, however, that in the event
the average per share closing price of NBC Common Stock ("NBC Average
Price"), as quoted by the Over-the-Counter Bulletin Board, for the 20
trading day period ending one day prior to the Effective Time is below
$33.50, then the Exchange Ratio will be adjusted upward such that the
Exchange Ratio shall equal the quotient of $25.802 divided by the NBC
Average Price, rounded to four decimal places.
Each option for the purchase of FFBS Common Stock ("FFBS Stock Option")
will be converted into an option for the purchase of NBC Common Stock as
set forth in Section 1.11.
FFBS represents that, as of the date herein, 1,575,635 shares of FFBS
Common Stock and 65,966 FFBS Stock Options (with a weighted average
exercise price of $10.00) are outstanding.
Payment will be made in cash in lieu of issuance of fractional shares based
on the Exchange Ratio as herein established and determined at the Effective
Time.
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
FFBS Common Stock for exchange in accordance with this Article I,
certificates representing the shares of NBC 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 FFBS Common Stock.
(b) Holders of record of certificates which immediately prior to the
Effective Time represented outstanding shares of FFBS Common Stock (the
"Certificates") shall be instructed to tender such Certificates to the
Exchange Agent pursuant to a letter of transmittal that NBC shall deliver
or cause to be delivered to such holders as promptly as practicable
following the Effective Time. Such letter of transmittal shall specify
that risk of loss and title to Certificates shall pass only upon delivery
of such Certificates to the Exchange Agent.
(c) Subject to Section 1.6, after the Effective Time, each holder of a
Certificate(s) that surrenders such Certificate(s) to the Exchange Agent,
will, upon acceptance thereof by the Exchange Agent, be entitled to (x) a
certificate or certificates representing the number of whole shares of NBC
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 (y) 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.
(d) The Exchange Agent shall accept Certificates upon compliance with such
reasonable terms and conditions as NBC or the Exchange Agent may impose to
effect an orderly exchange thereof in accordance with customary exchange
practices. Certificates shall be appropriately endorsed or accompanied by
such instruments of transfer as the Exchange Agent may reasonably require.
(e) All shares of NBC 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 FFBS 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.
(f) After the Effective Time, there shall be no further transfer on the
records of FFBS of Certificates, and if such Certificates are presented to
FFBS for transfer, they shall be canceled against delivery of the
consideration provided therefor in this Agreement. NBC shall not be
obligated to deliver the consideration to which any former holder of FFBS
Common Stock is entitled as a result of the Parent Merger until such holder
surrenders the Certificates as provided herein. Certificates surrendered
for exchange by any person constituting an "affiliate" of FFBS for purposes
of Rule 145 of the Securities Act, shall not be exchanged for certificates
representing NBC Common Stock until NBC has received a written agreement
from such person in the form attached hereto as Exhibit 1.5(f). Neither
the Exchange Agent nor any party to this Agreement nor any Affiliate
thereof shall be liable to any holder of stock represented by any
Certificate for any consideration paid to a public official pursuant to
applicable abandoned property, escheat or similar laws. NBC and the
Exchange Agent shall be entitled to rely upon the stock transfer books of
FFBS to establish the identity of those persons entitled to receive
consideration specified in this Agreement, which books shall be conclusive
with respect thereto. In the event of a dispute with respect to ownership
of stock represented by any Certificate, NBC and the Exchange Agent shall
be entitled to deposit any consideration represented thereby in escrow with
an independent third party and thereafter be relieved with respect to any
claims thereto.
(g) Notwithstanding any other provisions of this Agreement, no dividends
or other distributions declared or made after the Effective Time with
respect to NBC 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 NBC 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
NBC 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 NBC 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 NBC
Common Stock shall be issued in the Parent Merger. Each holder who
otherwise would have been entitled to a fraction of a share of NBC 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 average of the closing prices per
share of NBC Common Stock for the 20 trading day period immediately
preceding the Closing Date as reported on the National Quotation Bureau
pink sheets. No such holder shall be entitled to dividends, voting rights
or any other rights in respect of any fractional share.
1.7 Pooling of Interests. The combination of such stock delivered to FFBS
shareholders and cash paid to satisfy dissenting shareholders and
fractional 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.
1.8 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,
including the filing of an Interagency Application in the form set forth in
OCC Manual of April 1998, and/or such other forms and requirements as may
be directed by applicable regulatory authority.
1.9 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 FFBS 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 FFBS and take all such
other actions considered appropriate to consummate this Agreement.
1.10. Anti-Dilution Adjustments. In the event that prior to the
Effective Time NBC shall (or shall establish a record date prior to the
Effective Time for the following) declare a stock dividend or other
distribution payable in NBC Common Stock or securities convertible into NBC
Common Stock or a distribution otherwise previously disclosed, or effect a
stock split, reclassification, combination or other change with respect to
NBC Common Stock, the Exchange Rate shall be appropriately adjusted to
reflect such dividend, distribution, stock split, reclassification,
combination or other change, such that the shareholders of FFBS shall be
entitled to same as if the Effective Time had occurred prior thereto.
1.11. Treatment of Stock Options. (a) At the Effective Time, each
outstanding option to purchase shares of FFBS Common Stock under the FFBS
stock option plans (each, an "FFBS Stock Option"), whether vested or
unvested, shall be converted into an option to acquire, on the same terms
and conditions as were applicable under such FFBS Stock Option, the number
of shares of NBC Common Stock equal to (a) the number of shares of FFBS
Common Stock subject to the FFBS Stock Option, multiplied by (b) the
Exchange Rate (such product rounded to the nearest whole number) (a
"Replacement Option"), at the exercise price per share (rounded down to the
nearest whole cent) equal to (y) the per share exercise price pursuant to
such FFBS Stock Option divided by (z) the Exchange Rate. For example, each
FFBS Stock Option with an exercise price of $10.00 shall be converted into
an option to purchase .7702 shares of NBC Common Stock with an exercise
price of $12.98. Notwithstanding the foregoing, each FFBS Stock Option
which is intended to be an "incentive stock option" (as defined in Section
422 of the Code) shall be adjusted in accordance with the requirements of
Section 424 of the Code. Accordingly, with respect to "incentive stock
options," fractional shares will be rounded down to the nearest whole
number of shares and where necessary the per share exercise price shall be
rounded up to the nearest cent. At or prior to the Effective Time, FFBS
shall use its best efforts, including its reasonable best efforts to obtain
any necessary consents from optionees, with respect to the FFBS stock
option plans to permit the replacement of the outstanding FFBS Stock
Options by NBC pursuant to this Section and to permit NBC to assume the
FFBS stock option plans. FFBS shall further take all action necessary to
amend the FFBS stock option plans to eliminate automatic grants or awards
thereunder following the Effective Time. At the Effective Time, NBC shall
assume the FFBS stock option plans; provided, that such assumption shall be
only in respect of the Replacement Options and that NBC shall have no
obligation with respect to any awards under the FFBS stock option plans
other than the Replacement Options and shall have no obligation to make any
additional grants or awards under such assumed FFBS stock option plans. As
used herein, Exchange Rate shall mean the Exchange Rate as it may be
adjusted pursuant to Section 1.4 of this Agreement.
(b) At all time after the Effective Time, NBC shall reserve for issuance
such number of shares of NBC Common Stock as necessary so as to permit the
exercise of options granted under the FFBS stock option plans in the manner
contemplated by this Agreement and the instruments pursuant to which such
options were granted. NBC shall file with the SEC a registration statement
on an appropriate form under the Securities Act with respect to the shares
of NBC Common Stock subject to the options to acquire NBC Common Stock
issued pursuant to Section 1.11(a) hereof, and shall use its reasonable
best efforts to maintain the current status of the prospectus contained
therein, as well as comply with any applicable state securities or "blue
sky" laws, for so long as such options remain outstanding.
1.12 Reservation of Right to Revise Transaction. NBC may at any time
change the method of effecting the acquisition of FFBS or Thrift by NBC,
and FFBS shall cooperate in such efforts, if and to the extent NBC deems
such change to be desirable and subject to FFBS's approval (which approval
shall not be unreasonably withheld); provided, however, that no such change
shall (A) alter or change the amount or kind of consideration to be issued
to holders of FFBS Common Stock as provided for in this Agreement (the
"Merger Consideration"), (B) adversely affect the tax treatment to FFBS's
shareholders as a result of receiving the Merger Consideration, (C)
adversely affect the qualification of the Parent Merger as a pooling of
interests for accounting and financial reporting purposes or (D) 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.
2.3 No amendments to the Articles or By-Laws are contemplated at the
present time.
ARTICLE III
The Bank Merger
3.1. The Bank Merger. As may be determined by NBC to be practicable
following the Effective Time, Thrift shall be merged with and into the Bank
("Bank Merger") pursuant to the terms and conditions set forth herein and
in the Plan of Reorganization and Merger attached hereto as Exhibit 3.1
(the "Bank Agreement") and pursuant to 12 U.S.C. Sections 215c, 1815(d)(3)
and 1828(c), the separate existence of Thrift shall thereupon cease, the
Bank shall be the surviving institution in the Merger, all of the Bank's
rights, privileges, powers, immunities, purposes and franchises shall
continue unaffected by the Bank Merger, except to the extent impacted by
the assumptions of all obligations, rights, assets and liabilities of
Thrift, and the Bank shall continue at the effective time of the Bank
Merger to be regulated by the Office of the Comptroller of the Currency of
the Department of the Treasury of the United States ("OCC").
3.2. Liquidation Account. The liquidation account established by Thrift
pursuant to the plan of conversion adopted in connection with its
conversion from mutual to stock form shall, to the extent required by
applicable law, continue to be maintained by the Bank after the Effective
Time for the benefit of those persons and entities who were savings account
holders of Thrift on the eligibility and supplemental eligibility record
dates for such conversion and who continue from time to time to have rights
therein. If required by the rules and regulations of the OTS, the Bank
shall amend its charter to specifically provide for the continuation of the
liquidation account previously established by Thrift.
ARTICLE IV
Officers and Directors of the Surviving Corporation
4.1 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. Two presently serving directors of FFBS, shall be
appointed by NBC and become directors of NBC at the Effective Time in
accordance with applicable provisions of NBC By-Laws. The NBC Board of
Directors agrees to nominate and support such appointees for re-election to
the NBC Board at its next annual election of Directors provided such
appointees are then serving on said Board in good stead.
4.2 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 FFBS who may be duly appointed as additional
officers of the Surviving Corporation.
ARTICLE V
Dissenting Shareholders
5.1 Each FFBS shareholder who votes against the Parent Merger and demands
Dissenter's Rights or rights of appraisal pursuant to Delaware General
Corporate Law ("DGCL"), Section 262, ("Dissenting Shareholder") and who
shall not withdraw or lose such rights of appraisal shall not have such
shares exchanged for NBC Common Stock as provided for hereinabove, but
shall be treated as a Dissenting Shareholder.
5.2 Each Dissenting Shareholder shall be entitled only to those rights
granted by DGCL Section 262 or other applicable law. FFBS shall give NBC
prompt written notice upon receipt by FFBS of any written demands for
Dissenter's Rights, and withdrawal of demands for Dissenter's Rights. FFBS
shall not, except with prior written consent of NBC, make any payment with
respect to, or settle or offer to settle, any such demands. Each
Dissenting Shareholder who becomes entitled to payment for FFBS Dissenting
Shares, shall receive payment of the estimated fair value of each share of
FFBS Common Stock from NBC and such shares of FFBS Common Stock shall be
canceled.
5.3 If any FFBS shareholder who demands Dissenter's Rights shall
effectively withdraw or lose such Dissenter's Right, each such FFBS share
shall be converted to shares of NBC at the conversion rate set out in
Section 1.4 hereof.
ARTICLE VI
Representation and Warranties of FFBS
FFBS hereby makes the following representations and warranties to NBC
except as previously disclosed or set forth in a schedule hereto:
6.1 Organization, Corporate Power and Qualification. FFBS and its
subsidiary are validly existing and in good standing with all applicable
authorities and are duly qualified to do business as a foreign corporation
in each jurisdiction in which such corporation conducts business and in
which qualification is necessary under applicable law, except to the extent
that any failure to do so would not, in the aggregate, have a material
adverse effect on the business, financial condition or result of operations
of FFBS and its subsidiary taken as a whole. FFBS has the requisite power
and authority to enter into and carry out the transactions contemplated by
this Agreement, subject to obtaining shareholder and regulatory approval as
provided herein.
6.2 Financial Statements. At the request of NBC, FFBS has previously
delivered to NBC copies of the consolidated balance sheet of FFBS as of
June 30, 1998, and each year for the previous two fiscal years, and the
related consolidated statements of income, changes in shareholders equity,
and changes in financial position, for the periods then ended, in each case
accompanied by the audit report of ▇. ▇. ▇▇▇▇ & Company, independent
certified public accountants. These financial documents fairly represent
the consolidated financial position of FFBS and its subsidiary as of the
date thereof, and fairly present the results of the consolidated operations
and changes in shareholder equity and the consolidated financial position
of FFBS and its subsidiary for the respective fiscal periods or as of the
respective dates therein set forth. Each of the financial statements above
is true and correct in all material respects, and has been prepared in
accordance with GAAP applied on a basis consistent with other periods,
except as otherwise noted.
6.3 Legal Proceedings. Except as set forth in Schedule 6.3 to this
Agreement: (i) neither FFBS nor its subsidiary is a party to any, and
there are no pending or, to the best of FFBS's knowledge, threatened
material legal, administrative, arbitration or other proceedings, claims or
actions or governmental investigations of any nature challenging the
validity or propriety of the transaction contemplated in this Agreement,
and to the best of FFBS's knowledge, there is no reasonable basis for any
such objection; and (ii) neither FFBS, nor its subsidiary is a party to any
order, judgment or decree which will, or might reasonably be expected to,
materially adversely affect their business, operations, properties, assets
or financial condition or their ability to acquire any property or conduct
business in any area in which they presently do business.
6.4 Capitalization. The authorized capital stock of FFBS consists of
2,000,000 shares of common stock and 500,000 shares of preferred stock
(none of which are issued and outstanding). At the close of business on
August 31, 1998, there were 1,575,635 shares of such stock issued and
outstanding (excluding 100 shares of treasury stock issued but not
outstanding) and there were outstanding FFBS director and incentive stock
options for individuals to acquire 65,966 additional shares of FFBS common
stock. There are existing Recognition and Retention Plans with stock rights
calling for the issuance of 10,580 shares of FFBS common stock which number
is included in the 1,575,635 shares shown above to be outstanding. All
issued and outstanding shares of FFBS 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. Except as set forth in Schedule 6.4 hereto, FFBS has not issued
any shares of FFBS stock in excess of the shares set forth above, and does
not have and is not bound by any outstanding subscription, option, warrant,
cause, commitment or other agreements of any character calling for the
purchase or issuance of any shares of FFBS stock or any security
representing the right to purchase or otherwise receive any FFBS stock
except as set forth in this paragraph.
6.5 Authority; No Violation.
(a) FFBS has full corporate power and authority to execute and deliver
this Agreement, and subject to obtaining approval of its shareholders as
provided herein, to consummate the transactions contemplated hereby. These
actions have been duly and validly approved by the Board of Directors of
FFBS. The Board has directed that this Agreement and the transaction
contemplated hereby be submitted to the FFBS shareholders for approval at a
meeting to be duly convened, and, except for such shareholder approval, no
other corporate proceedings on the part of FFBS are necessary to consummate
the transaction so contemplated.
(b) Neither the execution and delivery of this Agreement by FFBS nor the
consummation by FFBS of the transaction contemplated hereby, nor compliance
by FFBS with any provision hereof, will (i) violate any provision of the
Certificate of Incorporation or By-Laws of FFBS or (ii) violate any
statute, code, ordinance, rule, regulation, judgment, order, writ, decree
or injunction applicable to FFBS of its subsidiary or affecting their
respective 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 FFBS or its subsidiary, except to the extent that such
collectively are not material and adverse.
6.6 Consent and Approvals. Except as set forth in Schedule 6.6 hereto, to
the best of the knowledge of the FFBS officers and board, no permit,
consent, approval or authorization of, or declaration, filing or
registration with, any public body or authority, or to the knowledge of
FFBS is necessary in connection with this Agreement, its consummation, the
transfer of FFBS assets to NBC and the conduct by NBC of all business now
conducted by FFBS and its subsidiary.
6.7 Ownership of Subsidiary. All the outstanding shares of the capital
stock or other ownership interests in Thrift are validly issued, fully
paid, nonassessable and owned beneficially and of record by FFBS or Thrift
free and clear of any Encumbrance. There are no outstanding rights to
purchase or acquire any capital stock of any FFBS subsidiary and no oral or
written agreement, contract, arrangement, understanding, plan or instrument
of any kind to which any of FFBS or any of its affiliates is subject with
respect to the issuance, voting or sale of issued or unissued shares of the
capital stock of Thrift. Except as disclosed in Schedule 6.7 hereto,
neither FFBS nor Thrift owns any of the capital stock or other equity
securities (including any rights with respect to such securities) of or
profit participation in any person or "company" (as defined in Section
10(a)(1)(C) of the HOLA) other than the Federal Home Loan Bank of Dallas
and Thrift.
6.8 Financial Statements and Reports. For the past three years, FFBS
and the Thrift have timely filed all regulatory documents required to be
filed by them, except to the extent that all failures to so file, in the
aggregate, would not have a material adverse effect on FFBS; and all such
documents, as finally amended, complied in all material respects with
applicable requirements of applicable law and, as of their respective date
or the date as amended, did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. Except to the extent stated
therein, all financial statements and schedules included in the documents
referred to in the preceding sentences (i) are in accordance with FFBS's
books and records and those of Thrift, which books and records are
complete and accurate in all material respects and have been maintained in
all material respects in accordance with applicable law, and (ii) present
fairly the consolidated financial position and the consolidated results of
operations and cash flows of FFBS as of the dates and for the periods
indicated in accordance with GAAP consistently applied during the periods
involved (except for the omission of notes to unaudited statements,
year-end adjustments to interim results normal in nature and amount and
changes in GAAP and except where regulatory reporting requirements provide
otherwise). The audited consolidated financial statements of FFBS as of
June 30, 1998 and for the two years then ended last filed by FFBS as part
of a publicly available regulatory document disclose all liabilities
(whether accrued, absolute, contingent, unliquidated or otherwise, whether
due or to become due and regardless of when asserted), as of their
respective dates, of FFBS and Thrift required to be reflected in such
financial statements according to GAAP, other than liabilities which are
not, in the aggregate, material to FFBS and Thrift, taken as a whole, and
contain in the opinion of management, adequate reserves for losses on loans
and properties acquired in settlement of loans, taxes and all other
material accrued liabilities and for all reasonably anticipated material
losses in accordance with GAAP, if any, as of such date. Except for (i)
those liabilities that are fully reflected or reserved against on FFBS's
audited consolidated balance sheet last filed by FFBS as part of a publicly
available regulatory document and (ii) liabilities incurred in the ordinary
course of business since the date of such audited consolidated balance
sheet and which would not have, individually or in the aggregate, a
material adverse effect on FFBS, FFBS has no liabilities or obligations of
any nature, whether absolute, accrued, contingent or otherwise and whether
due or to become due, which are or would be required by GAAP to be shown on
its consolidated balance sheet.
6.9 No Broker's or Finder's Fees. No agent, broker, investment banker,
person or firm acting on behalf or under authority of FFBS or Thrift 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 Parent Merger or
any other transaction contemplated hereby, except FFBS has engaged Trident
Financial Corporation, an investment banking firm, to provide financial
advisory services.
6.10 Compliance with Law. FFBS and Thrift have 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 FFBS, and neither
FFBS nor Thrift has received notice from any governmental authority of any
material violation of, and does not know of any material violations of, any
applicable law.
6.11 Employee Benefits. (a) Except as disclosed on Schedule 6.11 hereto,
neither FFBS nor Thrift maintains, contributes to or sponsors any 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 ("FFBS Employee Benefit
Plans") (true and correct copies of which have been delivered to NBC).
Except as disclosed on Schedule 6.11 hereto, neither FFBS nor Thrift (i)
provides 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 (collectively "Benefit Arrangements").
(b) Except as previously disclosed, all FFBS Employee Benefit Plans and
Benefit Arrangements were in effect for substantially all of calendar year
1998 and, there has been no material amendment thereof (other than
amendments required to comply with applicable law) and, except as disclosed
in publicly available regulatory documents filed by FFBS prior to the date
of this Agreement, there will be no material increase in the cost thereof
or benefits payable thereunder on or after January 1, 1999.
(c) To the knowledge of FFBS, with respect to all FFBS Employee Benefit
Plans and Benefit Arrangements, FFBS and Thrift are in substantial
compliance with the requirements prescribed by any and all Applicable Laws
currently in effect, including but not limited to ERISA and the Code,
applicable to such FFBS Employee Benefit Plans or Benefit Arrangements.
None of the FFBS Employee Benefit Plans which are defined benefit pension
plans have incurred any "accumulated funding deficiency" (whether or not
waived) as that term is defined in Section 412 of the Code and the fair
market value of the assets of each such plan equals or exceeds the accrued
liabilities of such plan. To the best knowledge of FFBS and Thrift, there
are not now nor have there been any non-exempt "prohibited transactions,"
as such term is defined in Section 4975 of the Code or Section 406 of
ERISA, involving the FFBS Employee Benefit Plans which could subject FFBS
or Thrift to the penalty or Tax imposed under Section 502(i) of ERISA or
Section 4975 of the Code. No FFBS Employee Benefit Plan which is subject
to Title IV of ERISA has been completely or partially terminated; no
proceedings to completely or partially terminate any FFBS Employee Benefit
Plan have been instituted within the meaning of Subtitle C of said Title IV
of ERISA; and no reportable event, within the meaning of Section 4043(c) of
said Subtitle C for which the 30-day notice requirement of ERISA has not
been waived, has occurred with respect to any FFBS Employee Benefit Plan.
Neither FFBS nor Thrift has engaged in any transaction described in Section
4069 of ERISA within the last five years. Neither FFBS nor Thrift has
failed to make any contribution or pay any amount due and owing as required
by the terms of any FFBS Employee Benefit Plan or Benefit Arrangement.
Neither FFBS nor Thrift has incurred or reasonably expects to incur any
liability to the Pension Benefit Guaranty Corporation except for required
premium payments which, to the extent due and payable, have been paid. To
the knowledge of FFBS, the FFBS Employee Benefit Plans intended to be
qualified under Section 401(a) of the Code are so qualified, and FFBS is
not aware of any fact which would adversely affect the qualified status of
such plans.
6.12 Information Furnished: Registration Statement. (a) To the best
knowledge of FFBS, no statement contained in any schedule, certificate or
other document furnished or to be furnished in writing by or on behalf of
FFBS 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.
(b) None of the information provided by FFBS or Thrift for inclusion in
the registration statement on Form S-4 to be filed with the SEC by NBC
under the Securities Act of 1933, as amended ("Securities Act") relating to
shares of NBC Common Stock to be issued in the Parent Merger, including the
prospectus (the "Prospectus") relating to such issuance and the joint proxy
statement and forms of proxy relating to the vote of NBC shareholders and
FFBS shareholders with respect to the Parent Merger (as amended,
supplemented or modified, the "Proxy Statement") contained therein (such
registration statement as amended, supplemented or modified, the
"Registration Statement"), at the time the Registration Statement becomes
effective or, in the case of the Proxy Statement, at the date of mailing,
will contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they are
made, not misleading.
6.13 Agreements and Instruments. Except as previously disclosed,
neither FFBS nor Thrift is a party to (a) any material contract, (b) any
contract relating to the borrowing of money by FFBS or Thrift or the
guarantee by FFBS or Thrift of any such obligation (other than Federal Home
Loan Bank advances), (c) any contract to make loans or for the provision,
purchase or sale of goods, services or property between FFBS or Thrift and
any director or officer of FFBS or Thrift, or any member of the immediate
family or affiliate of any of the foregoing (other than loans or deposits
made on an arm's-length basis in the ordinary course of business), (d) any
contract with or concerning any labor or employee organization, (e) any
contract between FFBS or Thrift and any affiliate thereof (other than
contracts solely between FFBS and Thrift, (f) any agreements, directives,
orders, or similar arrangements between or involving FFBS or Thrift and any
governmental authority, (g) any contract with respect to the employment,
retention or severance of any directors, officers, employees or
consultants, (h) any contract which materially restricts the conduct of any
line of business by FFBS or any current or future affiliates thereof or (i)
any contract pursuant to which FFBS or is or may become obligated to invest
in or contribute capital to Thrift.
6.14 Material Contract Defaults. Neither FFBS nor Thrift nor, to the
knowledge of FFBS and Thrift, the other party thereto is in default in any
respect under any contract to which any of FFBS or Thrift is a party or by
which its respective assets, business, or operations may be bound or
affected or under which it or its respective assets, business, or
operations receives benefits, other than any such default or defaults which
would not have, in the aggregate, a material adverse effect on FFBS, and
there has not occurred any event that, with the lapse of time or the giving
of notice or both, would constitute such a default. All material contracts
to which FFBS or Thrift is a party are valid, binding and in full force
and effect.
6.15 Tax Matters. (a) FFBS, Thrift and any affiliated group (within the
meaning of Section 1504(a) of the Code) of which FFBS or Thrift is a member
have duly and properly filed all federal, state, local and other tax
returns required to be filed by them 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 FFBS or Thrift 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 FFBS and Thrift, threatening to assert any
deficiency or claim for additional taxes, nor to the knowledge of FFBS or
Thrift is there any basis for any such assertion or claim. FFBS and Thrift
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. FFBS and FFBS subsidiary have complied with all
applicable state law sales and use tax collection and reporting
requirements.
(b) Adequate provision for any federal, state or local taxes due or to
become due for FFBS or Thrift for any period or periods through and
including September 30, 1998, has been made and is reflected on the
September 30,1998, consolidated financial statements last filed by FFBS as
part of a publicly available regulatory document and has been or will be
made with respect to periods ending after September 30, 1998.
6.16 Environmental Matters. To the knowledge of FFBS, neither FFBS nor
Thrift owns or leases any properties affected by toxic waste. Neither FFBS
nor Thrift has knowledge of, nor has FFBS or Thrift 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 FFBS or Thrift 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 FFBS or Thrift, or
otherwise form the basis of any claim, action, suit, proceeding, hearing or
investigation against or of FFBS or Thrift, 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 FFBS and Thrift,
threatened against FFBS or Thrift relating in any way to such hazardous
substance laws or any regulation, order, decree, judgment or injunction
issued, entered, promulgated or approved thereunder. To the knowledge of
FFBS and Thrift, neither FFBS nor Thrift has made or participated in any
loan to any Person who is subject to any civil, criminal or administrative
claim, action, suit, proceeding, hearing or investigation relating in any
way to such hazardous substance laws or any regulation, order, decree,
judgment or injunction issued, entered, promulgated or approved thereunder
and relating to the property secured by such loan.
6.17 Insurance. FFBS and Thrift have in effect insurance coverage with
reputable insurers which, in respect of amounts, types and risks insured,
is reasonably adequate for the business in which FFBS and Thrift are
engaged. A schedule of all insurance policies in effect as to FFBS and
Thrift (the "Insurance Policies") has been previously disclosed (other than
policies pertaining to secured loans made in the ordinary course of
business). All 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 FFBS's financial statements last filed by FFBS as part of a
publicly available regulatory document). 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. To the
knowledge of FFBS, neither FFBS nor Thrift has been refused any insurance
with respect to any material properties, assets or operations, nor has any
coverage been limited or terminated by any insurance carrier to which it
has applied for any such insurance or with which it has carried insurance
during the last three (3) years.
6.18 Accounting and Tax Treatment. Neither FFBS nor any of its
affiliates has taken or agreed to take any action that or has 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 or any of its Affiliates) (i)
prevent NBC from accounting for the Parent Merger as a pooling of interests
for accounting and financial reporting purposes or (ii) prevent the Merger
from qualifying as a "reorganization" under Section 368(a) of the Code.
6.19 Undisclosed Liabilities. Except as set forth in Schedule 6.19,
neither FFBS nor Thrift has any material liabilities other than those
liabilities disclosed on or provided for in the balance sheet as of June
30, 1998, and liabilities incurred since such date in the ordinary course
of business consistent with past practices.
6.20 Loans. All of the loans on the books of FFBS and Thrift are valid
and properly documented and were made in the ordinary course of business.
6.21 Year 2000 Readiness. FFBS and the FFBS subsidiary have 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 them to be substantially Year 2000 compliant
on or before the end of 1999 and, except as set forth in the Schedule 6.21,
FFBS does not expect the future cost of addressing such issues to be
material.
ARTICLE VII
Representations and Warranties of NBC
NBC represents and warrants to FFBS as follows:
7.1 Organization, Corporate Power and Qualification. NBC and its
subsidiaries are validly existing and in good standing with all applicable
authorities and are duly qualified to do business in each jurisdiction in
which such corporation and its subsidiaries conduct business. NBC has the
corporate power and authority and has received all appropriate regulatory
authorizations to own or lease all of its properties and to carry on its
businesses as they are now being conducted.
7.2 Authority; No Violation. (a) NBC has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby upon valid approval of its shareholders
and receipt of regulatory approvals. The Board of Directors of NBC has
duly and validly approved and adopted this Agreement and approved the
transaction contemplated hereby, and has authorized execution and delivery
of this Agreement, which (subject to appropriate shareholder approval)
constitutes a valid and binding obligation of NBC, enforceable in
accordance with its terms.
(b) Neither the execution and delivery of this Agreement by NBC nor the
consummation by NBC of the transaction contemplated hereby, nor compliance
by NBC with any provision hereof, will (i) violate any provision of the
Articles of Incorporation or By-Laws of NBC or (ii) violate any statute,
code, ordinance, rule, regulation, judgment, order, writ, decree or
injunction applicable to NBC or any of its subsidiaries or any of their
respective properties or assets, or (iii) violate, conflict with, result in
a breach of any provisions 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 of the respective properties or assets of NBC, or any of its
subsidiaries except to the extent that such collectively are not material
and adverse.
7.3 Consents and Approvals. Consents, approvals, filings, or
registrations with the following governmental entities or third parties are
necessary in connection with the consummation of the Merger contemplated
hereby:
(a) the filing by NBC of an Application with the Board of Governors of the
Federal Reserve under The Bank Holding Company Act and approval or such
application, or the obtaining of an appropriate waiver thereof.
(b) the filing with the Securities and Exchange Commission ("SEC") of the
Proxy Statement/Prospectus in definitive form relating to the meeting of
FFBS shareholders to be held in connection with this Agreement and the
transaction contemplated hereby, together with registration statements on
SEC Form S-4 and other required SEC compliance.
(c) the filing of the Articles of Merger with the Secretary of State of
the State of Mississippi under the MBCA and the Certificate of Merger with
the Secretary of State of Delaware.
(d) such filings and approvals as are required under the Securities or
"Blue Sky" laws of various states in connection with the issuance of shares
of NBC common stock pursuant to this Agreement, and
(e) such other filings, approvals, or consents as may be required by
applicable federal and state law and regulations promulgated thereunder;
including appropriate filings with the OCC and the OTS.
7.4 Legal Proceedings. Except as set forth in Schedule 7.4 to this
Agreement: (i) neither NBC or any subsidiary is a party to any, and there
are no pending or, to the best of NBC's knowledge, threatened material
legal, administrative, arbitration or other proceedings, claims or actions
or governmental investigations of any nature challenging the validity or
propriety of the transaction contemplated in this Agreement, and to the
best of NBC's knowledge, there is no reasonable basis for any such
objection; and (ii) neither NBC, nor any subsidiary is a party to any
order, judgment or decree which will, or might reasonably be expected to,
materially adversely affect their business, operations, properties, assets
or financial condition or their ability to acquire any property or conduct
business in any area in which they presently do business.
7.5 SEC Documents. NBC will make available to FFBS a true and complete
copy of each report, schedule, registration statement, and proxy statement
and amendment filed by NBC with the SEC since December 31, 1994. These
constitute all such documents that NBC was required to file with the SEC
and they complied in all material respects with the requirements of all
applicable law and regulations. They were prepared in accordance with
GAAP, were true, complete and correct and they fairly present the financial
position of NBC and its subsidiaries as of their respective dates.
7.6 Capitalization. The authorized capital stock of NBC consists of
10,000,000 shares of common stock. At the close of business on January
28, 1998, there were 5,664,736 shares of such stock issued and outstanding.
All issued and outstanding shares of NBC 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. NBC has not issued any shares of NBC stock in excess of the
shares set forth above, and does not have and is not bound by any
outstanding subscription, option, warrant, cause, commitment or other
agreements of any character calling for the purchase or issuance of any
shares of NBC stock or any security representing the right to purchase or
otherwise receive any NBC stock except as set forth in this paragraph.
7.7 Financial Statements and Reports. For the past three years, NBC
and the NBC subsidiaries have timely filed all regulatory documents
required to be filed by them, except to the extent that all failures to so
file, in the aggregate, would not have a material adverse effect on NBC;
and all such documents, as finally amended, complied in all material
respects with applicable requirements of applicable law and, as of their
respective date or the date as amended, did not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. Except to
the extent stated therein, all financial statements and schedules included
in the documents referred to in the preceding sentences (i) are in
accordance with NBC's books and records and those of the NBC subsidiaries,
which books and records are complete and accurate in all material respects
and have been maintained in all material respects in accordance with
applicable law, and (ii) present fairly the consolidated financial position
and the consolidated results of operations and cash flows of NBC as of the
dates and for the periods indicated in accordance with GAAP consistently
applied during the periods involved (except for the omission of notes to
unaudited statements, year-end adjustments to interim results normal in
nature and amount and changes in GAAP and except where regulatory reporting
requirements provide otherwise). The audited consolidated financial
statements of NBC as of December 31, 1997, and for the two years then ended
last filed by NBC as part of a publicly available regulatory document
disclose all liabilities (whether accrued, absolute, contingent,
unliquidated or otherwise, whether due or to become due and regardless of
when asserted), as of their respective dates, of NBC and the NBC
subsidiaries required to be reflected in such financial statements
according to GAAP, other than liabilities which are not, in the aggregate,
material to NBC and the NBC subsidiaries, taken as a whole, and contain in
the opinion of management, adequate reserves for losses on loans and
properties acquired in settlement of loans, taxes and all other material
accrued liabilities and for all reasonably anticipated material losses in
accordance with GAAP, if any, as of such date. Except for (i) those
liabilities that are fully reflected or reserved against on NBC's audited
consolidated balance sheet last filed by NBC as part of a publicly
available regulatory document and (ii) liabilities incurred in the ordinary
course of business since the date of such audited consolidated balance
sheet and which would not have, individually or in the aggregate, a
material adverse effect on NBC, NBC has no liabilities or obligations of
any nature, whether absolute, accrued, contingent or otherwise and whether
due or to become due, which are or would be required by GAAP to be shown on
its consolidated balance sheet.
7.8 No Broker's or Finder's Fees. No agent, broker, investment banker,
person or firm acting on behalf or under authority of NBC or the NBC
subsidiaries 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 Parent Merger or any other transaction contemplated hereby.
7.9 Compliance with Law. NBC and the NBC subsidiaries have 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 NBC, and neither NBC nor any NBC subsidiary has received notice from any
governmental authority of any material violation of, and does not know of
any material violations of, any applicable law.
7.10 Employee Benefits. To the knowledge of NBC, with respect to all
NBC Employee Benefit Plans and NBC Benefit Arrangements, NBC and the NBC
subsidiaries are in substantial compliance with the requirements prescribed
by any and all Applicable Laws currently in effect, including but not
limited to ERISA and the Code, applicable to such NBC Employee Benefit
Plans or NBC Benefit Arrangements. None of the NBC Employee Benefit Plans
which are defined benefit pension plans have incurred any "accumulated
funding deficiency" (whether or not waived) as that term is defined in
Section 412 of the Code and the fair market value of the assets of each
such plan equals or exceeds the accrued liabilities of such plan. To the
best knowledge of NBC and Bank, there are not now nor have there been any
non-exempt "prohibited transactions," as such term is defined in Section
4975 of the Code or Section 406 of ERISA, involving the NBC Employee
Benefit Plans which could subject NBC or the NBC subsidiaries to the
penalty or Tax imposed under Section 502(i) of ERISA or Section 4975 of the
Code. No NBC Employee Benefit Plan which is subject to Title IV of ERISA
has been completely or partially terminated; no proceedings to completely
or partially terminate any NBC Employee Benefit Plan have been instituted
within the meaning of Subtitle C of said Title IV of ERISA; and no
reportable event, within the meaning of Section 4043(c) of said Subtitle C
for which the 30-day notice requirement of ERISA has not been waived, has
occurred with respect to any NBC Employee Benefit Plan. No NBC Employee
Benefit Plan or NBC Benefit Arrangement is a "multi-employer plan" within
the meaning of Section 4001(a)(3) of ERISA or a plan that has two or more
contributing sponsors at least two of whom are not under common control,
within the meaning of Section 4063 of ERISA. Neither NBC nor any NBC
subsidiary has engaged in any transaction described in Section 4069 of
ERISA within the last five years. Neither NBC nor any NBC subsidiary has
failed to make any contribution or pay any amount due and owing as required
by the terms of any NBC Employee Benefit Plan or NBC Benefit Arrangement.
Neither NBC nor any NBC subsidiary has incurred or reasonably expects to
incur any liability to the Pension Benefit Guaranty Corporation except for
required premium payments which, to the extent due and payable, have been
paid. To the knowledge of NBC, the NBC Employee Benefit Plans intended to
be qualified under Section 401(a) of the Code are so qualified, and FFBS is
not aware of any fact which would adversely affect the qualified status of
such plans.
7.11 Information Furnished; Registration Statement. (a) To the best
knowledge of NBC, no statement contained in any schedule, certificate or
other document furnished or to be furnished in writing by or on behalf of
NBC or any of its affiliates to FFBS 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.
(b) None of the information provided by NBC or any NBC subsidiary for
inclusion in the registration statement on Form S-4 to be filed with the
SEC by NBC under the Securities Act of 1933, as amended ("Securities Act")
relating to shares of NBC Common Stock to be issued in the Parent Merger,
including the prospectus (the "Prospectus") relating to such issuance and
the joint proxy statement and forms of proxy relating to the vote of NBC
shareholders with respect to the Parent Merger (as amended, supplemented or
modified, the "Proxy Statement") contained therein (such registration
statement as amended, supplemented or modified, the "Registration
Statement"), at the time the Registration Statement becomes effective or,
in the case of the Proxy Statement, at the date of mailing, will contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading.
7.12 Material Contract Defaults. Neither NBC nor any NBC subsidiary nor,
to the knowledge of NBC and Bank, the other party thereto is in default in
any respect under any contract to which any of NBC or any NBC subsidiary is
a party or by which its respective assets, business, or operations may be
bound or affected or under which it or its respective assets, business, or
operations receives benefits, other than any such default or defaults which
would not have, in the aggregate, a material adverse effect on NBC, and
there has not occurred any event that, with the lapse of time or the giving
of notice or both, would constitute such a default. All material contracts
to which NBC and the NBC subsidiaries are parties are valid, binding and
in full force and effect.
7.13 Tax Matters. (a) NBC, the NBC subsidiaries and any affiliated
group (within the meaning of Section 1504(a) of the Code) of which NBC or
any NBC subsidiary is a member have duly and properly filed all federal,
state, local and other tax returns required to be filed by them 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 NBC or the NBC subsidiaries 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 NBC and Bank, threatening to assert any deficiency or claim for
additional taxes, nor to the knowledge of NBC or Bank is there any basis
for any such assertion or claim. NBC and the NBC subsidiaries have
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. NBC
and NBC subsidiaries have complied with all applicable state law sales and
use tax collection and reporting requirements.
(b) Adequate provision for any federal, state or local taxes due or to
become due for NBC or the NBC subsidiaries for any period or periods
through and including December 31, 1997, has been made and is reflected on
the December 31, 1997, consolidated financial statements last filed by NBC
as part of a publicly available regulatory document and has been or will be
made with respect to periods ending after December 31, 1997.
7.14 Environmental Matters. To the knowledge of NBC, neither NBC nor any
NBC subsidiary owns or leases any properties affected by toxic waste.
Neither NBC nor any NBC subsidiary has knowledge of, nor has NBC or any NBC
subsidiary 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 NBC or
any NBC subsidiary 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 NBC or any NBC subsidiary, or otherwise form the basis of any
claim, action, suit, proceeding, hearing or investigation against or of NBC
or any NBC subsidiary, 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 NBC and Bank, threatened against NBC
or any NBC subsidiary relating in any way to such hazardous substance laws
or any regulation, order, decree, judgment or injunction issued, entered,
promulgated or approved thereunder. To the knowledge of NBC and Bank,
neither NBC nor any NBC subsidiary has made or participated in any loan to
any person who is subject to any civil, criminal or administrative claim,
action, suit, proceeding, hearing or investigation relating in any way to
such hazardous substance laws or any regulation, order, decree, judgment or
injunction issued, entered, promulgated or approved thereunder and relating
to the property secured by such loan.
7.15 Insurance. NBC and the NBC subsidiaries have in effect insurance
coverage with reputable insurers which, in respect of amounts, types and
risks insured, is reasonably adequate for the business in which NBC and the
NBC subsidiaries are engaged. A schedule of all insurance policies in
effect as to NBC and the NBC subsidiaries (the "Insurance Policies") has
been previously disclosed (other than policies pertaining to secured loans
made in the ordinary course of business). All 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 NBC's financial statements last filed
by NBC as part of a publicly available regulatory document). 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. To the knowledge of NBC, neither NBC nor the NBC subsidiaries
have been refused any insurance with respect to any material properties,
assets or operations, nor has any coverage been limited or terminated by
any insurance carrier to which it has applied for any such insurance or
with which it has carried insurance during the last three (3) years.
7.16 Accounting and Tax Treatment. Neither NBC nor any of its affiliates
has taken or agreed to take any action that or has failed to take any
action the result of which would (i) prevent NBC from accounting for the
Parent Merger as a pooling of interests for accounting and financial
reporting purposes or (ii) prevent the Merger from qualifying as a
"reorganization" under Section 368(a) of the Code.
7.17 Undisclosed Liabilities. Neither NBC nor the NBC subsidiaries have
any material liabilities other than those liabilities disclosed on or
provided for in the balance sheet as of June 30, 1998, and liabilities
incurred since such date in the ordinary course of business consistent with
past practices.
7.18 Loans. All of the loans on the books of NBC and the NBC
subsidiaries are valid and properly documented and were made in the
ordinary course of business.
7.19 Year 2000 Readiness. NBC and the NBC subsidiaries have instituted and
are conducting a program to assess and correct Year 2000 issues and, to the
best of knowledge of NBC and NBC subsidiaries, NBC and NBC subsidiaries
have met all targeted goals to be substantially Year 2000 compliant.
ARTICLE VIII
Covenants of the Parties
8.1 Exclusive Dealings. FFBS 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 FFBS or
any of its subsidiaries, or any proposal or offer to inquire in any manner
a substantial equity interest in, or a substantial portion of the assets of
FFBS 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, unless FFBS is advised by legal counsel that such communication
is required under applicable law or that the failure to do so would cause
the members of the Board of Directors to be in breach of their fiduciary
duties under applicable laws. FFBS will immediately cease and cause to be
terminated any existing activities, discussions or negotiations previously
conducted with any parties other than NBC with respect to any of the
foregoing.
8.2 Conduct of Business. During the period from the date of this
Agreement to the Effective Time, FFBS, and its subsidiary, will conduct
their business and engage in transactions only in the ordinary course and
consistent with prudent banking practices. FFBS and its subsidiary will
operate their business in substantially the same manner as before this
Agreement, and will maintain and keep their property in good repair and
properly insured. FFBS will not, without the prior express consent of NBC
(which will not be unreasonably withheld):
(a) Pay any dividends prior to the Effective Time other than regular
anticipated semi-annual dividends of 30 cents per share to its shareholders
payable in January 1999 and July 1999;
(b) Except as set forth in Schedule 8.2(b), lend an amount exceeding
$200,000.00 to an individual or entity or lend an amount, which when
aggregated with other loans to the same individual or entity or related
interests, would exceed $300,000.00;
(c) Hire new, additional or replacement employees;
(d) Grant promotions to current employees except for planned promotions as
set forth on Schedule 8.2(d) to this Agreement;
(e) Except as set forth in Schedule 8.2(e), make, incur, or agree to
incur, any single capital expenditure which alone exceeds $10,000.00 or
enter into any lease agreement with total rental payments exceeding
$10,000.00;
(f) Pay, or agree to pay, any bonus to any employee, officer or director,
other than payments of scheduled bonuses as set forth in Schedule 8.2(f) to
this Agreement;
(g) Grant any raise or salary increase to any employee, officer, or
director except anticipated raises as set forth in Schedule 8.2(g) to this
Agreement;
(h) Enter into any contracts, contract renewals or extensions except such
contracts which will not obligate FFBS to pay more than $5,000.00;
(i) Purchase, lease or sell any assets outside the normal course of
business unless such anticipated transactions are set forth in Schedule
8.2(i) to this Agreement;
(j) Purchase or sell investment securities;
(k) Issue any additional capital stock or declare any stock dividend or
stock split;
(l) Establish any employee benefits in addition to those in effect on the
date of this Agreement, as disclosed heretofore to NBC; and
(m) Grant additional options to purchase shares of FFBS Common Stock other
than as may be issued pursuant to the Stock Option Agreement between NBC
and FFBS of even date herewith.
8.3 Current Information. During the period from the date of this
Agreement to the Effective Time, FFBS 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. FFBS 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.
8.4 Access to Properties and Records; Confidentiality. (a) For purposes
of allowing NBC and its counsel to prepare regulatory submissions, FFBS
shall permit NBC reasonable access to its property, and shall disclose and
make available to NBC all documents relating to the assets, stock
ownership, operations, obligations and liabilities of FFBS and its
subsidiary including all books of accounts, ledgers, tax records, minutes,
corporate documents, contracts, regulatory filings, litigation files,
compensation plans and any other materials pertaining to matters in which
NBC may have a reasonable interest in light of the proposed Parent Merger.
No disclosure will be required which would violate any law, legal ruling or
attorney-client privilege, nor will disclosure be required of any materials
prepared by Trident Financial Corporation and/or Trident Securities for
FFBS in connection with negotiations which were consummated by this
Agreement, nor with respect to such materials or communications prepared
for or received from third parties concerning a possible merger acquisition
or affiliation with FFBS, nor with respect to references in FFBS minutes to
such possible transactions;
(b) NBC shall afford to FFBS and its authorized agents and representatives
reasonable access, upon reasonable notice to an executive officer of NBC
and during normal business hours, to all contracts, documents and
information of or relating to the assets, liabilities, business,
operations, personnel and other aspects of relevance, in the reasonable
judgment of NBC, to the transactions contemplated hereby. NBC shall cause
its personnel, attorneys and accountants to provide assistance to FFBS in
FFBS's investigation of matters relating to the Parent Merger, including
allowing FFBS and its authorized agents and representatives access to its
operating sites and facilities; provided, however, that FFBS's
investigation shall be conducted in a manner which does not unreasonably
interfere with NBC's normal operations, customers, and employee relations;
provided further, however, that, in providing the foregoing access, NBC
shall not be required to jeopardize its attorney-client privilege (NBC
hereby agreeing to use all reasonable efforts to make appropriate
alternative disclosure arrangements in such circumstances).
(c) All information furnished by a party to another pursuant hereto shall
be treated as the sole property of the party furnishing such information
until consummation of the proposed Parent Merger and, if such Parent Merger
shall not occur, the party receiving such information shall return all
materials relating to such information, and shall use its best efforts to
keep all such information confidential, and shall not directly or
indirectly use such information for any competitive or commercial purpose.
The obligation to keep such information confidential shall continue if
this Parent Merger is abandoned and shall apply only to such information
not available to the party from any other source; nor shall it apply to
information which must be disclosed in accordance with a valid court order.
8.5 Interim Financial Statements. When interim quarterly financial
statements are completed by each party, each party will deliver to the
other a copy of such interim financial statements.
8.6 Approval of Shareholders. The respective Boards of Directors of FFBS
and NBC will take all steps necessary to duly call, give notice of, convene
and hold a special meeting of its shareholders as soon as practicable for
the purpose of approving and adopting this Agreement and the transaction
contemplated hereby and for such other purposes as may be needed. The
Boards of Directors of FFBS and NBC will recommend approval of all such
actions to their respective shareholders, cooperate fully in securing
regulatory approval and consummating the Parent Merger and use their best
efforts to obtain all necessary approvals of this transaction; provided,
that the Board of Directors of FFBS may withdraw or refuse to make such
recommendation only if the Board of Directors shall determine in good faith
that such recommendation should not be made in view of its fiduciary duty
to FFBS's shareholders following (i) the consideration of advice of legal
counsel that making such recommendation or the failure to withdraw or
modify such recommendation would, more likely than not, constitute a breach
of the fiduciary duties of such Board to shareholders of FFBS, or (ii) the
withdrawal by FFBS's financial advisor of its opinion referred to in
Section 9.3(e) or the delivery to the FFBS Board of Directors of advice
from its financial advisor that the Merger Consideration is not fair or is
inadequate to the shareholders of FFBS from a financial point of view.
8.7 Cooperation. These parties shall cooperate in joint efforts to
obtain unconditional regulatory approval of the Parent Merger, and the
obligation of each party to consummate the Parent Merger is contingent upon
the receipt of all regulatory and U. S. Department of Justice approvals
without conditions which are unacceptable to either party. FFBS shall use
its best efforts to cause its officers, directors and employees to support
the actions and objectives contemplated by this Agreement.
8.8 Unusual Events. Until the Effective Time, FFBS 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.
8.9 FFBS Employees. All FFBS employees will continue to serve at the
discretion of NBC. The FFBS employees set forth in Schedule 8.9 will be
offered a "pay to stay" benefit of 25% of their current annual base salary
to continue to serve from the date of this Agreement through the actual
consolidation of operating and accounting systems of Thrift and Bank , to
be paid in a lump sum immediately following successful consolidation of the
two systems or December 31, 1999, whichever occurs first. NBC will pay
severance benefits of one week's base pay for each year or fraction thereof
of service for a minimum of four weeks pay and up to a total of eight
weeks pay for each non-officer employee and up to twelve weeks pay for each
officer in the event of termination within twelve months of closing, except
terminations for cause. NBC recognizes FFBS Employment Agreements dated
April 14, 1994, with officers listed on Schedule 8.9 with three year terms
which have been renewed annually and now extend through April 2001. These
will not be further extended and will terminate in April 2001, unless a
covered officer waives rights, claims or payments due under such agreements
or enters into a replacement agreement with NBC, whether prior to or
subsequent to the execution of this Agreement. Until such time each such
covered officer will be entitled to the protection of the Section 5
provisions thereof, and any change in control payments required by such
agreements, as set forth in Schedule 8.9, will be made by NBC as required.
8.10 Employee Benefit Plans. The FFBS ESOP will be terminated on or before
closing, in which case the loan will be paid in full and the shares will be
fully allocated among FFBS participants. FFBS plans other than the ESOP
will be discontinued and the participants enrolled in NBC plans as
permitted by ERISA. The FFBS employees will be offered dental and health
insurance now available to NBC employees on the same terms and conditions
as then available to NBC employees. Accrued vacation (not exceeding three
weeks)and sick leave (not exceeding 90 days) for FFBS employees will be
transferred and honored by NBC, but any such accrued vacation time must be
used entirely by the end of the calendar year in which the merger is
consummated. On or before the Effective Time, FFBS and E. ▇▇▇▇▇ ▇▇▇▇▇▇▇,
III shall enter into a supplemental executive retirement plan providing
benefits as set forth in Schedule 8.10. The present FFBS pension plan
shall be terminated, and such plan benefits may be amended provided that
the amendments shall not increase any plan funding requirements in excess
of plan assets, net of termination expenses, determined on a termination
basis, and FFBS employees shall participate in the NBC pension plan to the
same extent as similarly situated NBC employees. Upon entry into the NBC
plans, FFBS employees shall be credited with the number of years of service
as credited under the FFBS plans for vesting, and such service shall also
apply for purposes of satisfying any waiting periods, evidence of
insurability requirements, or the application of any pre-existing condition
or limitations as permitted by the respective NBC plans or providers.
Funding for FFBS employees will commence upon entry into NBC plans with no
funding for prior participation.
8.11 Directors. Two present directors of FFBS shall become directors of
NBC in accordance with Section 4.1 of this Agreement.
8.12 Registration Statement and Regulatory Filings. (a) NBC shall file
with the SEC as soon as reasonably practical after the execution of this
Agreement, a Registration Statement complying with all SEC and other
regulatory requirements and will amend and supplement the same as may be
required or appropriate. The Proxy Statement/Prospectus (to be delivered
to shareholders of each party) in connection therewith must be reasonably
acceptable to FFBS and will be used in connection with the meetings of the
shareholders of FFBS and NBC. NBC will also prepare and file all documents
appropriate to comply with securities laws of the State of Mississippi and
the State of Delaware and other applicable laws and regulations. In
advance of the filing of such Registration Statement and other documents,
NBC will furnish copies thereof to FFBS and its counsel and subsequent to
the filings shall promptly advise them of any material communication
received from SEC or any state securities commission relating thereto. No
information contained in any such documents shall be false or misleading
with respect to any material fact or shall omit to state any material fact.
FFBS will provide to NBC any information with respect to FFBS requested by
NBC to be included in the Registration Statement.
(b) NBC will use its best reasonable efforts to obtain the regulatory
approvals described herein and FFBS will cooperate fully in the process of
obtaining such approvals. The obligation to take all reasonable actions in
this regard shall not be construed as including an obligation to accept any
terms or conditions to a consent or approval that are not acceptable either
to NBC or to FFBS, provided that such unacceptable conditions would cause
material adverse economic results or would require NBC to change its
present business practices or that of any subsidiary. NBC shall provide
FFBS with copies of all applications filed and all responses when received.
8.13 Registration of Stock Options. NBC will register the issuance of all
shares of NBC Common Stock to be issued upon exercise of the exchange stock
options, and will take such action as may be necessary to cause such shares
of NBC Common Stock not to be "restricted securities" within the meaning of
Rule 144 under the Securities Act of 1993, as amended.
8.14 Pooling-of-Interests and Tax-Free Treatment. Each of the parties
hereto shall use its reasonable best efforts (i) to cause the Parent Merger
to qualify for pooling-of-interests accounting treatment and (ii) to cause
the Parent Merger to constitute a "reorganization" under Section 368(a) of
the Code.
8.15 Agreements of Affiliates. FFBS shall use its best efforts to cause
each person who may be at the Effective Time or was on the date hereof an
"affiliate" of FFBS for purposes of Rule 145 under the Securities Act or of
determining the qualification of the Parent Merger as a pooling of
interests for accounting and financial reporting purposes, to execute and
deliver to NBC, no less than 45 days prior to the date of the meeting of
FFBS shareholders to approve the Parent Merger, the written undertakings in
the form attached hereto as Exhibit 1.5(f). On or prior to such delivery
date, FFBS shall provide NBC with a letter specifying, to the best of its
knowledge, all of the persons who may be deemed to be "affiliates" of FFBS
under the preceding sentence.
ARTICLE IX
Closing Conditions
9.1 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 FFBS and NBC at the meetings of the shareholders of
FFBS and NBC pursuant to Section 8.6 hereof, in accordance with the
respective Certificate of Incorporation of FFBS, the Articles of
Incorporation of NBC, and the respective By-Laws of each and the laws of
the states of Delaware and Mississippi.
(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 Parent Merger.
(c) NBC and FFBS shall have received an opinion of special tax advisor,
▇. ▇. ▇▇▇▇ & Company, to the effect that the transaction will be treated,
and will qualify, as a tax-free reorganization within the meaning of
Section 368 of the Code; that NBC and FFBS will each be a "party to the
reorganization" within the meaning of Section 368(b); that no gain or loss
will be recognized by FFBS on account of the conversion of its stock into
NBC stock; and that the combination of such stock delivered to FFBS
shareholders and cash paid to satisfy requirements described herein shall
be in accordance with the requirements necessary for this transaction to be
treated and qualify as a Pooling of Interests Transaction for accounting
purposes applying GAAP.
(d) The SEC shall have declared the Registration Statement effective; and
on the Closing Date and at the Effective time, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been initiated or then threatened
by the SEC.
(e) All permits, consents, 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.
9.2 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 FFBS 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 FFBS 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 FFBS.
(b) All action required to be taken by, or on the part of, FFBS and its
shareholders to authorize the execution, delivery, and performance of this
Agreement by FFBS and the consummation of the transaction contemplated
hereby shall have been duly and validly taken by the Board of Directors of
FFBS 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 FFBS, 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 FFBS officers or governmental officials as counsel deems
appropriate.
(d) The net worth of FFBS at the time of closing shall be no less than
$22,500,000 as determined under GAAP excluding the effect of any actions
taken pursuant to subparagraph (e) below.
(e) The loan and lease loss reserves of FFBS at the Effective Time shall
be an amount not less than one per cent (1%) of gross loans outstanding
immediately prior to the Effective Time after any charge-offs taken by FFBS
in the ordinary course of its business after the date of this Agreement and
prior to the Effective Time and after any additional charge offs directed
by NBC as a result of additional loan portfolio due diligence done by it
after this date, or $1,035,000 whichever is greater. FFBS will not adjust
its loan loss reserves until after receipt of all regulatory and
stockholder approvals, and just prior to the Effective Time.
(f) The officers listed on Schedule 9.2(f) shall have entered into
Employment Agreements with NBC in the form set forth in Schedule 9.2(f)
hereto, and none of such officers shall have terminated employment with
FFBS prior to the Effective Time unless such termination is because of
death or disability.
FFBS shall furnish NBC such certificates sufficient to evidence fulfillment
of the conditions set forth in this Section 9.2 as NBC may reasonably
request.
9.3 Conditions Precedent to the Obligations of FFBS under this Agreement.
The obligations, conditions, covenants and agreements of FFBS 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 FFBS:
(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 FFBS shall have received a certificate to that
effect signed by the Chief Executive Officer and Chief Financial Officer 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 and shareholders of NBC and
FFBS and NBC and FFBS shall have received certified copies of the
resolutions evidencing such authorization. In order to complete such a due
diligence review of NBC, FFBS shall have access to all appropriate NBC
books, records and other documents.
(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 Parent Merger and the transaction contemplated hereby and which by the
terms herein are to be obtained by NBC.
(d) FFBS shall have completed a due diligence review of NBC, and its
subsidiaries, to its sole satisfaction, and prior to the closing, nothing
shall have come to the attention of FFBS with respect to the operations,
assets, financial conditions or business of NBC, or any of its
subsidiaries, which has or may have a material adverse effect on the
condition of NBC as determined by FFBS.
(e) FFBS has received from a financial advisor a fairness opinion in a
form and substance satisfactory to it to the effect that the Parent Merger
is fair from a financial point of view to the shareholders of FFBS, and
such fairness opinion shall be satisfactorily updated at the date of the
mailing of the prospectus/proxy statement and again at closing.
(f) FFBS shall have received an opinion from counsel to NBC, dated as of
the Effective Time, and in form and substance satisfactory to counsel for
FFBS. In rendering such opinion, counsel may rely as to matters of fact,
upon such NBC officers or governmental officials as counsel deems
appropriate.
ARTICLE X
Closing
10.1 Time and Place. Subject to the provisions of Articles VIII and X
hereof, the closing of the transaction contemplated hereby shall take place
at the offices of NBC. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
at 9:00 a.m. local time, on the last business day of the month in which all
conditions precedent to closing are met or at such other date as NBC and
FFBS may agree.
10.2 Deliveries at Closing. Subject to the provisions of Article VIII and
X hereof, at the closing there shall be delivered to NBC and FFBS the
opinions, certificates, and other documents required under the provisions
of this agreement.
ARTICLE XI
Termination, Amendment and Waiver
11.1 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 FFBS;
(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 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;
(d) By FFBS in the event that prior to the Effective Time it is determined
that the Parent Merger will not qualify as a tax-free reorganization and
exchange under Section 368(a) of the Internal Revenue Code as determined by
special tax counsel;
(e) 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 June 30,
1998;
(f) By either party if the Parent Merger shall not have been completed by
September 30, 1999, unless that date is extended by mutual consent of both
parties;
(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) By FFBS if NBC fails to increase the Exchange Rate as required by
Section 1.4 hereof.
11.2 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 12.3 hereof there shall be no further liability on
the part of NBC or FFBS, 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.
11.3 Amendments and Waivers. Subject to applicable law, at any time prior
to the consummation of the Parent Merger, whether before or after approval
by the respective shareholders of the parties, 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 VIII and IX. Provided,
however, after approval hereto by the respective 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 FFBS 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 XII
Miscellaneous
12.1 Expenses. NBC shall pay all reasonable expenses subsequent to the
Effective Time of the Parent Merger, including reasonable counsel fees for
present counsel to FFBS in consultation with NBC, in connection with this
Agreement and the transactions hereunder, to the extent NBC deems such
services appropriate. All expenses, including, but not limited to,
investment advisor fees, brokers' fee, commission, finder's fees, and legal
fees incurred in connection with the merger and up to the Effective Time
shall be paid by the party incurring such costs; provided, however, NBC
shall pay the cost of printing and mailing the Prospectus/Proxy Statement
to FFBS shareholders.
12.2 Indemnification. After the Effective Time, NBC shall indemnify,
defend and hold harmless the directors, officers, employees, and agents of
FFBS and its subsidiary (each a "FFBS indemnified party") against all
liabilities, including reasonable attorney fees, expenses, judgments, fines
and amounts paid in settlement, arising out of actions or omissions
occurring at or prior to the Effective Time, including the Parent Merger
and transactions contemplated by this Agreement, to the full extent
permitted by Delaware law and as would have been permitted by the
Certificate of Incorporation and By-Laws of FFBS prior to the Parent
Merger. FFBS and the indemnified parties may retain counsel reasonably
satisfactory to such party after consultation with NBC; provided, however,
that:
(1) NBC shall have the right to assume the defense thereof and upon such
assumption, NBC shall not be liable to any FFBS indemnified party for any
legal expenses subsequently incurred except that if NBC elects not to
assume such defense or if counsel for the FFBS indemnified party reasonably
advises that there are issues which raise conflicts of interest between NBC
and the FFBS indemnified party, such party may retain separate counsel
after consultation with NBC, in which case NBC shall bear reasonable
expenses thereof.
(2) An FFBS indemnified party shall consult and obtain the approval of NBC
prior to affecting any settlement, which said approval shall not be
unreasonably withheld; and
(3) NBC shall have no obligation hereunder to any indemnified party when
and if a court of competent jurisdiction shall ultimately determine, and
such determination shall have become final, that indemnification of such
FFBS indemnified party in the manner contemplated hereby is prohibited by
applicable law.
Prior to the Effective Time, NBC and FFBS shall cooperate in obtaining
extensions of directors' and officers' liability coverage maintained by
FFBS for a period of five (5) years from the Effective Time, or at its
option, NBC may substitute similar coverage with another insurance carrier
therefor. NBC shall pay premiums for such insurance coverage provided for
herein.
12.3 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
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.
12.4 Disclosures. Upon the execution of this Agreement, the Parent Merger
shall be announced by these parties in a mutually agreed upon manner, with
such other disclosures to the shareholders and public as may be required or
agreed upon.
12.5 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.
12.6 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 FFBS 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.
12.7 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.
12.8 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.
12.9 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 NBC: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
National Bank of Commerce
P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To FFBS: E. ▇▇▇▇▇ ▇▇▇▇▇▇▇ III
First Federal Bank for Savings
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or such other address as either party may designate by notice to the other.
12.10 Section Headings. The section headings are for reference only
and shall not limit or control the mean of any provision of this agreement.
12.11 Governing Law. This Agreement shall be governed by the laws of
the State of Mississippi and where necessary with respect to the
incorporation of FFBS in Delaware by the corporate laws of Delaware to the
extent that federal law does not apply.
12.12 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 FFBS and Thrift to enforce rights set forth herein applicable
to them.
IN WITNESS WHEREOF, the Boards of Directors of NBC Capital Corporation and
FFBS Bancorp, respectively, have each executed this Agreement and directed
the authorized signature of the undersigned duly authorized officers as of
this ____ day of _____________________, 1999.
NBC CAPITAL CORPORATION
BY: ______________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman of the
the Board and Chief Executive
Officer
ATTEST:
_______________________________
SECRETARY
FFBS BANCORP, INC.
BY: ______________________________________
E. ▇▇▇▇▇ ▇▇▇▇▇▇▇, III, President
Chief Executive Officer
ATTEST:
________________________________
SECRETARY
