Exhibit 10.A
Agreement and Plan of Merger
by and between
Xxxxxx Xxxxxx, Inc.
and
Regions Financial Corporation
Dated as of December 17, 2000
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Table of Contents
Page
Agreement and Plan of Merger X-0
Xxxxxxxx X-0
ARTICLE 1-TRANSACTIONS AND TERMS OF MERGER A-7
1.1 Merger A-7
1.2 Time and Place of Closing A-7
1.3 Effective Time A-7
1.4 Execution of Support Agreements A-7
1.5 Execution of the Termination Fee Agreement A-7
ARTICLE 2-TERMS OF MERGER A-7
2.1 Certificate of Incorporation A-7
2.2 Bylaws A-8
2.3 Directors and Officers A-8
ARTICLE 3-MANNER OF CONVERTING SHARES A-8
3.1 Conversion of Shares A-8
3.2 Anti-Dilution Provisions A-10
3.3 Shares Held by Xxxxxx or Regions A-10
3.4 Fractional Shares A-11
3.5 Conversion of Stock Rights A-11
ARTICLE 4-EXCHANGE OF SHARES A-12
4.1 Exchange Procedures A-12
4.2 Rights of Former Xxxxxx Stockholders A-13
ARTICLE 5-REPRESENTATIONS AND WARRANTIES OF XXXXXX A-14
5.1 Organization, Standing, and Power A-14
5.2 Authority; No Breach of Agreement A-14
5.3 Capital Stock A-15
5.4 Xxxxxx Subsidiaries A-15
5.5 SEC Filings; Financial Statements A-16
5.6 Absence of Undisclosed Liabilities A-17
5.7 Absence of Certain Changes or Events A-17
5.8 Tax Matters A-17
5.9 Assets A-18
5.10 Environmental Matters A-18
5.11 Permits A-19
5.12 Compliance with Laws A-20
5.13 Labor Relations A-21
5.14 Employee Benefit Plans A-21
5.15 Material Contracts A-23
5.16 Legal Proceedings A-24
5.17 Reports A-24
5.18 Statements True and Correct A-24
5.19 Tax and Regulatory Matters A-25
5.20 Intellectual Property A-25
5.21 State Takeover Laws A-25
5.22 Charter Provisions A-25
5.23 Derivatives X-00
X-0
5.24 Fairness Opinion A-26
5.25 Contracts with Clients A-26
5.26 Investment Advisory Activities A-26
ARTICLE 6-REPRESENTATIONS AND WARRANTIES OF REGIONS A-27
6.1 Organization, Standing, and Power A-27
6.2 Authority; No Breach of Agreement A-27
6.3 Capital Stock A-28
6.4 Regions Subsidiaries A-28
6.5 SEC Filings; Financial Statements A-29
6.6 Absence of Undisclosed Liabilities A-29
6.7 Absence of Certain Changes or Events A-30
6.8 Compliance with Laws A-30
6.9 Tax Matters A-30
6.10 Legal Proceedings A-31
6.11 Reports A-31
6.12 Statements True and Correct A-31
6.13 Tax and Regulatory Matters A-32
6.14 Derivatives A-32
6.15 Funds A-32
6.16 Ownership of Xxxxxx Capital Stock A-32
ARTICLE 7-CONDUCT OF BUSINESS PENDING CONSUMMATION A-32
7.1 Affirmative Covenants of Both Parties A-32
7.2 Negative Covenants of Xxxxxx A-33
7.3 Adverse Changes in Condition A-35
7.4 Reports A-35
ARTICLE 8-ADDITIONAL AGREEMENTS A-35
8.1 Registration Statement; Proxy Statement;
Stockholder Approval A-35
8.2 Applications A-36
8.3 Filings with State Offices A-36
8.4 Agreement as to Efforts to Consummate A-36
8.5 Investigation and Confidentiality A-37
8.6 Press Releases A-37
8.7 No Solicitation A-37
8.8 Tax Treatment A-38
8.9 Agreement of Affiliates A-38
8.10 Employee Benefits and Contracts A-39
8.11 Indemnification A-39
8.12 Exemption from Liability Under Section 16(b) A-41
8.13 Investment Companies A-41
8.14 Management Contract Consents A-42
8.15 Retention Program A-43
ARTICLE 9-CONDITIONS PRECEDENT TO OBLIGATIONS
TO CONSUMMATE A-43
9.1 Conditions to Obligations of Each Party A-43
9.2 Conditions to Obligations of Regions A-44
9.3 Conditions to Obligations of Xxxxxx X-00
X-0
ARTICLE 10-TERMINATION A-46
10.1 Termination A-46
10.2 Effect of Termination A-46
10.3 Non-Survival of Representations
and Covenants A-47
ARTICLE 11-MISCELLANEOUS A-47
11.1 Definitions A-47
11.2 Expenses A-55
11.3 Brokers and Finders A-55
11.4 Entire Agreement A-56
11.5 Amendments A-56
11.6 Waivers A-56
11.7 Assignment A-56
11.8 Notices A-57
11.9 Governing Law A-57
11.10 Counterparts A-57
11.11 Captions A-57
11.12 Interpretations A-57
11.13 Enforcement of Agreement A-58
11.14 Severability X-00
Xxxxxxxxxx X-00
X-0
List of Exhibits
Exhibit Number Description
1. Form of Support Agreement. (1.4).
2. Form of Termination Fee Agreement. (1.4).
3. Form of Affiliate Agreement. (8.11).
[Exhibits Omitted]
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Agreement and Plan of Merger
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and
entered into as of December 17, 2000, by and between XXXXXX XXXXXX,
INC. ("Xxxxxx"), a corporation organized and existing under the Laws
of the State of Tennessee, with its principal office located in
Memphis, Tennessee; and REGIONS FINANCIAL CORPORATION ("Regions"),
a corporation organized and existing under the Laws of the State
of Delaware, with its principal office located in Birmingham, Alabama.
Preamble
The Boards of Directors of Xxxxxx and Regions are of the opinion
that the transactions described herein are in the best interests of
the parties to this Agreement and their respective stockholders.
This Agreement provides for the acquisition of Xxxxxx by Regions
pursuant to the merger of Xxxxxx with and into Regions. At the
effective time of the merger, the outstanding shares of the
capital stock of Xxxxxx shall be converted into shares of the
common stock of Regions (except as provided herein). As a
result, stockholders of Xxxxxx shall become stockholders
of Regions, and each of the subsidiaries of Xxxxxx shall
continue to conduct its business and operations as a
subsidiary of Regions.
The transactions described in this Agreement are subject
to the approvals of the stockholders of Xxxxxx, the Board
of Governors of the Federal Reserve System, the National
Association of Securities Dealers, Inc., and certain state
regulatory authorities, and the satisfaction of certain
other conditions described in this Agreement. It is the
intention of the parties to this Agreement that the Merger
for federal income tax purposes shall qualify as a
"reorganization" within the meaning of Section 368(a)
of the Internal Revenue Code and that this Agreement shall
constitute a "plan of reorganization" for purposes of
Sections 354 and 361 of the Internal Revenue Code.
As a condition and inducement to Regions' willingness
to enter into this Agreement, (i) Xxxxxx'x directors and
certain executive officers are executing and delivering to
Regions an agreement (a "Support Agreement"), in
substantially the form of Exhibit 1, and (ii) Xxxxxx and
Regions are entering into a termination fee agreement
(the "Termination Fee Agreement"), in substantially the
form of Exhibit 2.
In addition, Regions and Xxxxxx have agreed, in
connection with the transactions contemplated hereby,
to establish a retention program on substantially the
terms described herein, the purpose of which is to retain
the services of certain employees of Xxxxxx following the
consummation of the transactions contemplated hereby.
Certain terms used in this Agreement are defined in
Section 11.1 of this Agreement.
NOW, THEREFORE, in consideration of the above and the
mutual warranties,
representations, covenants, and agreements set forth herein,
and intending to be legally bound hereby, the Parties agree
as follows:
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ARTICLE 1
Transactions and Terms of Merger
1.1 Merger. Subject to the terms and conditions
of this Agreement, at the Effective Time, Xxxxxx shall be
merged with and into Regions in accordance with the provisions
of Section 00-00-000 of the TBCA and Sections 252 and 258 of
the DGCL and with the effect provided in Section 00-00-000 of
the TBCA and Section 259 of the DGCL, respectively (the "Merger").
Regions shall be the Surviving Corporation resulting from the
Merger and shall continue to be governed by the Laws of the
State of Delaware. The Merger shall be consummated pursuant
to the terms of this Agreement, which has been approved and
adopted by the respective Boards of Directors of Xxxxxx and
Regions.
1.2 Time and Place of Closing. The consummation of
the Merger (the "Closing") shall take place at 9:00 A.M. on
the date that the Effective Time occurs (or the immediately
preceding day if the Effective Time is earlier than 9:00 A.M.),
or at such other time as the Parties, acting through their duly
authorized officers, may mutually agree. The place of Closing
shall be at such location as may be mutually agreed upon by the
Parties.
1.3 Effective Time. The Merger and the other
transactions contemplated by this Agreement shall become
effective on the date and at the time the Tennessee Articles
of Merger reflecting the Merger shall become effective with
the Secretary of State of the State of Tennessee and the Delaware
Certificate of Merger reflecting the Merger shall become
effective with the Secretary of State of the State of Delaware
(the "Effective Time"). Subject to the terms and conditions
hereof, unless otherwise mutually agreed upon by the duly
authorized officers of each Party, the Parties shall use their
reasonable efforts to cause the Effective Time to occur on
such date as may be designated by Regions within 10 days
following the later to occur of (i) the effective date of
the last required Consent of any Regulatory Authority having
authority over and approving or exempting the Merger (without
regard to any requisite waiting period in respect thereof),
and (ii) the date on which the stockholders of Xxxxxx approve
the matters relating to this Agreement, such date to be
designated by Regions within two business days after the
later to occur of
the foregoing events.
1.4 Execution of Support Agreements. Simultaneously
with the execution of this Agreement and as a condition hereto,
the directors and certain executive officers of Xxxxxx are
executing and delivering to Regions a Support Agreement.
1.5 Execution of the Termination Fee Agreement.
Simultaneously with the execution of this Agreement and as
a condition hereto, Xxxxxx is executing and delivering to
Regions the Termination Fee Agreement.
ARTICLE 2
Terms of Merger
2.1 Certificate of Incorporation. The Certificate
of Incorporation of Regions in effect immediately prior to
the Effective Time shall be the Certificate of Incorporation
of the Surviving Corporation after the Effective Time until
otherwise amended or repealed.
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2.2 Bylaws. The Bylaws of Regions in effect
immediately prior to the Effective Time shall be the Bylaws
of the Surviving Corporation after the Effective Time until
otherwise amended or repealed.
2.3 Directors and Officers. The directors of
Regions in office immediately prior to the Effective Time,
together with such additional persons as may thereafter be
elected, shall serve as the directors of the Surviving
Corporation from and after the Effective Time in accordance
with the Bylaws of the Surviving Corporation. The officers
of Regions in office immediately prior to the Effective Time,
together with such additional persons as may thereafter be
elected, shall serve as the officers of the Surviving
Corporation from and
after the Effective Time in accordance with the Bylaws
of the Surviving Corporation.
ARTICLE 3
Manner of Converting Shares
3.1 Conversion of Shares. Subject to the
provisions of this Article 3, at the Effective Time,
by virtue of the Merger and without any action on the
part of Regions or Xxxxxx, or the stockholders of either
of the foregoing, the shares of the constituent corporations
shall be converted as follows:
(a) Each share of Regions Common Stock issued and
outstanding immediately prior to the Effective Time
shall remain issued and outstanding from and after
the Effective Time.
(b) Each share of Xxxxxx Common Stock, excluding
shares held by any Xxxxxx Company or any Regions Company,
in each case other than in a fiduciary
capacity or as a result of debts previously contracted
("Treasury Shares"), issued and outstanding at the
Effective Time shall cease to be outstanding and shall
be converted into a multiple (rounded to three decimal
places) of a share of Regions Common Stock (the "Merger
Shares") equal to the quotient obtained by dividing
(i) $27.00 by (ii) the Average Price (the "Exchange
Ratio"); provided, subject to the election rights set
forth in Section 3.1(c) of this Agreement, each holder
of Xxxxxx Common Stock shall be provided with an
opportunity to elect to receive cash consideration
for such holder's shares of Xxxxxx Common Stock in
lieu of receiving any Merger Shares.
(c) Holders of Xxxxxx Common Stock shall be
provided with an opportunity to elect to receive cash
consideration in lieu of receiving Merger Shares in
the Merger, in accordance with the election procedures
set forth below. Holders who are to receive cash in
lieu of exchanging their shares of Xxxxxx Common Stock
for Merger Shares as specified below shall receive an
amount in cash (the "Per Share Cash Consideration") in
respect of each share of Xxxxxx Common Stock that is so
converted equal to $27.00. The aggregate amount of cash
that shall be issued in the Merger to satisfy such elections,
together with the cash amounts to be paid pursuant to
Sections 3.4 and 3.5 of this Agreement, shall not exceed
30%, unless and to the extent Regions determines in its
sole discretion to increase such amount to a number not
in excess of 45%, of the sum of (i) the aggregate
consideration paid in exchange for all shares of Xxxxxx
Common Stock in the Merger, and (ii) the cash amounts to
be paid pursuant to Section 3.5(d) of this Agreement
(as possibly increased, the "Aggregate Cash Amount").
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An election form and other appropriate and customary
transmittal materials (which shall specify that delivery
shall be effected, and risk of loss and title to the
certificates theretofore representing Xxxxxx Common Stock
(the "Old Certificates") shall pass, only upon proper
delivery of such Old Certificates to an exchange agent
designated by Regions (the "Exchange Agent")) in such
form as Regions and Xxxxxx shall mutually agree (the
"Election Form") shall be mailed 25 days prior to the
anticipated Effective Time or on such other date as
Xxxxxx and Regions shall mutually agree (the "Mailing
Date") to each holder of record of Xxxxxx Common Stock
as of five business days prior to the Mailing Date (the
"Election Form Record Date").
Each Election Form shall permit a holder (or the
beneficial owner through appropriate and customary
documentation and instructions) of Xxxxxx Common
Stock to elect to receive cash with respect to all
or a portion of such holder's Morgan Common Stock
(shares as to which the election is made being
referred to as "Cash Election Shares").
Any shares of Xxxxxx Common Stock with respect to which the holder (or the
beneficial owner, as the case may be) shall not have
submitted to the Exchange
Agent an effective, properly completed Election Form
on or before 5:00 p.m. on the 20th day following the
Mailing Date (or such other time and date as Regions
and Xxxxxx may mutually agree) (the "Election Deadline")
shall be converted into
Merger Shares as set forth in Section 3.1(b) of this
Agreement (such shares being referred to as "No Election
Shares").
Regions shall make available one or more Election
Forms as may be reasonably requested by all persons who
become holders (or beneficial owners) of Xxxxxx Common
Stock between the Election Form Record Date and the close
of business on the business day prior to the Election
Deadline, and Xxxxxx shall provide to the Exchange Agent
all information reasonably necessary for it to perform
as specified herein.
Any such election shall have been properly made only
if the Exchange Agent
shall have actually received a properly completed Election
Form by the Election
Deadline. An Election Form shall be deemed properly
completed only if accompanied by one or more certificates
(or customary affidavits and indemnification regarding
the loss or destruction of such certificates or the
guaranteed delivery of such certificates) representing
all shares of Xxxxxx Common Stock covered by such Election
Form, together with duly executed transmittal materials
included in the Election Form. Any Election Form may be
revoked or changed by the person submitting such Election
Form at or prior to the Election Deadline. In the event
an Election Form is revoked prior to the Election Deadline,
the shares of Xxxxxx Common Stock represented by such
Election Form shall become No Election Shares and Regions
shall cause the
certificates representing Xxxxxx Common Stock to be promptly
returned without
charge to the person submitting the Election Form upon
written request to that effect from the person who submitted
the Election Form. Subject to the terms of this Agreement
and of the Election Form, the Exchange Agent shall have
reasonable discretion to determine whether any election,
revocation or change has been properly or timely made
and to disregard immaterial defects in the Election Forms,
and any good faith decisions of the Exchange Agent
regarding such matters shall be binding and conclusive.
Neither Regions nor the Exchange Agent shall be under
any obligation to notify any person of any defect in
an Election Form.
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Within five business days after the Election
Deadline, unless the Effective Time has not yet
occurred, in which case as soon thereafter as practicable,
Regions shall cause the Exchange Agent to effect the
allocation among the holders of Xxxxxx Common Stock in
accordance with the Election Forms as follows:
(i) Cash Elections Less Than or Equal To the
Aggregate Cash Amount. If the amount of cash that
would be issued upon conversion in the Merger of
the Cash Election Shares, together with the cash
amounts to be paid pursuant to Sections 3.4 and 3.5
of this Agreement, is less than or equal to the
Aggregate Cash Amount, then:
(1) all Cash Election Shares shall be converted
into the right to receive
the Per Share Cash Consideration, and
(2) the No Election Shares shall be converted
into the right to receive
the Merger Shares.
(ii) Cash Elections More Than the Aggregate Cash
Amount. If the amount
of cash that would be issued upon the conversion in
the Merger of the Cash
Election Shares, together with the cash amounts to
be paid pursuant to
Sections 3.4 and 3.5 of this Agreement, is greater
than the Aggregate Cash
Amount, then:
(1) all No Election Shares shall be converted
into the right to receive
the Merger Shares,
(2) the Exchange Agent shall select from among
the holders of Cash
Election Shares, by random selection (as described below),
holders of a
sufficient number of shares ("Stock Designees") such that
the amount of
cash that will be issued in the Merger equals as closely
as practicable the
Aggregate Cash Amount, and all shares held by the Stock
Designees shall
be converted into the right to receive the Merger Shares,
and
(3) the Cash Election Shares not held by Stock
Designees shall be
converted into the right to receive the Per Share
Cash Consideration.
The random selection process to be used by the
Exchange Agent shall consist of such processes as shall b
e mutually determined by Regions and Xxxxxx.
3.2 Anti-Dilution Provisions. In the event Xxxxxx
changes the number of shares of Xxxxxx Common Stock issued
and outstanding prior to the Effective Time as a result of
a stock split, reverse stock split, stock dividend, or similar
recapitalization with respect to such stock, the Exchange
Ratio and the Per Share Cash Consideration shall be
proportionately adjusted. In the event Regions changes the
number of shares of Regions Common Stock issued and
outstanding prior to the Effective Time as a result of
a stock split, reverse stock split, stock dividend, or
similar recapitalization with respect to such
stock and the record date therefor (in the case of a
stock dividend) or the effective date thereof (in the
case of a stock split or similar recapitalization for
which a record date is not established) shall be prior
to the Effective Time, the Exchange Ratio shall be
proportionately adjusted.
3.3 Shares Held by Xxxxxx or Regions. Each
of the shares of Xxxxxx Common Stock held by any Xxxxxx
Company or by any Regions Company, in each case other than
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in a fiduciary capacity or as a result of debts previously
contracted, shall be canceled and retired at the Effective
Time and no consideration shall be issued in exchange therefor.
3.4 Fractional Shares. Notwithstanding any other
provision of this Agreement, each holder of shares of
Xxxxxx Common Stock exchanged pursuant to the Merger who
would otherwise have been entitled to receive a fraction
of a share of Regions Common Stock (after taking into
account all Old Certificates delivered by such holder)
shall receive, in lieu thereof, cash (without interest)
in an amount equal to a fractional part of a share of
Regions Common Stock multiplied by the market value of
one share of Regions Common Stock at the Effective Time.
The market value of one share of Regions Common Stock at
the Effective Time shall be the last sale price of
Regions Common Stock at the close of regular trading on
the Nasdaq NMS (as reported by The Wall Street
Journal or, if not reported thereby, any other authoritative
source agreed to by Xxxxxx and Regions) on the last trading
day preceding the Effective Time. No such holder will be
entitled to dividends, voting rights, or any other rights
as a stockholder in respect of any fractional shares.
3.5 Conversion of Stock Rights.
(a) At the Effective Time, each award, option, or other
right to purchase or acquire shares of Xxxxxx Common Stock
pursuant to stock options, stock appreciation rights, or
stock awards ("Xxxxxx Rights"), in each case granted by
Xxxxxx under the Xxxxxx Stock Plans, which is outstanding
at the Effective Time, whether or not exercisable, shall,
except as provided in Section 3.5(d) with respect to the
2000 Non-Employee Director Stock Option Plan (the "2000
Director Stock Option Plan"), be converted into and become
rights with respect to Regions Common Stock, and Regions
shall assume each Xxxxxx Right, in accordance with the terms
of the Xxxxxx Stock Plan and stock option agreement by which
it is evidenced, except that from and after the Effective
Time, (i) Regions and its Compensation Committee shall be
substituted for Xxxxxx and the Committee of Xxxxxx'x Board
of Directors (including, if applicable, the entire Board of
Directors of Xxxxxx) administering such Xxxxxx Stock Plan,
and (ii) (A) each Xxxxxx Right assumed by Regions may be
exercised solely for shares of Regions Common Stock, (B)
the number of shares of Regions Common Stock subject to
such Xxxxxx Right shall be equal to the number of shares
of Xxxxxx Common Stock subject to such Xxxxxx Right
immediately prior to the Effective Time multiplied by the
Exchange Ratio, and (C) the per share exercise price (or
similar threshold price, in the case of stock awards) under
each such Xxxxxx Right shall be adjusted by dividing the per
share exercise (or threshold) price under each such Xxxxxx
Right by the Exchange Ratio and rounding up to the nearest
cent. Notwithstanding the provisions of clause (ii)(B) of
the preceding sentence, Regions shall not be obligated to
issue any fraction of a share of Regions Common Stock upon
exercise of Xxxxxx Rights and any fraction of a share of
Regions Common Stock that otherwise would be subject to a
converted Xxxxxx Right shall represent the right to receive
a cash payment equal to the product of such fraction and
the difference between the market value of one share of
Regions Common Stock and the per share exercise price of
such Right. The market value of one share of Regions
Common Stock shall be the last sale price of Regions
Common Stock on the Nasdaq NMS (as reported by The
Wall Street Journal or, if not reported thereby, any
other authoritative source agreed to by Xxxxxx and Regions)
on the last trading day preceding the date of exercise of
the Xxxxxx Right. In addition, notwithstanding the
provisions of clauses (ii)(A) and (ii)(C) of the first
sentence of this Section 3.5, each Xxxxxx Right which is
an "incentive stock option" shall be adjusted as required
by Section 424 of the Internal Revenue Code and the
regulations promulgated thereunder, so as not to
constitute a modification, extension, or renewal of the option,
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within the meaning of Section 424(h) of the Internal
Revenue Code. Regions agrees to take all necessary steps
to effectuate the foregoing provisions of this Section 3.5.
(b) As soon as reasonably practicable after the
Effective Time, Regions shall deliver to the participants
in each Xxxxxx Stock Plan an appropriate notice setting
forth such participant's rights pursuant thereto and the
grants pursuant to such Xxxxxx Stock Plan shall continue
in effect on the same terms and conditions (subject to
the adjustments required by Section 3.5(a) of this
Agreement after giving effect to the Merger), and
Regions shall comply with the terms of each Xxxxxx
Stock Plan to ensure, to the extent required by, and
subject to the provisions of, such Xxxxxx Stock Plan,
that Xxxxxx Rights which qualified as incentive stock
options prior to the Effective Time continue to qualify
as incentive stock options after the Effective Time.
At or prior to the Effective Time, Regions shall take
all corporate action necessary to reserve for issuance
sufficient shares of Regions Common Stock for delivery
upon exercise of Xxxxxx Rights assumed by it in accordance
with this Section 3.5. As soon as reasonably practicable
(but in no event more than 45 days) after the Effective
Time, Regions shall file a registration statement on Form
S-3 or Form S-8, as the case may be (or any successor or
other appropriate forms), with respect to the shares of
Regions Common Stock subject to such options and shall
use its reasonable efforts to maintain the effectiveness
of such registration statements (and maintain the current
status of the prospectus or prospectuses contained therein)
for so long as such options remain outstanding. With
respect to those individuals who subsequent to the Merger
will be subject to the reporting requirements under
Section 16(a) of the 1934 Act, where applicable, Regions
shall administer the Xxxxxx Stock Plan assumed pursuant
to this Section 3.5 in a manner that complies with Rule
16b-3 promulgated under the 1934 Act.
(c) All restrictions or limitations on transfer
with respect to Xxxxxx Common Stock awarded under
the Xxxxxx Stock Plans or any other plan, program,
or arrangement of any Xxxxxx Company, to the extent
that such restrictions or limitations shall not have
already lapsed, and except as otherwise expressly
provided in such plan, program, or arrangement, shall
remain in full force and effect with respect to shares
of Regions Common Stock into which such restricted
stock is converted pursuant to Section 3.1 of this Agreement.
(d) At the Effective Time, each holder of a Xxxxxx
Right granted by Xxxxxx under the 2000 Director Stock
Option Plan which is outstanding at the Effective Time,
whether or not exerciseable, shall be entitled to receive
upon surrender of such Xxxxxx Right a check in the amount
equal to the difference (if positive) between (i) the
"Change of Control Price" as defined in Section 6 of the
2000 Director Stock Option Plan, and (ii) the exercise
price of such Xxxxxx Right. The Parties agree that the
"Change of Control Price" shall equal the Per Share
Cash Consideration.
ARTICLE 4
Exchange of Shares
4.1 Exchange Procedures. (a) At or prior to
the Effective Time, Regions shall deposit, or shall cause
to be deposited, with the Exchange Agent, for the benefit
of the holders of Old Certificates, for exchange in
accordance with Article 3 of this Agreement and this
Article 4, certificates representing the Merger Shares
("New Certificates") and an estimated amount of cash
(such cash and New Certificates, together with any
dividends or distributions with respect thereto (without
any interest thereon), being hereinafter
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referred to as
the "Exchange Fund") to be paid pursuant to Article 3 of
this Agreement and this Article 4 in exchange for
outstanding shares of Xxxxxx Common Stock.
(b) As promptly as practicable after the
Effective Time, Regions shall send or cause to be sent
to each former holder of record of shares (other than
Cash Election Shares or Treasury Shares) of Xxxxxx
Common Stock immediately prior to the Effective Time,
transmittal materials for use in exchanging such
stockholder's Old Certificates for the consideration
set forth in Article 3 of this Agreement (which shall
specify that delivery shall be effected, and risk of
loss and title to the certificates theretofore
representing shares of Xxxxxx Common Stock shall pass,
only upon proper delivery of such certificates to the
Exchange Agent). Regions shall cause the New Certificates
or check in respect of the Per Share Cash Consideration
into which shares of a stockholder's Xxxxxx Common Stock
are converted at the Effective Time and any fractional
share interests or dividends or distributions which
such person shall be entitled to receive to be delivered
to such stockholder upon delivery to the Exchange Agent
of Old Certificates representing such shares of Xxxxxx
Common Stock. No interest will be paid on any such cash
to be paid pursuant to Article 3 and this Article 4
upon such delivery.
(c) Notwithstanding the foregoing, neither the
Exchange Agent nor any Party hereto shall be liable to
any former holder of Xxxxxx Common Stock for any amount
properly delivered to a public official pursuant to
applicable abandoned property, escheat or similar laws.
(d) Any portion of the Exchange Fund that remains
unclaimed by the stockholders of Xxxxxx for 12 months
after the Effective Time shall be paid to Regions. Any
stockholders of Xxxxxx who have not theretofore complied
with this Article 4 shall thereafter look only to Regions
for payment of the consideration deliverable in respect of
each share of Xxxxxx Common Stock such stockholder holds as
determined pursuant to this Agreement, in each case, without
any interest thereon.
4.2 Rights of Former Xxxxxx Stockholders. At the
Effective Time, the stock transfer books of Xxxxxx shall be
closed as to holders of Xxxxxx Common Stock immediately prior
to the Effective Time and no transfer of Xxxxxx Common Stock
by any such holder shall thereafter be made or recognized.
Until surrendered for exchange in accordance with the
provisions of Section 4.1 of this Agreement, each certificate
theretofore representing shares of Xxxxxx Common Stock (other
than shares to be canceled pursuant to Section 3.3 of this
Agreement) shall from and after the Effective Time represent
for all purposes only the right to receive the consideration
provided in Sections 3.1 and 3.4 of this Agreement in exchange
therefor, subject, however, to the Surviving Corporation's
obligation to pay any dividends or make any other distributions
with a record date prior to the Effective Time which have been
declared or made by Xxxxxx in respect of such shares of Xxxxxx
Common Stock in accordance with the terms of this Agreement
and which remain unpaid at the Effective Time. To the extent
permitted by Law, former stockholders of record of Xxxxxx shall
be entitled to vote after the Effective Time at any meeting
of Regions stockholders the number of whole shares of Regions
Common Stock into which their respective shares of Xxxxxx
Common Stock are converted, regardless of whether such holders
have exchanged their certificates representing Xxxxxx Common
Stock for New Certificates representing Regions Common Stock
in accordance with the provisions of this Agreement. Whenever
a dividend or other distribution is declared by Regions on
the Regions Common Stock, the record date for which is at or
after the Effective Time, the declaration shall include
dividends or other
distributions on all shares of Regions Common Stock issuable
pursuant to this Agreement,
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but beginning 30 days after the Effective Time no dividend
or other distribution payable to the holders of record of
Regions Common Stock as of any time subsequent to the Effective
Time shall be delivered to the holder of any certificate
representing shares of Xxxxxx Common Stock issued and
outstanding at the Effective Time until such holder surrenders
such certificate for exchange as provided in Section 4.1 of
this Agreement. However, upon surrender of the Old Certificate,
both the New Certificate (together with all such undelivered
dividends or other distributions without interest) and any
undelivered
dividends and cash payments to be paid for fractional share
interests (without interest) shall be delivered and paid with
respect to each share represented by such certificate. In
the event any Xxxxxx Common Stock certificate shall have
been lost, stolen, or destroyed, upon the making of an
affidavit of that fact by the person claiming such certificate
to be lost, stolen, or destroyed and, if required by Regions,
the posting by such person of a bond in such amount as
Regions may reasonably direct as indemnity against any claim
that may be made against it with respect to such certificate,
the Exchange Agent shall issue in
exchange for such lost, stolen, or destroyed certificate,
the consideration deliverable in respect thereof pursuant
to this Agreement.
ARTICLE 5
Representations and Warranties of Xxxxxx
Xxxxxx hereby represents and warrants, except as specifically
disclosed in a section of the Xxxxxx Disclosure Memorandum
corresponding to the relevant section of this Article 5, to
Regions as follows:
5.1 Organization, Standing, and Power. Xxxxxx is a
corporation duly organized, validly existing, and in good standing
under the Laws of the State of Tennessee, and has the corporate
power and authority to carry on its business as now conducted and
to own, lease, and operate its material assets. Xxxxxx is duly
qualified or licensed to transact business as a foreign corporation
in good standing in the States of the United States and foreign
jurisdictions where the character of its assets or the nature or
conduct of its business requires it to be so qualified or
licensed, except for such jurisdictions in which the
failure to be so qualified or licensed is not reasonably
likely to have, individually or in the aggregate, a Material
Adverse Effect on Xxxxxx.
5.2 Authority; No Breach of Agreement. (a) Xxxxxx
has the corporate power and authority necessary to execute,
deliver, and perform its obligations under this Agreement and
to consummate the transactions contemplated hereby. The execution,
delivery, and performance of this Agreement, and the consummation
of the transactions contemplated herein, including the Merger,
have been duly and validly authorized by all necessary corporate
action (including valid authorization and adoption of this
Agreement by Xxxxxx'x duly constituted Board of Directors) in
respect thereof on the part of Xxxxxx, subject to the approval
of this Agreement by the holders of a majority of the shares of
Xxxxxx Common Stock entitled to vote thereon, which is the only
stockholder vote required for approval of this Agreement and
consummation of the Merger by Xxxxxx.
Subject to such requisite stockholder approval and assuming
due authorization, execution, and delivery of this Agreement
by Regions, this Agreement represents a legal, valid, and
binding obligation of Xxxxxx, enforceable against Xxxxxx in
accordance with its terms (except in all cases as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, receivership, conservatorship,
moratorium, or similar Laws affecting the enforcement of
creditors' rights generally and except that the availability of
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the equitable remedy of specific performance or injunctive
relief is subject to the discretion
of the court before which any proceeding may be brought).
(b) Neither the execution and delivery of this Agreement
by Xxxxxx, nor the consummation by Xxxxxx of the transactions
contemplated hereby, nor compliance by Xxxxxx with any of the
provisions hereof, will (i) conflict with or result in a breach
of any provision of Xxxxxx'x Restated Charter or Bylaws, or (ii)
constitute or result in a Default under, or require any Consent
pursuant to, or result in the creation of any Lien on any asset
of any Xxxxxx Company under, any Contract or Permit of any Xxxxxx
Company, where such Default or Lien, or any failure to obtain
such Consent, is reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Xxxxxx, or (iii)
subject to receipt of the requisite Consents referred to in
Section 9.1(b) of this Agreement, violate any Law or Order
applicable to any Xxxxxx Company or any of their respective
material assets, which violation is reasonably likely to
have, individually or in the aggregate, a Material Adverse
Effect on Xxxxxx.
(c) Other than in connection or compliance with the
provisions of the Securities Laws, applicable state corporate
and securities Laws, and other than Consents required from
Regulatory Authorities, and other than notices to or filings
with the Internal Revenue Service or the Pension Benefit
Guaranty Corporation or both with respect to any employee
benefit plans, or under the HSR Act, and other than Consents,
filings, or notifications which, if not obtained or made, are
not reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on Xxxxxx, no notice to, filing with,
or Consent of, any public body or authority is necessary for
the consummation by Xxxxxx of the Merger and the other
transactions contemplated in this Agreement.
5.3 Capital Stock. (a) The authorized capital
stock of Xxxxxx consists, as of the date of this Agreement,
of 100,000,000 shares of Xxxxxx Common Stock, of which, as
of the date of this Agreement, (i) 28,562,566 shares were
issued and outstanding, including 2,009,935 shares of
restricted Xxxxxx Common Stock, and (ii) 666,625 shares of
Xxxxxx Common Stock were issuable pursuant to outstanding
awards under Xxxxxx'x Stock Plans, and not more than
29,229,191 shares of Xxxxxx Common Stock (excluding shares
issued pursuant to Permitted Issuances) will be issued and
outstanding at the Effective Time. All
of the issued and outstanding shares of Xxxxxx Common Stock
are duly and validly issued and outstanding and are fully
paid and, except as expressly provided otherwise under
applicable Law, nonassessable under the TBCA. None of the
outstanding shares of Xxxxxx Common Stock has been issued
in violation of any preemptive rights of the current or
past stockholders of Xxxxxx.
(b) Except as set forth in Section 5.3(a) of this
Agreement or Section 5.3(b) of the Xxxxxx Disclosure Memorandum,
there are no shares of capital stock or other equity
securities of Xxxxxx outstanding and no outstanding Rights
relating to the capital stock of Xxxxxx.
5.4 Xxxxxx Subsidiaries. Xxxxxx has disclosed
in Section 5.4 of the Xxxxxx Disclosure Memorandum all of
the Xxxxxx Subsidiaries as of the date of this Agreement.
Except as set forth in Section 5.4 of the Xxxxxx Disclosure
Memorandum, Xxxxxx or one of its Subsidiaries owns all of
the issued and outstanding shares of capital stock of each
Xxxxxx Subsidiary. No equity securities of any Xxxxxx Subsidiary
are or may become required to be issued (other than to another
Xxxxxx Company) by reason of any Rights, and there are no
Contracts by which any Xxxxxx Subsidiary is bound to issue
(other than to another Xxxxxx Company) additional shares of
its capital stock or Rights or by which
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any Xxxxxx Company
is or may be bound to transfer any shares of the
capital stock of any Xxxxxx Subsidiary (other than
to another Xxxxxx Company). There are no Contracts relating
to the rights of any Xxxxxx Company to vote or to dispose
of any shares of the capital stock of any Xxxxxx Subsidiary.
All of the shares of capital stock of each Xxxxxx
Subsidiary held by a Xxxxxx Company are fully paid and,
except as expressly provided otherwise under applicable
Law, nonassessable under the applicable corporate or
banking Law of the jurisdiction in which such Subsidiary
is incorporated or organized and are owned by the Xxxxxx
Company free and clear of any Lien. Each Xxxxxx Subsidiary
is either a savings and loan association or a corporation,
and is duly organized, validly
existing, and (as to corporations) in good standing under
the Laws of the jurisdiction in which it is incorporated
or organized, and has the corporate power and authority
necessary for it to own, lease, and operate its assets and
to carry on its business as now conducted. Each Xxxxxx
Subsidiary is duly qualified or licensed to transact business
as a foreign corporation in good standing in the States of
the United States and foreign jurisdictions where the
character of its assets or the nature or conduct of its
business requires it to be so qualified or licensed, except
for such jurisdictions in which the failure to be so qualified
or licensed is not reasonably likely to have, individually
or in the aggregate, a Material Adverse Effect on Xxxxxx.
Each Xxxxxx Subsidiary that is a depository institution is
an "insured depository institution" as defined in the Federal
Deposit Insurance Act and applicable regulations thereunder,
and the deposits in which are insured by the Bank Insurance
Fund or Savings Association Insurance Fund to the fullest
extent permitted by Law. The minute book and other
organizational documents (and all amendments thereto) for
Xxxxxx and each Xxxxxx Subsidiary that is a "Significant
Subsidiary" (as such term is defined in Regulation S-X
promulgated under the 0000 Xxx) have been or will be made
available to Regions for its review, and are true and complete
as in effect as of November 30, 2000. No material actions
have been taken by Xxxxxx'x Board of Directors since such
date, other than such actions taken in contemplation of
the execution of this Agreement and the consummation of
the transactions contemplated herein, and actions related
to matters described in the Xxxxxx Disclosure Memorandum.
Except for (i) interests in the Xxxxxx Subsidiaries, (ii)
trading account securities, securities held available for
sale, client margin agreements, securities acquired
pursuant to underwriting
agreements in which Xxxxxx participated as an underwriter
or dealer and securities acquired as a result of debts
owing to Xxxxxx or the Xxxxxx Subsidiaries by their
customers, securities acquired in arbitrage, hedging,
options or forward or futures contracts, or transactions
or arrangements or securities clearance and settlement
activities, or (iii) as set forth in Section 5.4 of the
Xxxxxx Disclosure Memorandum, Xxxxxx does not own,
directly or indirectly (through any Xxxxxx Subsidiary or
otherwise), any capital stock,
membership interest, partnership interest, joint venture
interest or other equity interest in any Person.
5.5 SEC Filings; Financial Statements. (a) Xxxxxx
and each Xxxxxx Subsidiary has filed and made available to
Regions all forms, reports, and documents required to be
filed by Xxxxxx or such Xxxxxx Subsidiary with the SEC since
December 31, 1995 (collectively, the "Xxxxxx SEC Reports").
The Xxxxxx SEC Reports (i) at the time filed, complied in all
material respects with the applicable requirements of the
Securities Laws, and (ii) did not at the time they were filed
(or if amended or superseded by a filing prior to the date of
this Agreement, then on the date of such filing) contain any
untrue statement of a material fact or omit to state a material
fact required to be stated in such
Xxxxxx SEC Reports or necessary in order to make the statements
in such Xxxxxx SEC Reports, in light of the circumstances under
which they were made, not misleading.
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(b) Each of the Xxxxxx Financial Statements (including,
in each case, any related notes) contained in the Xxxxxx SEC
Reports, including any Xxxxxx SEC Reports filed after the
date of this Agreement until the Effective Time, complied or
will comply as to form in all material respects with the
applicable requirements of the Securities Laws with respect
thereto, was prepared or will be prepared in accordance with
GAAP throughout the periods involved (except as may be
indicated in the notes to such financial statements, or,
in the case of unaudited statements, as permitted by Form
10-Q of the SEC), and fairly presented or will fairly
present the consolidated financial position of Xxxxxx
and its Subsidiaries as at the respective dates and the
consolidated results of its operations and cash flows for
the periods indicated, except that the unaudited interim
financial statements were or are subject to normal and
recurring year-end adjustments which were not or are not
expected to be material in amount or effect.
5.6 Absence of Undisclosed Liabilities. No
Xxxxxx Company has any Liabilities that are reasonably
likely to have, individually or in the aggregate, a
Material Adverse Effect on Xxxxxx, except Liabilities
which are accrued or reserved against in the consolidated
balance sheets of Xxxxxx as of October 31, 2000,
included in the Xxxxxx Financial Statements or reflected
in the notes thereto, Liabilities incurred in the
ordinary course of business subsequent to October 31, 2000,
and Liabilities to be incurred in connection with the
transactions contemplated by this Agreement. No Xxxxxx
Company has incurred or paid any Liability since October
31, 2000, except for such Liabilities incurred or paid
in the ordinary course of business consistent with past
business practices and which are not reasonably likely
to have, individually or in the aggregate, a Material
Adverse Effect on Xxxxxx.
5.7 Absence of Certain Changes or Events. Since
October 31, 2000, except as disclosed in the Xxxxxx
Financial Statements delivered prior to the date of
this Agreement or as otherwise disclosed in the Xxxxxx
Disclosure Memorandum, there have been no events,
changes, or occurrences which have had, or are reasonably
likely to have, individually or in the aggregate, a
Material Adverse Effect on Xxxxxx.
5.8 Tax Matters. Except as set forth in Section
5.8 of the Xxxxxx Disclosure Memorandum:
(a) Since December 31, 1994, all material Tax Returns
required to be filed by or on behalf of any of the Xxxxxx
Companies have been timely filed, or requests for extensions
have been timely filed, granted, and have not expired for
periods ended on or before December 31, 1999, and all Tax
Returns filed are complete and accurate in all material
respects. All Tax Returns for periods ending on or before
the date of the most recent fiscal year end immediately
preceding the Effective Time will be timely filed or requests
for extensions will be timely filed. All Taxes shown on
filed Tax Returns have been paid. There is no audit
examination, deficiency, or refund Litigation with respect
to any Taxes, that is reasonably likely to result in a
determination that would have, individually or in the aggregate,
a Material Adverse Effect on Xxxxxx, except to the extent
reserved against in the Xxxxxx Financial Statements dated
prior to the date of this Agreement. All material Taxes due
with respect to completed and settled examinations or
concluded Litigation with respect to Taxes have been paid.
(b) None of the Xxxxxx Companies has executed an
extension or waiver of any statute of limitations on the
assessment or collection of any Tax due (excluding such
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statutes that relate to years currently under examination
by the Internal Revenue Service or other applicable taxing
authorities) that is currently in effect.
(c) Adequate provision for any material Taxes due for
any of the Xxxxxx
Companies for the period or periods through and including
the date of the respective Xxxxxx Financial Statements
has been made in accordance with GAAP and is reflected
on such Xxxxxx Financial Statements.
(d) Each of the Xxxxxx Companies is in material compliance
with, and its
records contain the information and documents (including properly
completed IRS
Forms W-9) necessary to comply with, in all material respects,
applicable information reporting and Tax withholding requirements
under federal, state, and local Tax Laws, and such records
identify with specificity all accounts subject to backup
withholding under Section 3406 of the Internal Revenue Code.
(e) None of the Xxxxxx Companies has made any payments,
is obligated to
make any payments, or is a party to any contract, agreement,
or other arrangement that could obligate it to make any payments
that would be disallowed as a deduction under Section 280G of
the Internal Revenue Code.
(f) There are no Material Liens with respect to Taxes
upon any of the assets of the Xxxxxx Companies.
(g) No Xxxxxx Company has filed any consent under
Section 341(f) of the
Internal Revenue Code concerning collapsible corporations.
5.9 Assets. The Xxxxxx Companies have good and
marketable title, free and clear of all Liens, to all of their
respective assets other than such defects and liens which are
not reasonably likely to have a Material Adverse Effect on
Xxxxxx. All tangible properties used in the businesses of the
Xxxxxx Companies are in good condition, reasonable wear and
tear excepted, and are usable in the ordinary course of business
consistent with Xxxxxx'x past practices, except as would not be
reasonably likely to have a Material
Adverse Effect on Xxxxxx. All assets which are material to
Xxxxxx'x business on a consolidated basis, held under leases
or subleases by any of the Xxxxxx Companies, are held under
valid Contracts enforceable in accordance with their respective
terms (except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or other
Laws affecting the enforcement of creditors' rights generally
and except that the availability of the equitable remedy of
specific performance or injunctive relief is subject to the
discretion of the court before which any proceedings may be brought),
and each such Contract is in full force and effect. The
Xxxxxx Companies currently maintain insurance in amounts,
scope and coverage reasonably necessary for their
operations. Except as set forth in Section 5.9 of the Xxxxxx
Disclosure Memorandum, none of the Xxxxxx Companies has received
notice from any insurance carrier that (i) such insurance
will be canceled or that coverage thereunder will be
materially reduced or eliminated, or (ii) premium costs
with respect to such policies of insurance will be
substantially
increased. The assets of the Xxxxxx Companies include
all material
assets required to operate the business of the Xxxxxx
Companies as presently conducted.
5.10 Environmental Matters. (a) Each Xxxxxx
Company is and has been, in compliance with all Environmental
Laws, except those instances of non-compliance which are not
reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on Xxxxxx.
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(b) There is no Litigation pending or, to the
Knowledge of Xxxxxx, threatened before any court, governmental
agency, or authority, or other forum in which any Xxxxxx Company
or site owned, leased, or operated by any Xxxxxx Company (the
"Xxxxxx Properties") has been or, with respect to threatened
Litigation, may reasonably be expected to be named as a
defendant (i) for alleged noncompliance (including by any
predecessor) with any Environmental Law, or (ii) relating
to the release into the environment of any Hazardous Material,
whether or not occurring at, on, under, or involving a Xxxxxx
Property, except for such Litigation pending or threatened
that is not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on
Xxxxxx.
(c) There is no Litigation pending, or to the Knowledge
of Xxxxxx, threatened before any court, governmental agency, or
board, or other forum in which any of the Xxxxxx Properties
has been or, with respect to threatened Litigation, may reasonably
be expected to be named as a defendant or potentially responsible
party (i) for alleged noncompliance (including by any predecessor)
with any Environmental Law, or (ii) relating to the release into
the environment of any Hazardous Material, whether or not occurring
at, on, under, or involving a Xxxxxx Property, except for such
Litigation pending or threatened that is not reasonably likely
to have, individually or in the aggregate, a Material Adverse
Effect on Xxxxxx.
(c) To the Knowledge of Xxxxxx, there is no reasonable
basis
for any Litigation of a type described in subsections (b)
or (c), except such as is not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Xxxxxx.
(d) To the Knowledge of Xxxxxx, during the period of
any Xxxxxx Company's
ownership or operation of any of the Xxxxxx Properties,
there have been no releases of Hazardous Material in, on,
under, or affecting (or potentially affecting) such properties,
except such as are not reasonably likely to have, individually
or in the aggregate, a Material Adverse Effect on Xxxxxx.
Prior to the period of any Xxxxxx Company's ownership or
operation of any of the Xxxxxx Properties, to the Knowledge
of Xxxxxx, there were no releases of Hazardous Material in,
on, under, or affecting any such property, except such as
are not reasonably likely to have, individually or in the
aggregate, a
Material Adverse Effect on Xxxxxx.
5.11 Permits. (a) Each Xxxxxx Company has
in effect all Permits necessary for it to own, lease,
or operate its material assets and to carry on its
business as now conducted, except for those Permits the
absence of which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse
Effect on Xxxxxx, and there has occurred no Default under
any such Permit, other than Defaults which are not reasonably
likely to have, individually or in the aggregate, a Material
Adverse Effect on Xxxxxx.
(b) All officers, directors, and employees of Xxxxxx
and the Xxxxxx Subsidiaries that are required, as a result
of their positions with Xxxxxx and/or the Xxxxxx Subsidiaries,
to be registered or licensed with the SEC, the NASD, or the
NYSE are currently registered or licensed in the appropriate
capacity with the SEC, the NASD, or the NYSE and all such
registrations and licenses are in full force and effect and
no suspension or cancellation of any of them is pending or,
to the Knowledge of Xxxxxx, threatened. Xxxxxx has delivered
or made available to Regions a true and complete copy of each
Form ADV or BD of Xxxxxx and each Xxxxxx Subsidiary as most
recently filed or amended prior to the date of this Agreement
(the "Current Forms") with the SEC, all
other state and federal registration forms filed with the SEC,
the NASD, or the NYSE, all
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reports and all material correspondence
filed by Xxxxxx or any Xxxxxx Subsidiary with the SEC, the NASD,
or the NYSE under the Investment Company Act or the Investment
Advisers Act and the rules promulgated thereunder and under
similar state and federal statutes since January 1, 1998, and
Xxxxxx will deliver or make available to Regions such forms
and reports as are filed from and after the date hereof and
prior to the Effective Time. The information contained in
such forms and reports was (or will be, in the case of any
forms and reports filed after the date of this Agreement)
complete and accurate in all material respects as of the
time of filing thereof.
(c) Section 5.11 of the Xxxxxx Disclosure Memorandum sets
forth all Permits held by Xxxxxx or a Xxxxxx Subsidiary that
are issued or granted by (i) the AMEX, the CBOE, the CSE, the
NASD, the NYFE, the NYSE, the PHLX, the SEC, the SIA, or the
SIPC, (ii) any state securities or blue sky authority,
or (iii) any other Regulatory Authority, and which, in any
case, the absence of which is reasonably likely to have a
Material Adverse Effect on Xxxxxx.
(d) Xxxxxx has made available to Regions true and
correct copies of (i) each Form G-37/G-38 filed with the MSRB
since January 1, 1998, and (ii) all records required to be kept
by Xxxxxx and the Xxxxxx Subsidiaries under Rule G-8(a)(xvi) of
the MSRB. Since January 1, 1998, there have been no contributions
or payments, and there is no other information, that would be
required to be disclosed by Xxxxxx or any of the Xxxxxx Subsidiaries
on any such Form G-37/G-38 or recorded by Xxxxxx or any such
Xxxxxx Subsidiary pursuant to such rule.
5.12 Compliance with Laws. (a) None of the Xxxxxx
Companies is in violation of any Laws, Orders, or Permits
applicable to its business or employees conducting its business,
except for violations which are not reasonably likely to have,
individually or in
the aggregate, a Material Adverse Effect on Xxxxxx.
(b) None of the Xxxxxx Companies has received any
notification or communication from any agency or department
of federal, state, or local government or any Regulatory
Authority or the staff thereof (i) asserting that any Xxxxxx
Company is not in compliance with any of the Laws or Orders
which such governmental authority or Regulatory Authority
enforces, where such noncompliance is reasonably likely to
have, individually or in the aggregate, a Material Adverse
Effect on Xxxxxx, (ii) threatening to revoke any Permits,
the revocation of which is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect
on Xxxxxx, or (iii) requiring any Xxxxxx Company (x) to enter
into or consent to the issuance of a cease and desist order,
formal agreement, directive, commitment, or memorandum of
understanding, or (y) to adopt any board resolution or similar
undertaking, which restricts materially the conduct of its
business, or in any material manner relates to its capital
adequacy, its credit or reserve policies, its management, or
the payment of dividends.
(c) Neither Xxxxxx nor any of the Xxxxxx Subsidiaries,
nor, to Xxxxxx'x
Knowledge, any of their respective officers, directors, or
employees, has been the subject of any disciplinary proceeding
or order of any Regulatory Authority which would be required to
be disclosed on SEC Forms ADV or BD except as disclosed therein,
and no such disciplinary proceeding or order is pending or, to
the Knowledge of Xxxxxx, threatened; and, except as disclosed
on the Current
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Forms, neither Xxxxxx nor any of the Xxxxxx Subsidiaries, nor
any of their respective officers, directors or employees, has
been permanently enjoined by any Regulatory Authority from engaging
in or continuing any conduct or practice in connection with any
activity required to be disclosed in the Current Forms or in
connection with the purchase or sale of any security. Except as
disclosed on the Current Forms, neither Xxxxxx nor any of the
Xxxxxx Subsidiaries, nor any of their respective officers, directors
or employees, is or has been ineligible to serve as, or subject to
any disqualification which would result in any denial, suspension
or revocation of the registration of, or any limitation on the
activities of Xxxxxx or any of the Xxxxxx Subsidiaries as, an
investment adviser under the provisions of the Investment Advisers
Act, or as a broker-dealer under the 1934 Act, or ineligible to
serve in, or subject to any disqualification which would be the
basis for any limitation on serving in, any of the capacities
specified in Section 9(a) or 9(b) of the Investment Company Act.
(d) Neither Xxxxxx nor any of the Xxxxxx Subsidiaries,
nor any "associated person" (as defined in the 0000 Xxx) thereof,
is subject to a "statutory disqualification" as defined in
Section 3(a)(39) of the 1934 Act or otherwise ineligible to
serve as a broker-dealer or as an associated person to a
registered broker-dealer.
5.13 Labor Relations. No Xxxxxx Company is the subject
of any Litigation asserting that it or any other Xxxxxx Company
has committed an unfair labor practice (within the meaning of the
National Labor Relations Act or comparable state Law) or seeking
to compel it or any other Xxxxxx Company to bargain with any
labor organization as to wages or conditions of employment, nor
is any Xxxxxx Company a party to or bound by any collective
bargaining agreement, Contract, or other agreement or understanding
with a labor union or labor organization, nor is there any strike
or other labor dispute involving any Xxxxxx Company, pending or,
to the Knowledge of Xxxxxx, threatened, or to the Knowledge of
Xxxxxx, is there any activity involving any Xxxxxx Company's
employees seeking to certify a collective bargaining unit or
engaging in any
other organization activity.
5.14 Employee Benefit Plans. (a) Xxxxxx has
disclosed in Section 5.14 of the Xxxxxx Disclosure Memorandum,
and has delivered or made available to Regions prior to the
execution of this Agreement correct and complete copies in each
case of, all Xxxxxx Benefit Plans. For purposes of this Agreement,
"Xxxxxx Benefit Plans" means all material written pension,
retirement, profit-sharing, deferred compensation, stock option,
employee stock ownership, severance pay, vacation, bonus, or
other incentive plan, all other material written employee
programs or agreements, all medical, vision, dental, or other
written health plans, all life insurance plans, and all other
material written employee benefit plans or fringe benefit plans,
including written "employee benefit plans" as that term is
defined in Section 3(3) of ERISA maintained by, sponsored in
whole or in part by, or contributed to by, any Xxxxxx Company
for the benefit of employees, retirees, dependents, spouses,
directors, independent contractors, or other beneficiaries and
under which employees, retirees, dependents, spouses, directors,
independent contractors, or other beneficiaries are eligible to
participate. Any of the Xxxxxx Benefit Plans which is an
"employee welfare benefit plan," as that term is defined in
Section 3(l) of ERISA, or an "employee pension benefit plan,"
as that term is defined in Section 3(2) of ERISA, is referred
to herein as a "Xxxxxx ERISA Plan." Any Xxxxxx ERISA Plan which
is also subject to Section 412 of the Internal Revenue Code or
Section 302 of ERISA, is referred to herein as a "Xxxxxx Pension
Plan." Neither Xxxxxx nor any Xxxxxx Company has an "obligation
to contribute" (as defined in ERISA Section 4212) to a
"multiemployer plan" (as defined in ERISA Sections 4001(a)(3)
and 3(37)(A)). Each "employee pension benefit plan," as defined
in Section 3(2) of ERISA, ever maintained by any Xxxxxx Company,
that was intended to qualify under Section 401(a) of the Internal
Revenue Code is disclosed as such in Section 5.14 of the Xxxxxx
Disclosure Memorandum.
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(b) Xxxxxx has delivered or made available to Regions
prior to the execution of this Agreement correct and complete
copies of the following documents: (i) all trust agreements or
other funding arrangements for such Xxxxxx Benefit Plans (
including insurance contracts), and all amendments thereto,
(iii) with respect to any such Xxxxxx Benefit Plans or amendments,
the most recent determination letters, and all material rulings,
material opinion letters, material information letters, or material
advisory opinions
issued by the Internal Revenue Service, the United States
Department of Labor, or the Pension Benefit Guaranty Corporation
after December 31, 1994, (iii) annual reports or returns, audited
or unaudited financial statements, actuarial valuations and reports,
and summary annual reports prepared for any Xxxxxx Benefit Plan
with respect to the most recent plan year and (iv) the most recent
summary plan descriptions and any material modifications thereto.
(c) All Xxxxxx Benefit Plans are in compliance with the
applicable terms of ERISA, the Internal Revenue Code, and any
other applicable Laws, other than instances of noncompliance which
are not reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on Xxxxxx. Each Xxxxxx ERISA Plan which
is intended to be qualified under Section 401(a) of the Internal
Revenue Code has received a favorable determination letter from the
Internal Revenue Service, and to the Knowledge of Xxxxxx, there are
no circumstances likely to result in revocation of any such favorable
determination letter. Each trust created under any Xxxxxx ERISA Plan
has been determined to be exempt from Tax under Section 501(a) of the
Internal Revenue Code and Xxxxxx is not aware of any circumstance
which will or could reasonably result in revocation of such exemption.
With respect to each Xxxxxx Benefit Plan to the Knowledge of Xxxxxx,
no event has occurred which will or could reasonably give rise to a
loss of any
intended Tax consequences under the Internal Revenue Code or to any
Tax under
Section 511 of the Internal Revenue Code that is reasonably likely,
individually or in the aggregate, to have a Material Adverse Effect
on Xxxxxx. There is no material pending or, to the Knowledge of Xxxxxx, threatened Litigation relating to any Xxxxxx ERISA Plan.
(d) No Xxxxxx Company has engaged in a transaction with
respect to any Xxxxxx Benefit Plan that, assuming the Taxable
Period of such transaction expired as of the date of this Agreement,
would subject any Xxxxxx Company to a material tax or penalty
imposed by either Section 4975 of the Internal Revenue Code or
Section 502(i) of ERISA in amounts which are reasonably likely
to have, individually or in the aggregate, a Material Adverse
Effect on Xxxxxx. Neither Xxxxxx nor, any administrator or fiduciary
of any Xxxxxx Benefit Plan (or any agent of any of the foregoing)
has engaged in any transaction, or acted or failed to act in any
manner with respect to any Xxxxxx Benefit Plan which could subject
Xxxxxx to any direct or indirect Liability (by indemnity or
otherwise) for breach of any fiduciary, co-fiduciary, or other
duty under ERISA, where such Liability, individually or in the
aggregate, is reasonably likely to have a Material Adverse Effect
on Xxxxxx. No oral or written representation or communication
with respect to any aspect of the Xxxxxx Benefit Plans has been
made to employees of any Xxxxxx Company which is not in conformity
with the written or otherwise preexisting terms and provisions of
such plans, where any Liability resulting from such non-conformity
is reasonably likely to have a Material Adverse Effect on Xxxxxx.
(e) No Xxxxxx Pension Plan has any "unfunded current
liability," as that term is defined in Section 302(d)(8)(A) of
ERISA, and the fair market value of the assets of any such plan
is equal to or exceeds the actuarial present value of all accrued
benefits under such plans (whether vested or not), based upon the
actuarial assumptions used to
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prepare the most recent actuarial
reports for such pans and to the Knowledge of Xxxxxx,
since the date of the most recent actuarial valuation,
no event has occurred which would be reasonably expected
to change any such funded status in a way that is
reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on Xxxxxx. Neither any Xxxxxx
Pension Plan nor any "single-employer plan," within the
meaning of Section 4001(a)(15) of ERISA, currently
maintained by any Xxxxxx Company, or the single-employer
plan of any entity which is considered one employer with
Xxxxxx under
Section 4001 of ERISA or Section 414 of the Internal Revenue
Code or Section 302 of ERISA (whether or not waived)
(a "Xxxxxx ERISA Affiliate") has an "accumulated funding
deficiency" within the meaning of Section 412 of the Internal
Revenue Code or Section 302 of ERISA. All required contributions
with respect to an Xxxxxx Pension Plan or any single-employer
plan of an Xxxxxx ERISA Affiliate have been timely made and
there is no lien or expected to be a lien under Internal Revenue
Code Section 412(n) or ERISA Section 302(f) or Tax under Internal
Revenue Code Section 4971. No Xxxxxx Company has provided, or
is required to provide, security to an Xxxxxx Pension Plan or
to any single-employer plan of an Xxxxxx ERISA Affiliate pursuant
to Section 401(a)(29)
of the Internal Revenue Code. All premiums required to be paid
under ERISA
Section 4006 have been timely paid by Xxxxxx, except to the
extent any failure to timely pay would not have a Material
Adverse Effect on Xxxxxx.
(f) No Liability under Title IV of ERISA has been or
is expected to be incurred by any Xxxxxx Company with respect
to any defined benefit plan currently or formerly maintained
by any of them or by any Xxxxxx ERISA Affiliate that has not
been satisfied in full (other than Liability for Pension
Benefit Guaranty Corporation premiums, which have been paid
when due, except for Liabilities that, individually or in
the aggregate, would not have a Material Adverse Effect on Xxxxxx).
(g) No Xxxxxx Company has any obligations for retiree
health and retiree life benefits under any of the Xxxxxx
Benefit Plans other than with respect to benefit coverage
mandated by applicable Law.
(h) Except as set forth in Section 5.14 of the Xxxxxx
Disclosure Memorandum, neither the execution and delivery of
this Agreement nor the consummation of the transactions
contemplated hereby will, by themselves, (i) result in any
payment (including, without limitation, severance, golden
parachute, or otherwise) becoming due to any director or any
employee of any Xxxxxx Company from any Xxxxxx Company under
any Xxxxxx Benefit Plan or otherwise, other than by operation
of Law, (ii) increase any benefits otherwise payable under any
Xxxxxx Benefit Plan, or (iii) result in any acceleration of the
time of payment or vesting of any such benefit.
5.15 Material Contracts. (a) Except as set forth in
the Xxxxxx Disclosure Memorandum and except for Contracts filed
as exhibits to Xxxxxx'x Form 10-K for the fiscal year ended July
31, 2000, as of the date of this Agreement, none of the Xxxxxx
Companies, nor any of their respective assets, businesses, or
operations, is a party to, or is bound or affected by, or receives
benefits under, (i) any employment, severance, termination,
consulting, or retirement Contract providing for aggregate
payments to any
Person in any calendar year in excess of $150,000, (ii) any
Contract relating to the borrowing of money by any Xxxxxx Company
or the guarantee by any Xxxxxx Company of any such obligation
(other than Contracts pertaining to fully-secured repurchase
agreements, and trade payables, and Contracts relating to
borrowings or guarantees made in the ordinary course of business),
and (iii) any other Contract or amendment thereto that would
be required to be filed as an exhibit to a Form 10-K filed by
Xxxxxx with the
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SEC that has not been filed as an exhibit to Xxxxxx'x Form
10-K filed for the fiscal year ended July 31, 2000 or on another
SEC Document and identified to Regions (together with all
Contracts referred to in Sections 5.9 and 5.14 (a) of this
Agreement, the "Xxxxxx Contracts"). With respect to each Xxxxxx
Contract: (i) the Contract is in full force and effect; (ii) no
Xxxxxx Company is in Default thereunder, other than Defaults
which are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Xxxxxx; (iii) no Xxxxxx
Company has repudiated or waived any material provision of any
such Contract; and (iv) no other party to any such Contract is,
to the Knowledge of Xxxxxx, in Default in any material respect,
other than Defaults which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Xxxxxx.
Except as set forth in Section 5.15 of the Xxxxxx Disclosure
Memorandum, all of the indebtedness of any Xxxxxx Company for
money borrowed is prepayable at any time by such Xxxxxx Company
without penalty or premium.
5.16 Legal Proceedings. (a) There is no Litigation
instituted or pending, or, to the Knowledge of Xxxxxx, threatened
against any Xxxxxx Company, or against any asset, interest, or
right of any of them, that is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect
on Xxxxxx, nor are there any Orders of any Regulatory Authorities,
other governmental authorities, or arbitrators outstanding
against any Xxxxxx Company, that are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Xxxxxx.
(b) Section 5.16(b) of the Xxxxxx Disclosure Memorandum
includes a summary
report of all Litigation as of the date of this Agreement
to which any Xxxxxx Company is a party and which names a
Xxxxxx Company as a defendant or cross-defendant.
5.17 Reports. Since December 31, 1995, or the date
of organization if later, each Xxxxxx Company has timely filed
all reports and statements, together with any amendments
required to be made with respect thereto, that it was required
to file with any Regulatory Authorities, except failures to
file which are not reasonably likely to have, individually
or in the aggregate,
a Material Adverse Effect on Xxxxxx.
5.18 Statements True and Correct. None of the
information supplied or to be supplied by any Xxxxxx Company
or any Affiliate thereof regarding Xxxxxx or such Affiliate
for inclusion in the Registration Statement to be filed by
Regions with the SEC will, when the Registration Statement
becomes effective, contain any untrue statement of a material
fact, or omit to state any material fact required to be stated
thereunder or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading. None of the information supplied or to be supplied
by any Xxxxxx Company or any Affiliate thereof for inclusion in
the Proxy Statement to be
mailed to Xxxxxx'x stockholders in connection with the
Stockholders' Meeting will, when first mailed to the
stockholders of Xxxxxx, contain any misstatement of
material fact, or omit to state any material fact required
to be stated thereunder or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading, or, in the case of the Proxy Statement
or any amendment thereof or supplement thereto, at the time
of the Stockholders' Meeting, omit to state any material fact
required to be stated thereunder or necessary to correct any
material statement in any earlier communication with respect
to the solicitation of any proxy for the Stockholders'
Meeting. All documents that any Xxxxxx Company or any
Affiliate thereof is responsible for filing with any Regulatory
Authority in connection with the transactions contemplated
hereby will comply as to form in all material respects with
the provisions of applicable Law.
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5.19 Tax and Regulatory Matters. No Xxxxxx Company
or any Affiliate thereof has taken or agreed to take any
action, and Xxxxxx has no Knowledge of any fact or circumstance
that is reasonably likely to (i) prevent the Merger from
qualifying as a reorganization within the meaning of Section
368(a) of the Internal Revenue Code, or (ii) materially impede
or delay receipt of any Consents of Regulatory Authorities
referred to in Section 9.1(b) of this Agreement. To the
Knowledge of Xxxxxx there exists no fact, circumstance, or
reason why the requisite Consents referred to in
Section 9.1(b) of this
Agreement cannot be received in a timely manner.
5.20 Intellectual Property. All of the Intellectual
Property rights of Xxxxxx and the Xxxxxx Subsidiaries are in
full force and effect and, if applicable, constitute legal,
valid, and binding obligations of the respective parties
thereto, and there have not been, and, to the Knowledge
of Xxxxxx, there currently are not, any Defaults thereunder
by Xxxxxx or a Xxxxxx Subsidiary. Xxxxxx or a Xxxxxx
Subsidiary owns or is the valid licensee of all such
Intellectual Property rights free and clear of all Liens
or claims of infringement, except for such Liens or claims
of infringement which would not reasonably be expected to
have a Material Adverse Effect on Xxxxxx. Neither Xxxxxx
nor any of the Xxxxxx Subsidiaries nor, to the Knowledge
of Xxxxxx, their respective predecessors has infringed the
Intellectual Property rights of others and, to the Knowledge
of Xxxxxx, none of the Intellectual Property rights as used
in the business conducted by Xxxxxx or the Xxxxxx
Subsidiaries infringes upon or otherwise violates the
rights of any Person, nor has any Person asserted a
claim of such infringement, in each case, except as
would not reasonably
be expected to have a Material Adverse Effect on Xxxxxx.
Except as disclosed in
Section 5.20 of the Xxxxxx Disclosure Memorandum, neither
Xxxxxx nor any of the
Xxxxxx Subsidiaries is obligated to pay any royalties to
any Person with respect to any such Intellectual Property
other than in the ordinary course of business. Xxxxxx or
a Xxxxxx Subsidiary owns or has the valid right to use all
of the Intellectual Property rights which it is presently
using, or in connection with performance of any material
Contract to which it is a party. No officer, director, or
employee of Xxxxxx or the Xxxxxx Subsidiaries is party to
any Contract which requires such officer, director, or
employee to assign any
interest in any Intellectual Property or keep confidential
any trade secrets, proprietary data, customer information,
or other business information or, except as disclosed in
Section 5.20 of the Xxxxxx Disclosure Memorandum, which
restricts or prohibits such officer, director, or employee
from engaging in activities competitive with any Person,
in each case, other than with Xxxxxx or any of the Xxxxxx
Subsidiaries.
5.21 State Takeover Laws. Subject to Xxxxxx'x
right to alter its recommendation in accordance with the
proviso set forth in the fourth sentence of Section 8.1 of
this Agreement, each Xxxxxx Company has taken all necessary
action to exempt the transactions contemplated by this
Agreement from any applicable "moratorium," "control share,"
"fair price," "business combination," or other anti-takeover
laws and regulations of the State of Tennessee (collectively,
"Takeover Laws") including the relevant provisions of
Chapter 48 of the TBCA.
5.22 Charter Provisions. Each Xxxxxx Company has
taken all action so that the entering into of this Agreement
and the consummation of the Merger and the other transactions
contemplated by this Agreement do not and will not result in the
grant of any rights to any Person under the Articles of
Incorporation or Bylaws or, subject to Xxxxxx'x right to
alter its recommendation in accordance with the proviso
set forth in the fourth sentence of Section 8.1 of this
Agreement, restrict or impair the ability of Regions to vote,
A-25
or otherwise to exercise the rights of a stockholder with
respect to, shares of any Xxxxxx
Company that may be directly or indirectly acquired or
controlled by it.
5.23 Derivatives. All interest rate swaps,
caps, floors, option agreements, futures and forward
contracts, and other similar risk management arrangements,
whether entered into for Xxxxxx'x own account, or for the
account of one or more the Xxxxxx Subsidiaries or their
customers, were entered into (i) in accordance with prudent
business practices and all applicable Laws, and (ii) with
counterparties believed to be financially responsible; and
each of them is enforceable in accordance with its terms
(except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and similar laws of general
applicability relating to or affecting creditors' rights or
by general equity principles), and are in full force and
effect. Neither Xxxxxx nor a Xxxxxx Subsidiary, nor to
Xxxxxx'x Knowledge, any other party thereto, is in breach
of any of its obligations under any such agreement or
arrangement. The Xxxxxx Financial Statements disclose
the value of such agreements and arrangements on a
xxxx-to-market basis in accordance with GAAP and, since
October 31, 2000, there has not been a change
in such value that, individually or in the aggregate, has
resulted in a Material Adverse Effect on Xxxxxx.
5.24 Fairness Opinion. Xxxxxx has received an
opinion of Lazard Frires & Co. LLC to the effect that, in
the opinion of such firm, the Exchange Ratio is fair, from
a financial point of view, to the stockholders of Xxxxxx.
5.25 Contracts with Clients. (a) Each of Xxxxxx
and the Xxxxxx Subsidiaries is in compliance with the terms
of each Contract with any customer to whom Xxxxxx or any
Xxxxxx Subsidiary provides services under any Contract
(a "Client"), and each such Contract is in full force and
effect with respect to the applicable Client.
(b) Each extension of credit by Xxxxxx or any of the
Xxxxxx Subsidiaries to any Client (i) is in full compliance
with Regulation T of the Federal Reserve Board or any
substantially similar regulation of any Regulatory Authority,
(ii) is fully secured, and (iii) Xxxxxx or a Xxxxxx Subsidiary,
as the case may be, has a first priority perfected security
interest in the collateral securing such extension.
5.26 Investment Advisory Activities. (a) Xxxxxx
or certain of the Xxxxxx Subsidiaries have sponsored or
organized or provide investment management, investment
advisory, sub-advisory, administration, distribution or
certain other services to Investment Companies. All such
Investment Companies are disclosed in Section 5.26 of the
Xxxxxx Disclosure Memorandum (each such Investment Company,
a "Xxxxxx Investment Company"). Each of the Xxxxxx Investment
Companies (or the trust of which it is a series) is duly
organized and existing in good standing under the laws of the
jurisdiction under which it is organized as previously disclosed.
Each of the Xxxxxx Investment
Companies is governed by a Fund Board consisting of at least 40%
of trustees or directors who are not "interested persons" (as
defined in the Investment Company Act) of the Xxxxxx Investment
Companies or Xxxxxx. The Fund Boards operate in all material
respects in conformity with the requirements and restrictions
of Sections 10 and 16 of the Investment Company Act.
(b) Each of the Xxxxxx Investment Companies is in
compliance in all material respects with all applicable
Securities Laws and the Laws of any Regulatory Authorities,
having jurisdiction over such entity and the Laws of any state
in which such Xxxxxx Investment Company is registered,
qualified, or sold. Xxxxxx has provided or made
A-26
available to Regions true and complete copies of all the
constituent documents and related advisory agreements of
all of the Xxxxxx Investment Companies.
(c) Except as disclosed in Section 5.26 of the Xxxxxx
Disclosure Memorandum, neither Xxxxxx nor any Xxxxxx Subsidiary
is or has been during the past five years an "investment adviser"
within the meaning of the Investment Advisers Act, required to be
registered, licensed or qualified as an investment adviser under
the Investment Advisers Act or subject to any material Liability
or disability by reason of any failure to be so registered,
licensed or qualified, except for any such failure to be so
registered, licensed, or
qualified that would not reasonably likely have, individually
or in the aggregate, a Material Adverse Effect on Xxxxxx.
(d) Each Xxxxxx Investment Company has been operated
in compliance with its respective objectives, policies, and
restrictions, including without limitation, those set forth
in the applicable registration statement for that Xxxxxx
Investment Company or governing instruments for a Client,
except where lack of compliance would not reasonably likely
have, individually or in the aggregate, a Material Adverse
Effect on Xxxxxx.
(e) Each Xxxxxx Investment Company has duly adopted
procedures pursuant to
Rules 17a-7, 17e-1, and 10f-3 under the Investment Company
Act, to the extent
applicable.
ARTICLE 6
Representations and Warranties of Regions
Regions hereby represents and warrants to Xxxxxx as follows:
6.1 Organization, Standing, and Power. Regions
is a corporation duly organized, validly existing, and in
good standing under the Laws of the State of Delaware, and
has the corporate power and authority to carry on its business
as now conducted and to own, lease, and operate its material assets.
Regions is duly qualified or licensed to transact business as a
foreign corporation in good standing in the States of the United
States and foreign jurisdictions where the character of its assets
or the nature or conduct of its business requires it to be so
qualified or licensed, except for such jurisdictions in which
the
failure to be so qualified or licensed is not reasonably likely
to have, individually or in the aggregate, a Material Adverse
Effect on Regions.
6.2 Authority; No Breach of Agreement. (a) Regions
has the corporate power and authority necessary to execute,
deliver, and perform its obligations under this Agreement and
to consummate the transactions contemplated hereby. The execution,
delivery, and performance of this Agreement and the consummation
of the transactions contemplated herein, including the Merger, have
been duly and validly authorized by all necessary corporate action
in respect thereof on the part of Regions. This Agreement represents
a legal, valid, and binding obligation of Regions, enforceable against
Regions in accordance with its terms (except in all cases as such
enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, receivership,
conservatorship, moratorium, or similar Laws affecting the
enforcement of creditors' rights generally and except that the
availability of the equitable remedy of specific performance or
injunctive relief is subject to the discretion of the court before
which any proceeding may be brought).
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(b) Neither the execution and delivery of this Agreement by
Regions, nor the consummation by Regions of the transactions
contemplated hereby, nor compliance by Regions with any of the
provisions hereof, will (i) conflict with or result in a breach
of any provision of Regions' Certificate of Incorporation or
Bylaws, (ii) constitute or result in a Default under, or require
any Consent pursuant to, or result in the creation of any Lien on
any asset of any Regions Company under, any Contract or Permit of
any Regions Company, where such Default or Lien, or any failure to
obtain such Consent, is reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on Regions, or
(iii) subject to receipt of the requisite Consents referred to in
Section 9.1(b) of this Agreement, violate any Law or Order
applicable to any Regions Company or any of their respective
material assets.
(c) Other than in connection or compliance with the
provisions of the Securities Laws, applicable state corporate
and securities Laws, and rules of the NASD, and other than
Consents required from Regulatory Authorities, and other than
notices to or filings with the Internal Revenue Service or the
Pension Benefit Guaranty Corporation with respect to any employee
benefit plans, or under the HSR Act, and other than Consents,
filings, or notifications which, if not obtained or made, are not
reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Regions, no notice to, filing
with, or Consent of, any public body or authority is necessary
for the consummation by Regions of the Merger and the other
transactions contemplated in this Agreement.
6.3 Capital Stock. The authorized capital stock of
Regions consists, as of the date of this Agreement, of 500,000,000
shares of Regions Common Stock, of which 222,445,291 shares were
issued and outstanding as of September 30, 2000. All of the issued
and outstanding shares of Regions Common Stock are, and all of the
shares of Regions Common Stock to be issued in exchange for shares
of Xxxxxx Common Stock upon consummation of the Merger, when issued
in accordance with the terms of this Agreement, will be, duly and
validly issued and outstanding and fully paid and, except as expressly
provided otherwise under applicable Law, nonassessable under the DGCL.
None of the outstanding shares of Regions Common Stock has been, and
none of the shares of Regions Common Stock to be issued in exchange
for shares of Xxxxxx Common Stock upon consummation of the Merger
will be, issued in violation of any preemptive rights of the current
or past stockholders of Regions.
6.4 Regions Subsidiaries. Regions or one of its Subsidiaries
owns all of the issued and outstanding shares of capital stock of
each Regions Subsidiary. No equity securities of any Regions
Subsidiary are or may become required to be issued (other than
to another Regions Company) by reason of any Rights, and there
are no Contracts by which any Regions Subsidiary is bound to
issue (other than to another Regions Company) additional shares
of its capital stock or Rights or by which any Regions Company
is or may be bound to transfer any shares of the capital stock
of any Regions Subsidiary (other than to another
Regions Company). There are no Contracts relating to the rights
of any Regions Company to vote or to dispose of any shares of
the capital stock of any Regions Subsidiary. All of the shares
of capital stock of each Regions Subsidiary held by a Regions
Company are fully paid and, except as provided in statutes
pursuant to which depository institution Subsidiaries are
organized, except as expressly provided otherwise under
applicable Law, nonassessable under the applicable corporate
or banking Law of the jurisdiction in which such Subsidiary
is incorporated or organized and are owned by the Regions
Company free
and clear of any Lien. Each Regions Subsidiary is either a
bank or a corporation, and is duly organized, validly existing,
and (as to corporations) in good standing under the Laws
A-28
of the
jurisdiction in which it is incorporated or organized, and has
the corporate power and authority necessary for it to own, lease,
and operate its assets and to carry on its business as now
conducted. Each Regions Subsidiary is duly qualified or licensed
to transact business as a foreign corporation in good standing
in the States of the United States and foreign jurisdictions
where the character of its assets or the nature or conduct
of its business requires it to be so qualified or licensed,
except for such jurisdictions in which the failure to be so
qualified or licensed is not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect
on Regions. Each Regions Subsidiary that is a depository
institution is an "insured depository institution" as defined
in the Federal Deposit Insurance Act and applicable
regulations thereunder, and the deposits in which are insured
by the Bank Insurance Fund or Savings Association Insurance
Fund to the fullest
extent permitted by Law. The minute book and other
organizational documents (and all amendments thereto)
for Regions and each Regions Subsidiary that is a
"Significant Subsidiary" (as such term is defined in
Regulation S-X promulgated under the 0000 Xxx) have been
or will be made available to Xxxxxx for its review, and
are true and complete as in effect as of November 30, 2000.
No material actions have been taken by Regions' Board of
Directors since such date, other than such actions taken
in contemplation of the execution of this Agreement and the
consummation of the transactions contemplated herein.
6.5 SEC Filings; Financial Statements.
(a) Regions has filed and made available to Xxxxxx
all forms, reports, and documents required to be filed by
Regions with the SEC since January 1 of the second complete
fiscal year preceding the date of this Agreement (collectively,
the "Regions SEC Reports"). The Regions SEC Reports (i) at
the time filed, complied in all material respects with the
applicable requirements of the 1933 Act and the 1934 Act,
as the case may be, and (ii) did not at the time they were
filed (or if amended or superseded by a filing prior to the
date of this Agreement, then on the date of such filing)
contain any untrue statement of a material fact or omit to
state a material fact required to be stated in such Regions
SEC Reports or necessary in order to make the statements in
such Regions SEC Reports, in light of the circumstances under
which they were made, not misleading. Except for Regions
Subsidiaries that are registered as a broker,
dealer, or investment adviser or filings required due to
fiduciary holdings of the Regions Subsidiaries, none of
Regions Subsidiaries is required to file any forms, reports,
or other documents with the SEC.
(b) Each of the Regions Financial Statements (including,
in each case, any related notes) contained in the Regions SEC
Reports, including any Regions SEC Reports filed after the date
of this Agreement until the Effective Time, complied or will
comply as to form in all material respects with the applicable
published rules and regulations of the SEC with respect thereto,
was or will be prepared in accordance with GAAP applied on a
consistent basis throughout the periods involved (except as
may be indicated in the notes to such financial statements or,
in the case of unaudited statements, as permitted by Form 10-Q
of the SEC), and fairly presented or will fairly present the
consolidated financial position of Regions and its Subsidiaries
as at the respective dates and the
consolidated results of its operations and cash flows for the
periods indicated, except that the unaudited interim financial
statements were or are subject to normal and recurring year-end
adjustments which were not or are not expected to be material
in amount or effect.
6.6 Absence of Undisclosed Liabilities. No Regions
Company has any Liabilities that are reasonably likely to have,
individually or in the aggregate, a Material Adverse
A-29
Effect on
Regions, except Liabilities which are accrued or reserved against
in the consolidated balance sheets of Regions as of September
30, 2000, included in the Regions Financial Statements or
reflected in the notes thereto, Liabilities incurred in the
ordinary course of business subsequent to September 30, 2000,
and Liabilities to be incurred in connection with the
transactions contemplated by the Agreement. No Regions Company
has incurred or paid any Liability since September 30, 2000,
except for such Liabilities incurred or paid in the ordinary
course of business consistent with past business practice and
which are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Regions.
6.7 Absence of Certain Changes or Events. Since
September 30, 2000, except as disclosed in the Regions Financial
Statements delivered prior to the date of this Agreement, there
have been no events, changes or occurrences which have had, or
are reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on Regions.
6.8 Compliance with Laws. Regions is duly registered
as a bank holding company under the BHC Act. Each Regions Company
has in effect all Permits necessary for it to own, lease, or
operate its material assets and to carry on its business as now
conducted, except for those Permits the absence of which are not
reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Regions, and there has occurred no
Default under any such Permit, other than Defaults which are not
reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Regions.
None of the Regions Companies:
(a) is in violation of any Laws, Orders, or Permits
applicable to its business or employees conducting its business,
except for violations which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Regions; and
(b) has received any notification or communication from
any agency or
department of federal, state, or local government or any
Regulatory Authority or the staff thereof (i) asserting that
any Regions Company is not in compliance with any of the Laws
or Orders which such governmental authority or Regulatory
Authority enforces, where such noncompliance is reasonably
likely to have, individually or in the aggregate, a Material
Adverse Effect on Regions, (ii) threatening to revoke any
Permits, the revocation of which is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect
on Regions, or (iii) requiring any Regions Company (x) to
enter into or consent to the issuance of a cease and desist
order, formal agreement, directive, commitment, or memorandum
of understanding, or (y) to adopt any Board resolution or
similar undertaking, which restricts materially the conduct
of its business, or in any manner relates to its capital
adequacy, its credit or reserve policies, its management,
or the payment of dividends.
6.9 Tax Matters. (a) Since December 31, 1994,
all material Tax Returns required to be filed by or on behalf
of each Regions Company have been timely filed, or requests
for extensions have been timely filed, granted, and have not
expired for periods ended on or before December 31, 1999, and
all Tax Returns filed are complete and accurate in all material
respects. All Tax Returns for periods ending on or before the
date of the most recent fiscal year end immediately preceding
the Effective Time will be timely filed or requests for
extensions will be timely filed. All Taxes shown on filed
Tax Returns have
been paid. There is no audit examination, deficiency, or
refund Litigation with respect to
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any Taxes, that is reasonably
likely to result in a determination that would have,
individually or in the aggregate, a Material Adverse Effect
on Regions, except to the extent reserved against in the Regions Financial
Statements dated prior to the date of this Agreement. All
material Taxes and other material Liabilities due with respect
to completed and settled examinations or concluded Litigation
have been paid.
(c) Adequate provision for any material Taxes due or to
become due for each Regions Company for the periods or periods
through and including the date of the respective Regions Financial
Statements has been made and is reflected on such Regions Financial
Statements.
(d) Each of the Regions Companies is in material compliance
with, and its records contain the information and documents
(including properly completed IRS Forms W-9) necessary to comply
with, in all material respects, applicable information reporting
and Tax withholding requirements under federal, state, and local
Tax Laws, and such records identify with specificity all accounts
subject to backup withholding under Section 3406 of the Internal
Revenue Code.
(e) There are no material Liens with respect to Taxes upon
any of the assets of any Regions Companies.
(f) No Regions Company has filed any consent under Section
341(f) of the Internal Revenue Code concerning collapsible corporations.
6.10 Legal Proceedings. There is no Litigation instituted
or pending, or, to the Knowledge of Regions, threatened against
any Regions Company, or against any asset, employee benefit plan,
interest, or right of any of them, that is reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect
on Regions, nor are there any Orders of any Regulatory
Authorities, other governmental authorities, or arbitrators
outstanding against any Regions Company, that are reasonably
likely to have, individually or in the aggregate, a Material
Adverse Effect on Regions.
6.11 Reports. Since December 31, 1995, or the date
of organization if later, each Regions Company has timely filed
all reports and statements, together with any amendments
required to be made with respect thereto, that it was required
to file with any Regulatory Authorities, except failures to
file which are not reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on Regions. As of
their respective dates, each of such reports and documents,
including the financial statements, exhibits, and schedules
thereto, complied in all material respects with all applicable Laws.
6.12 Statements True and Correct. None of the
information supplied or to be supplied by any Regions Company
or any Affiliate thereof regarding Regions or such Affiliate
for inclusion in the Registration Statement to be filed by
Regions with the SEC will, when the Registration Statement
becomes effective, contain any untrue statement of a material
fact, or omit to state any material fact required to be
stated thereunder or necessary to make the statements
therein not misleading. None of the information supplied
or to be supplied by any Regions Company or any Affiliate
thereof for inclusion in the Proxy Statement to be mailed
to Xxxxxx'x stockholders in connection with the
Stockholders' Meeting, will, when first mailed to the
stockholders of Xxxxxx, contain any misstatement of material
fact, or omit to state any material fact required to be
stated thereunder or necessary to make the statements therein,
in light of the circumstances under which they were made,
not misleading, or, in the case of the Proxy Statement or
any amendment thereof or supplement thereto, at the time of
the Stockholders' Meeting,
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omit to state any material fact
required to be stated thereunder or necessary to correct any
material statement in any earlier communication with respect
to the solicitation of any proxy for the Stockholders'
Meeting. All documents that any Regions Company or any
Affiliate thereof is responsible for filing with any Regulatory
Authority in connection with the transactions contemplated
hereby will comply as to form in all material respects with
the provisions of applicable Law.
6.13 Tax and Regulatory Matters. No Regions Company
or any Affiliate thereof has taken or agreed to take any action,
and Regions has no Knowledge of any fact or circumstance that
is reasonably likely to (i) prevent the Merger from qualifying
as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code, or (ii) materially impede or delay
receipt of any Consents of Regulatory Authorities referred
to in Section 9.1(b) of this Agreement. To the Knowledge of
Regions there exists no fact, circumstance, or reason why the
requisite Consents referred to in Section 9.1(b) of this
Agreement cannot be received in a timely manner.
6.14 Derivatives. All interest rate swaps, caps,
floors, option agreements, futures and forward contracts,
and other similar risk management arrangements, whether entered
into for Regions' own account, or for the account of one or
more the Regions Subsidiaries or their customers, were entered
into (i) in accordance with prudent business practices and all
applicable Laws, and (ii) with counterparties believed to be
financially responsible; and each of them is enforceable in
accordance with its terms (except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and similar laws of general
applicability relating to or affecting creditors' rights or by
general equity principles), and are in full force and effect.
Neither Regions nor a Regions Subsidiary, nor to Regions' Knowledge,
any other party thereto, is in breach of any of its obligations
under any such agreement or arrangement. The Regions Financial
Statements disclose the value of such agreements and arrangements
on a xxxx-to-market basis in accordance with GAAP and, since
September 30, 2000, there has not been a
change in such value that, individually or in the aggregate,
has resulted in a Material Adverse Effect on Regions.
6.15 Funds. At the Effective Time, Regions will
have the funds necessary to consummate the Merger and pay the
Aggregate Cash Amount in accordance with the terms of this Agreement.
6.16 Ownership of Xxxxxx Capital Stock. Neither
Regions nor any of its Subsidiaries, Affiliates, or "Associates"
as defined in Section 00-000-000 or Section 00-000-000 of the
TBCA) beneficially owns, directly or indirectly, any capital
stock of Xxxxxx or is a party to any agreement, arrangement,
or understanding for the purpose of acquiring, holding, voting,
or disposing of any capital stock of Xxxxxx that in the
aggregate equals or exceeds 5.0% of the outstanding shares x
x Xxxxxx Common Stock, other than as contemplated by this Agreement.
ARTICLE 7
Conduct of Business Pending Consummation
7.1 Affirmative Covenants of Both Parties. Unless
the prior written consent of the other Party shall have been
obtained, and except as otherwise expressly contemplated herein
or set forth in Section 7.1 or Section 7.2 of the Xxxxxx
Disclosure Memorandum, each Party shall and shall cause each
of its Subsidiaries to (i) operate its business only in
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the
usual, regular, and ordinary course, (ii) use its reasonable
efforts to preserve intact its
business organization and assets and maintain its rights and
franchises, (iii) use its reasonable efforts to maintain its
current employee relationships, and (iv) take no action which
would (a) adversely affect the ability of any Party to obtain
any Consents required for the transactions contemplated hereby,
or (b) adversely affect the ability of any Party to perform
its covenants and agreements under this Agreement; provided,
that the foregoing shall not prevent any Regions Company from
discontinuing or disposing of any of its assets
or business, or from acquiring or agreeing to acquire any
other Person or any assets thereof, if such action is, in
the reasonable good faith judgment of Regions, desirable in
the conduct of the business of Regions and its Subsidiaries
and such action would not jeopardize the receipt of Consents
required to consummate the transaction contemplated hereby or
delay the Effective Time beyond the date set forth in Section
10.1(e) of this Agreement. Xxxxxx shall use all reasonable
efforts to purchase all shares of Xxxxxx
Common Stock to be issued prior to the Effective Time pursuant
to Permitted Issuances, to the extent practicable and permitted
by the Xxxxxx Stock Plans, in the open market, subject to all
applicable requirements of the Securities Laws.
7.2 Negative Covenants of Xxxxxx. From the date
of this Agreement until the earlier of the Effective Time or
the termination of this Agreement, except as specifically
contemplated by this Agreement or as set forth in Section
7.2 of the Xxxxxx Disclosure Memorandum, Xxxxxx covenants
and agrees that it will not do or agree or commit to do, or
permit any of its Subsidiaries to do or agree or commit to
do, any of the following without the prior written consent
of Regions, which consent shall not be unreasonably withheld:
(a) amend the Articles of Incorporation, Bylaws, or
other governing instruments of any Xxxxxx Company; or
(b) incur, guarantee, or otherwise become responsible
for, any additional debt obligation or other obligation for
borrowed money (other than indebtedness of a Xxxxxx Company to
another Xxxxxx Company) in excess of an aggregate of
$5,000,000 (for the Xxxxxx Companies on a consolidated basis),
except in the
ordinary course of business consistent with past practices
(which shall include entry into repurchase agreements or other
fully secured securities), or impose, or suffer the imposition,
on any asset of any Xxxxxx Company of any material Lien,
except in the ordinary course of business consistent with past
practices; or
(c) except as contemplated by Section 7.1 of this
Agreement, repurchase,
redeem, or otherwise acquire or exchange (other than exchanges
in the ordinary
course under employee benefit plans), directly or indirectly,
any shares, or any
securities convertible into any shares, of the capital stock
of any Xxxxxx Company, or declare or pay any dividend or make
any other distribution in respect of Xxxxxx'x capital stock;
provided that Xxxxxx may (to the extent legally able to do so),
but shall not be obligated to declare and pay regular quarterly
cash dividends on the Xxxxxx Common Stock in an amount per share
and with the usual and regular record and payment dates as
disclosed in Section 7.2(c) of the Xxxxxx Disclosure Memorandum,
and provided, that, notwithstanding the provisions of Section 1.3
of this Agreement, the Parties shall cooperate in selecting the
Effective Time to ensure that, with respect to the quarterly period
in which the Effective Time occurs, the holders of Xxxxxx Common
Stock do not become entitled to receive both a dividend in respect
of their Xxxxxx Common Stock and a dividend in respect of their
Regions Common Stock or fail to be entitled to receive any dividends;
or
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(d) except (i) for this Agreement, (ii) for Permitted Issuances,
or (iii) pursuant to the exercise of Rights outstanding as of the
date of this Agreement and pursuant to the terms thereof in existence
on the date of this Agreement, (1) issue, sell, pledge, encumber,
authorize the issuance of, (2) enter into any Contract to issue, sell,
pledge, encumber, or authorize the issuance of, or (3) otherwise
permit to become outstanding, any additional shares of Xxxxxx Common
Stock or any capital stock of any Xxxxxx Company, or any stock
appreciation rights, or any option, warrant, conversion, or other
right to acquire any such stock, or any security convertible into
any such stock; or
(e) adjust, split, combine, or reclassify any capital stock
of any Xxxxxx
Company or issue or authorize the issuance of any other securities
in respect of or in substitution for shares of Xxxxxx Common Stock
(other than upon the exercise of existing Rights), or sell, lease,
mortgage, or otherwise dispose of or otherwise encumber (i) any
shares of capital stock of any Xxxxxx Subsidiary (unless any such
shares of stock are sold or otherwise transferred to another
Xxxxxx Company), or (ii) any asset other than in the ordinary
course of business for reasonable and adequate consideration
and other than dispositions in the ordinary course of business
consistent with past practice; or
(f) purchase any securities or make any material investment
in any Person,
except for (i) investments in trading account securities,
venture capital, or other funds, (ii) securities held available
for sale, (iii) client margin agreements, (iv) securities
acquired pursuant to underwriting agreements in which Xxxxxx
participated as an underwriter or dealer, (v) securities acquired
as a result of debts owing to Xxxxxx or the Xxxxxx Subsidiaries
by their customers, (vi) securities lending, or borrowing
arrangements, (vii) securities acquired in arbitrage, hedging,
forward, or futures transactions, and (viii) acquisitions of
money managers, in each case, in the ordinary course of business
and consistent with past practice, either by purchase of stock
or securities, contributions to capital, asset transfers, or
purchase of any assets, in any Person other than a wholly-owned
Xxxxxx Subsidiary, or otherwise acquire direct or indirect control
over any Person, other than in connection with (1) acquisitions
of control by a depository institution Subsidiary in its fiduciary
capacity, or (2) the creation of new Subsidiaries or funds organized
to conduct or continue activities in the ordinary course of business;
or
(g) (i) grant any increase in compensation or benefits to
the employees, officers, or directors of any Xxxxxx Company,
except as required by Law, (ii) pay any severance or termination
pay or any bonus other than pursuant to written policies or written
Contracts in effect on the date of this Agreement, or (iii) enter
into or amend any severance agreements with officers of any Xxxxxx
Company; or
(h) enter into or amend any employment Contract between any
Xxxxxx
Company and any Person (unless such amendment is required by Law)
that the
Xxxxxx Company does not have the unconditional right to terminate
without Liability (other than Liability for services already
rendered and in accordance with the Xxxxxx Benefit Plans), at any
time on or after the Effective Time; or
(i) adopt any new employee benefit plan of any Xxxxxx Company
or make any
material change in or to any existing employee benefit plans of
any Xxxxxx Company other than any such change that is required by
Law or that, in the opinion of counsel, is necessary or advisable
to maintain the tax qualified status of any such plan; or
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(j) make any significant change in any Tax or accounting
methods, material
elections, or systems of internal accounting controls,
except as may be appropriate to conform to changes in Tax
Laws or regulatory accounting requirements or GAAP; or
(k) except as Xxxxxx may xxxx necessary to enforce
its rights under this
Agreement, commence any Litigation other than as deemed
necessary or advisable in the good faith judgment of
management for the prudent operation of its business or
settle any Litigation involving any Liability of any Xxxxxx
Company for material money damages or restrictions upon the
operations of any Xxxxxx Company; or
(l) except in the ordinary course of business, modify,
amend, or terminate any material Contract or waive, release,
compromise, or assign any material rights or claims; or
(m) except as and to the extent required, based upon the
written advice of
counsel, in the exercise of the fiduciary obligations of
Xxxxxx or a Xxxxxx Subsidiary to any Xxxxxx Investment Company,
request that any action be taken by any Fund Board, other than
routine actions that would not reasonably likely have, individually
or in the aggregate, a Material Adverse Effect on Xxxxxx or any
Xxxxxx Investment Company; or
(n) (i) enter into any new line of business, or (ii)
except in the ordinary course of business, materially restructure
or materially change (1) its investment securities portfolio
(except as a result of maturities, redemptions, calls, or
similar events affecting the securities held, provided that
any such restructuring change does not result in a material
change to the credit or risk concentrations of Xxxxxx and the
Xxxxxx Subsidiaries), (2) its hedging strategy, or (3) its gap
position (except as a result of maturities, redemptions, calls,
or other similar events affecting the securities held, provided
that any such restructuring or change does not result in a
material change to the credit or risk concentrations of Xxxxxx
and the Xxxxxx Subsidiaries as of the date of such restructuring
or change), through purchases, sales, or otherwise.
7.3 Adverse Changes in Condition. Each Party agrees
to give written notice promptly to the other Party upon becoming
aware of the occurrence or impending occurrence of any event or
circumstance relating to it or any of its Subsidiaries which (i)
is reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on it, or (ii) would cause or constitute
a material breach of any of its representations, warranties, or
covenants
contained herein, and to use its reasonable efforts to prevent or
promptly to remedy the same.
7.4 Reports. Each Party and its Subsidiaries shall
file all reports required to be filed by it with Regulatory
Authorities between the date of this Agreement and the Effective
Time and shall deliver to the other Party copies of all such
reports promptly after the same are filed.
ARTICLE 8
Additional Agreements
8.1 Registration Statement; Proxy Statement; Stockholder
Approval. As soon as reasonably practicable after execution
of this Agreement, Regions shall file the Registration Statement
with the SEC, and shall use its reasonable efforts to cause the
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Registration Statement to become effective under the 1933 Act and
take any action required to be taken under the applicable state
Blue Sky or securities Laws in connection with the issuance of
the shares of Regions Common Stock upon consummation of the
Merger. Xxxxxx shall furnish all information concerning it
and the holders of its capital stock as Regions may reasonably
request for inclusion in the Registration Statement. Xxxxxx
shall call a Stockholders' Meeting, to be held as soon as
reasonably practicable
after the Registration Statement is declared effective by the
SEC, for the purpose of voting upon approval of this Agreement
and such other related matters as it deems appropriate. In
connection with the Stockholders' Meeting, (i) Xxxxxx shall
prepare and file with the SEC a Proxy Statement and mail such
Proxy Statement to its stockholders, (ii) the Parties shall
furnish to each other all information concerning them that they
may reasonably request in connection with such Proxy
Statement, (iii) the Board of Directors of Xxxxxx shall
recommend to its stockholders the approval of the matters
submitted for approval, and (iv) the Board of Directors of
Xxxxxx shall use its reasonable efforts to obtain such
stockholders' approval, provided that Xxxxxx may withdraw,
modify, or change in an adverse manner to Regions its
recommendations if the Board of Directors of Xxxxxx, after
having consulted with and based upon the advice of outside
counsel, determines in good faith that the failure to so
withdraw, modify, or change its recommendation could reasonably
constitute a breach of the fiduciary duties of Xxxxxx'x Board
of Directors under applicable Law. In addition, nothing in
this Section 8.1 or elsewhere in this Agreement shall prohibit
accurate disclosure by Xxxxxx of information that is required
to be disclosed
in the Registration Statement or the Proxy Statement or in any
other document required to be filed with the SEC (including,
without limitation, a Solicitation/Recommendation
Statement on Schedule 14D-9) or otherwise required to be
publicly disclosed by applicable Law or regulations or rules
of the NASD.
8.2 Applications. Regions shall promptly prepare
and file, and Xxxxxx shall cooperate in the preparation
and, where appropriate, filing of, applications with all
Regulatory Authorities having jurisdiction over the transactions
contemplated by this Agreement seeking the requisite Consents
necessary to consummate the transactions contemplated by
this Agreement. Regions will promptly furnish to Xxxxxx copies
of applications filed with all Regulatory Authorities and copies
of written communications received by Regions from any Regulatory
Authorities with respect to the transactions contemplated hereby.
Each of Regions and Xxxxxx agrees that it will consult with the
other Party thereto with respect to the obtaining of all material
Consents necessary or
advisable to consummate the transactions contemplated by this
Agreement and each Party will keep the other Party apprised of
the status of material matters relating to completion of the
transactions contemplated hereby.
8.3 Filings with State Offices. Upon the terms and
subject to the conditions of this Agreement, Regions shall
execute and file the Delaware Certificate of Merger with the
Secretary of State of the State of Delaware and the Tennessee
Articles of Merger with the Secretary of State of the State of
Tennessee in connection with the Closing.
8.4 Agreement as to Efforts to Consummate. Subject
to the terms and conditions of this Agreement, each Party agrees
to use, and to cause its Subsidiaries to use, its reasonable
efforts to take, or cause to be taken, all actions, and to do,
or cause to be done, all things necessary, proper, or advisable
under applicable Laws to consummate and make effective, as soon
as reasonably practicable after the date of this Agreement, the
transactions contemplated by this Agreement, including, without
limitation, using its reasonable efforts to lift or rescind any
Order adversely affecting its ability to consummate
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the transactions contemplated herein and to cause to be
satisfied the conditions referred to in Article 9 of this
Agreement; provided, that nothing herein shall preclude
either Party from exercising its rights under this Agreement.
Each Party shall use, and shall cause each
of its Subsidiaries to use, its reasonable efforts to obtain
as promptly as practicable all Consents necessary or desirable
for the consummation of the transactions contemplated by this
Agreement.
8.5 Investigation and Confidentiality. (a) Prior
to the Effective Time, each Party shall keep the other Party
advised of all material developments relevant to its business
and to consummation of the Merger and shall permit the other
Party to make or cause to be made such investigation of the
business and properties of it and its Subsidiaries and of their
respective financial and legal conditions as the other Party
reasonably requests, provided that such investigation shall be
reasonably related to the transactions contemplated hereby and
shall not interfere unnecessarily with normal operations. No
investigation by a Party shall affect the representations and
warranties of the other Party.
(b) Each Party shall, and shall cause its advisers and
agents to, maintain the confidentiality of all confidential
information furnished to it by the other Party concerning its
and its Subsidiaries' businesses, operations, and financial
positions to the extent required by, and in accordance with
confidentiality agreements between the Parties, and shall not
use such information for any purpose except in furtherance of
the transactions contemplated by this Agreement. If this Agreement
is terminated prior to the Effective Time, each Party shall
promptly return or certify the destruction of all documents and
copies thereof, and all work papers containing confidential
information received from the other Party.
(c) Each Party agrees to give the other Party notice
as soon as practicable after any determination by it of any
fact or occurrence relating to the other Party which it has
discovered through the course of its investigation and which
represents, or is reasonably likely to represent, either a
material breach of any representation, warranty, covenant, or
agreement of the other Party or which has had or is reasonably
likely to have a Material Adverse Effect on the other Party;
provided, however, that the giving of such notice shall
not be dispositive of the occurrence of such breach or a
Material Adverse Effect.
(d) Neither Party nor any of their respective
Subsidiaries shall be required to provide access to or
to disclose information where such access or disclosure
would violate or prejudice the rights of its customers,
jeopardize the attorney-client or similar privilege with
respect to such information or contravene any Law, rule,
regulation, Order, judgment, decree, fiduciary duty, or
agreement entered into prior to the date of this Agreement.
The Parties will use their reasonable efforts to make
appropriate substitute disclosure
arrangements, to the extent practicable, in circumstances
in which the restrictions of the preceding sentence apply.
8.6 Press Releases. Prior to the Effective Time,
Regions and Xxxxxx shall consult with each other as to the
form and substance of any press release materially related
to this Agreement or any other transaction contemplated
hereby; provided, that nothing in this Section 8.6
shall be deemed to prohibit any Party from making any
disclosure which its counsel deems necessary or advisable
in order to satisfy such Party's disclosure obligations
imposed by Law.
8.7 No Solicitation. Except with respect to
this Agreement and the transactions contemplated hereby,
Xxxxxx agrees that it shall not, and shall use its
reasonable efforts
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to cause its officers, directors,
agents, Affiliates, and Representatives not to, directly
or indirectly, initiate, solicit, encourage or knowingly
facilitate (including by way of furnishing confidential
information) any inquiries or the making of any
Acquisition Proposal. Notwithstanding anything herein
to the contrary, Xxxxxx and its Board of Directors shall
be permitted (i) to the extent applicable, to comply
with Rule 14d-9 and Rule 14e-2 promulgated under the
1934 Act with regard to an Acquisition Proposal, (ii)
to engage in any discussions or negotiations with, or
provide any information to, any Person in response to
an unsolicited bona fide written Acquisition Proposal
by any such Person, if and only to the extent that
(a) Xxxxxx'x Board of Directors concludes in good
faith and consistent with its fiduciary duties to
Xxxxxx'x stockholders under applicable Law that such
Acquisition Proposal could reasonably be expected to
result in a Superior Proposal, (b) prior to providing
any information or data to any Person in connection
with an Acquisition Proposal by any such Person,
Xxxxxx'x Board of Directors receives from such Person
an executed confidentiality agreement containing terms
at least as stringent as those contained in the Xxxxxx
Confidentiality Agreement, and (c) prior to providing
any information or data to any Person or entering into
discussions or negotiations with any Person, Xxxxxx'x
Board of Directors notifies Regions promptly of such
inquiries, proposals, or offers received by, any such
information requested from, or any such discussions or
negotiations sought to be initiated or continued with,
any of its Representatives indicating, in connection with
such notice, the name of such Person and the material terms
and conditions of any inquiries, proposals or offers. Xxxxxx
agrees that it will promptly keep Regions informed of the
status and terms of any such proposals or offers and the
status and terms of any such discussions or negotiations.
Xxxxxx agrees that it will, and will cause its officers,
directors and Representatives to, immediately cease and
cause to be
terminated any activities, discussions, or negotiations
existing as of the date of this Agreement with any parties
conducted heretofore with respect to any Acquisition Proposal.
Xxxxxx agrees that it will use reasonable best efforts to
promptly inform its directors, officers, key employees,
agents, and Representatives of the obligations undertaken
in this Section 8.7. Nothing in this Section 8.7 shall
(i) permit Xxxxxx to terminate this Agreement (except
as specifically provided in Article 10 of this Agreement)
or (ii) affect any other obligation of Regions or Xxxxxx
under this Agreement.
8.8 Tax Treatment. Each of the Parties undertakes
and agrees to use its reasonable efforts to cause the Merger,
and to take no action which would cause the Merger not, to
qualify for treatment as a "reorganization" within the meaning
of Section 368(a) of the Internal Revenue Code for federal
income tax purposes.
8.9 Agreement of Affiliates. Xxxxxx has disclosed
in Section 8.9 of the Xxxxxx Disclosure Memorandum each
Person whom it reasonably believes may be deemed an
"affiliate" of Xxxxxx for purposes of Rule 145 under the
1933 Act. Xxxxxx shall use its reasonable efforts to cause
each such Person to deliver to Regions not later than the
Effective Time, a written agreement, in substantially the
form of Exhibit 3, providing that such Person will not sell,
pledge, transfer, or otherwise dispose of the shares of
Xxxxxx Common Stock held by such Person except as contemplated
by such agreement or by this Agreement and will not sell,
pledge, transfer, or otherwise dispose of the shares of Regions
Common Stock to be received by such Person upon consummation
of the Merger except in compliance with applicable provisions
of the 1933 Act and the rules and regulations thereunder.
Shares of Regions Common Stock issued to such affiliates of
Xxxxxx in exchange for shares of Xxxxxx Common Stock shall
not be transferable, regardless of whether each such
affiliate has provided the written agreement referred to
in this Section 8.9 (and Regions shall be entitled to
place restrictive legends upon certificates for
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shares
of Regions Common Stock issued to affiliates of Xxxxxx
pursuant to this Agreement to enforce the provisions of
this Section 8.9), except as provided herein. Regions
shall not be required to maintain the effectiveness of
the Registration Statement under the 1933 Act for the
purposes of resale of Regions Common Stock by such affiliates.
8.10 Employee Benefits and Contracts. (a) Following
the Effective Time, Regions at its election shall
either (i) provide generally to officers and employees
of the Xxxxxx Companies, who at or after the Effective
Time become employees of a Regions Company ("Continuing
Employees"), employee benefits under employee benefit
plans, on terms and conditions which when taken as a
whole are substantially similar to those currently
provided by the Regions Companies to their similarly
situated officers and employees, or (ii) maintain for
the benefit of the Continuing Employees, the employee
benefits plans maintained by Xxxxxx and/or any Xxxxxx
Subsidiary immediately prior to the Effective
Time, provided that after the Effective Time there is no
material reduction (determined on an overall basis) in
the benefits provided under the Xxxxxx employee benefit
plans.
(b) In the case of Regions' election to provide
employee benefits under
Section 8.10(a)(i) of this Agreement, for purposes of
participation and vesting (but not accrual of benefits)
under Regions' employee benefit plans, (i) service under
any qualified defined benefit plans of any Xxxxxx Company
or any of its predecessors shall be treated as service
under Regions' qualified defined benefit plans, (ii) service
under any qualified defined contribution plans of any Xxxxxx
Company or any of its predecessors shall be treated as
service under Regions' qualified defined contribution plans,
and (iii) service under any other employee benefit plans of
any Xxxxxx Company or any of its predecessors shall be treated
as service under any similar employee benefit plans maintained
by
Regions. Regions shall cause the Regions welfare benefit plans
that cover the Continuing Employees after the Effective Time
to (i) waive any waiting period and restrictions and limitations
for preexisting conditions or insurability (except for
pre-existing conditions that were excluded under Xxxxxx'x
welfare benefit plans), and (ii) cause any deductible, co-insurance,
or maximum out-of-pocket payments made by the Continuing
Employees under Xxxxxx'x welfare benefit plans to be credited
to such Continuing Employees under the Regions welfare benefit
plans, so as to reduce the amount of any deductible, co-insurance,
or maximum out-of-pocket payments payable by the Continuing
Employees under the
Regions welfare benefit plans. The continued coverage of
the Continuing Employees under the employee benefits plans
maintained by Xxxxxx and/or any Xxxxxx Subsidiary
immediately prior to the Effective Time during a transition
period continuing for a reasonable period of time after the
Effective Time shall be deemed to provide the Continuing
Employees with benefits that are no less favorable than
those offered to other employees of Regions and its Subsidiaries,
provided that after the Effective Time there is no material
reduction (determined on an overall basis) in the benefits
provided under the
Xxxxxx employee benefit plans.
(c) Regions shall and shall cause Xxxxxx and its
Subsidiaries to honor all
employment, severance, consulting, and other compensation
Contracts disclosed in
Sections 7.2 or 8.10 of the Xxxxxx Disclosure Memorandum to
Regions between any
Xxxxxx Company and any current or former director, officer,
or employee thereof, and all provisions for vested benefits
or other vested amounts earned or accrued through the
Effective Time under the Xxxxxx Benefit Plans. Regions
shall be responsible for the fees related to the
termination of the Xxxxxx Benefit Plans.
8.11 Indemnification. (a) From and after the
Effective Time, in the event of any threatened or actual
claim, action, suit, proceeding, or investigation,
whether civil, criminal,
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or administrative, including, without limitation, any
such claim, action, suit, proceeding or investigation
in which any person who is now, or has been at any time
prior to the date of this Agreement, or who becomes prior
to the Effective Time, a director or officer of
Xxxxxx or any Xxxxxx Subsidiary (the "Indemnified Parties")
is, or is threatened to be, made a party based in whole or
in part on, or arising in whole or in part out of, or
pertaining to (i) the fact that he is or was a director,
officer, or employee of Xxxxxx, any of the Xxxxxx Subsidiaries,
or any of their respective predecessors, or (ii) this
Agreement or any of the transactions contemplated hereby,
whether in any case asserted or arising before or after the
Effective Time, Regions shall indemnify and hold harmless,
as and to the fullest extent permitted by Law, each such
Indemnified Party against any Liability (including reasonable
attorneys' fees and expenses in advance of the final
disposition of any claim, suit, proceeding, or investigation
to each Indemnified Party to the fullest extent permitted
by Law upon receipt of any undertaking required by
applicable Law), judgments, fines, and amounts paid in
settlement in connection with any such threatened or
actual claim, action, suit, proceeding, or investigation,
and in the event of any such threatened or actual claim,
action, suit, proceeding, or investigation (whether
asserted or arising before or after the Effective Time),
the Indemnified Parties may retain counsel reasonably
satisfactory to them; provided, however, that (a) Regions
shall have the right to assume the defense thereof and upon
such assumption Regions shall not be liable to any Indemnified
Party for any legal expenses of other counsel or any other
expenses subsequently incurred by any Indemnified Party in
connection with the defense thereof, except that if Regions
elects not to assume such defense or counsel for the
Indemnified Parties reasonably advises the Indemnified Parties
that there are issues which raise conflicts of interest
between Regions and the Indemnified Parties, the Indemnified
Parties may retain counsel reasonably satisfactory to them,
and Regions shall pay the reasonable
fees and expenses of such counsel for the Indemnified
Parties, (b) Regions shall not be liable for any settlement
effected without its prior written consent (which consent
shall not be unreasonably withheld), and (c) Regions 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
and nonappealable, that indemnification of such Indemnified
Party in the manner contemplated hereby is prohibited by
applicable Law. Regions' obligations under this
Section 8.11(a) continue in full force and effect for a
period of six years after the Effective Time; provided,
however, that all rights to indemnification in respect of
any claim (a "Claim") asserted or made within such period
shall continue until the final disposition of such Claim.
(b) Regions agrees that all rights to indemnification
and all limitations on Liability existing in favor of the
directors, officers, and employees of Xxxxxx and its
Subsidiaries (the "Covered Parties") as provided in their
respective Articles of Incorporation, Bylaws, or similar
governing instruments as in effect as of the date of this
Agreement with respect to matters occurring prior to the
Effective Time shall survive the Merger and shall continue
in full force and effect, and shall be honored by such
entities or their respective
successors as if they were the indemnifying party thereunder,
without any amendment thereto, for a period of six years
after the Effective Time; provided, however, that all
rights to indemnification in respect of any Claim asserted
or made within such period shall continue until the final
disposition of such Claim; provided, further, however,
that nothing
contained in this Section 8.11(b) shall be deemed to preclude
the liquidation,
consolidation, or merger of Xxxxxx or any Xxxxxx Subsidiary,
in which case all of such rights to indemnification and
limitations on Liability shall be deemed to so survive and
continue notwithstanding any such liquidation, consolidation,
or merger. Without limiting the foregoing, in any case in
which approval by Regions is required to effectuate any
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indemnification, Regions shall direct, at the election of
the Indemnified Party, that the determination of any such
approval shall be made by independent counsel mutually agreed
upon between Regions and the Indemnified Party.
(c) Regions, from and after the Effective Time,
will directly or indirectly cause the persons who served
as directors or officers of Xxxxxx at or before the Effective
Time to be covered by Xxxxxx'x existing directors' and
officers' liability insurance policy (provided that Regions
may substitute therefor policies of at least the same
coverage and amounts containing terms and conditions which
are not less advantageous than such policy). Such insurance
coverage, shall commence at the Effective Time and will be
provided for a
period of no less than three years after the Effective Time.
(d) If Regions or any of its successors or assigns
shall consolidate with or merge into any other Person and
shall not be the continuing or surviving Person of such
consolidation or merger or shall transfer all or substantially
all of its assets to any Person, then and in each case, proper
provision shall be made so that the successors and assigns of
Regions shall assume the obligations set forth in this
Section 8.11.
(e) The provisions of this Section 8.11 are intended
to be for the benefit of and shall be enforceable by, each
Indemnified Party, his or her heirs and representatives.
8.12 Exemption from Liability Under Section 16(b).
If Xxxxxx delivers to Regions in a timely fashion prior to the
Effective Time accurate information regarding those officers
and directors of Xxxxxx subject to the reporting requirements
of Section 16(a) of the 1934 Act (the "Xxxxxx Insiders"), the
number of shares of Xxxxxx Common Stock held or to be held by
each such Xxxxxx Insider expected to be exchanged for the Regions
Common Stock in the Merger, and the number and description of
the options to purchase shares of Xxxxxx Common Stock held by
each such Xxxxxx Insider and expected to be converted into
options to purchase the Regions Common Stock in the Merger,
the Board of Directors of Regions, or a committee of
non-employee directors thereof (as such term is
defined for purposes of Rule 16b-3(d) under the 1934 Act),
shall reasonably promptly thereafter, and in any event prior
to the Effective Time, adopt a resolution providing that the
receipt by the Xxxxxx Insiders of the Regions Common Stock in
exchange for shares of Xxxxxx Common Stock, and of options to
purchase shares of the Regions Corporation Common Stock upon
conversion of options to purchase Xxxxxx Common Stock, in each
case pursuant to the transactions contemplated by this Agreement
and to the extent such securities are listed in the information
provided by Xxxxxx, are approved by such Board of
Directors or by such committee thereof, and are intended to be
exempt from Liability pursuant to Section 16(b) of the 1934 Act,
such that any such receipt shall be so exempt.
Xxxxxx shall take all such steps as may be required
to cause the transactions
contemplated by Section 3.5 of this Agreement and any
other dispositions of Xxxxxx equity securities
(including derivative securities) in connection
with this Agreement by each individual who is a
director or officer of Xxxxxx to be exempt under
Rule 16b-3 promulgated under the 1934 Act.
8.13 Investment Companies. If the Merger
and the transactions contemplated hereby constitute
a deemed "assignment" (as defined in the Investment
Company Act and the investment Advisers Act) of the
advisory agreement with any Xxxxxx Investment Company:
(a) Xxxxxx shall, and shall use all reasonable
efforts to cause the Xxxxxx
Subsidiaries to, use all reasonable efforts to obtain
approval of each Fund Board,
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pursuant to and in conformity with, Section 15(a)(4) of
the Investment Company Act and SEC Rule 15a-4 promulgated
under the Investment Company Act of an interim investment
advisory agreement for such Investment Company with a Regions
Subsidiary serving as adviser or subadviser, having the same
advisory fees in effect as of the date hereof and becoming
effective prior to the Effective Time, and which agreement
will be in a form satisfying the requirements of Rule
15a-4(b)(2)(iv)&(vi).
(b) In addition to taking the actions specified in
Section 8.13(a), Xxxxxx shall, and shall use all reasonable
efforts to cause the Xxxxxx Subsidiaries to cooperate with
Regions and use all reasonable efforts to obtain, at the sole
expense of Regions, and to cause each Xxxxxx Investment Company
to obtain, as promptly as practicable but in no case later than
150 days after the execution of the interim investment advisory
agreement, the approval of such Fund Board and its stockholders,
pursuant to and in conformity with the provisions of Section 15
of the Investment Company Act and SEC rules thereunder applicable
thereto, of a new Investment Company advisory agreement for such
Xxxxxx Investment Company with a Regions Subsidiary serving
as adviser or subadviser, such agreement having the terms that
are in the aggregate no less favorable to Regions than the
existing agreement.
(c) Xxxxxx and the Xxxxxx Subsidiaries shall cooperate
with Regions and
(i) use all reasonable efforts to cause to be obtained
all
consents and approvals necessary to be obtained by Xxxxxx,
any Xxxxxx Subsidiary or each Xxxxxx Investment Company in
order for the Parties to consummate the transactions
contemplated by this Section 8.13, (ii) use all reasonable
efforts to cause each Xxxxxx Investment Company and its
stockholders to give or obtain any such consents or approvals
relating to such Xxxxxx Investment Company and to use all
reasonable efforts to cause each Xxxxxx Investment Company
to prepare, file with and obtain clearance from the SEC and
all other Regulatory Authorities having jurisdiction, as
promptly as practicable after the date hereof, all proxy
solicitation material required to be filed with the SEC and
all other Regulatory Authorities and distributed to the
stockholders of such Xxxxxx Investment Company with respect
to the actions to be approved by the stockholders of such
Xxxxxx Investment Company in connection with this Agreement,
and (iii) use all reasonable efforts to cause such Xxxxxx
Investment Company to mail such proxy solicitation materials
to such stockholders promptly after clearance thereof by the
SEC and to convene a meeting of the stockholders of such
Xxxxxx Investment Company as soon as reasonably practicable
after the mailing of the proposal as described in
subsection (ii) hereof, all such consents and proxy
solicitation materials to be in form reasonably
satisfactory to Regions, which shall reimburse, as
incurred, all expenses of Xxxxxx and the Xxxxxx
Subsidiaries in connection with such matters. The
Parties shall use all reasonable efforts to assure
the satisfaction of the conditions set forth in
Section 15(f) of the
Investment Company Act with respect to each Xxxxxx
Investment Company.
8.14 Management Contract Consents. As soon
as reasonably practicable after the date hereof,
Xxxxxx shall, and shall cause any Xxxxxx Subsidiary
that is a registered investment adviser (each an
"Adviser") to inform its investment advisory clients
of the transactions contemplated by this Agreement
and request each such client's written consent to the
deemed assignment of its management contract resulting
from the change in ownership of Xxxxxx and the relevant
Adviser resulting from the transactions contemplated by
this Agreement and use all reasonable efforts to obtain
such consent on or before
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the Effective Time. While Xxxxxx shall request
affirmative written consents from each Adviser's
clients to such deemed assignment, a negative consent
will constitute valid
consent to the extent permitted by applicable Law and
the applicable management
contract if (i) a negative consent is not expressly
prohibited by the management contract (for purposes
of this Agreement, it is assumed that, unless an agreement
expressly requires written consent to an "assignment" as
defined under the Investment Advisers Act, then such
"negative consent" or "silence" is permissible hereunder
and thereunder), (ii) a notice describing the change in
control and the negative consent substantially in form
reasonably acceptable to Regions and Xxxxxx is sent to
each client, and (iii) 60 days elapse from the date that
notice is received at the client's office during which
period the
client continues to have its account managed by the
applicable Adviser.
8.15 Retention Program. At the Effective Time,
Regions will establish a retention pool to be used to
retain key employees of Xxxxxx as set forth in Section
8.15 of the Xxxxxx Disclosure Memorandum.
ARTICLE 9
Conditions Precedent to Obligations to Consummate
9.1 Conditions to Obligations of Each Party.
The respective obligations of each Party to perform
this Agreement and to consummate the Merger and the
of the following conditions, unless waived by both
Parties pursuant to Section 11.6 of this Agreement:
(a) Stockholder Approval. The stockholders
of Xxxxxx shall have approved this Agreement as and to
the extent required by Law and by the provisions of any
governing instruments.
(b) Regulatory Approvals. All Consents of,
filings and registrations with, and notifications to
(including the effectiveness of the declaration of
election of financial holding company status by Regions),
all Regulatory Authorities required for consummation of
the Merger shall have been obtained or made and shall
be in full force and effect and all waiting periods
required by Law shall have expired. No Consent obtained
from any Regulatory Authority which is necessary to
consummate the transactions contemplated hereby shall
be conditioned or restricted in a manner which would be
reasonably expected to have a Material Adverse Effect
on the Surviving Corporation after the Effective Time.
(c) Consents and Approvals. Each Party shall
have obtained any and all Consents required for
consummation of the Merger (other than those referred
to in Section 9.1(b) of this Agreement) or for the
preventing of any Default under any Contract or Permit
of such Party which, if not obtained or made, is
reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on such Party
after the Effective Time.
(d) Legal Proceedings. No court or governmental
or Regulatory Authority of competent jurisdiction shall
have enacted, issued, promulgated, enforced, or entered
any Law or Order (whether temporary, preliminary, or
permanent) which is then in effect which prohibits,
restrains, or makes illegal consummation of the
transactions contemplated by this Agreement.
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(e) Registration Statement. The Registration
Statement shall be effective under the 1933 Act, no stop
orders suspending the effectiveness of the Registration
Statement shall have been issued, no action, suit,
proceeding, or investigation by the SEC to suspend the
effectiveness thereof shall have been initiated and be
continuing.
(f) Tax Opinion. Regions and Xxxxxx shall have
received a written opinion from Xxxxxx & Bird LLP and
Wachtell, Lipton, Xxxxx & Xxxx, respectively, in a form
reasonably satisfactory to such Party (the "Tax Opinions"),
dated the date of the Effective Time, substantially to
the effect that, (i) the Merger will constitute a
reorganization within the meaning of Section 368(a) of
the Internal Revenue Code, (ii) no gain or loss will be
recognized by holders of Xxxxxx Common Stock who exchange
all of their Xxxxxx Common Stock solely for Regions Common
Stock pursuant to the Merger (except with respect to any
cash received in lieu of a fractional share interest in
Regions Common Stock), (iii) the tax basis of the Regions
Common Stock received (including fractional shares deemed
received and redeemed) by holders of Xxxxxx Common Stock
who exchange all of their Xxxxxx Common Stock solely for
Regions Common Stock in the Merger will be the same as the
tax basis of the Xxxxxx Common Stock surrendered in exchange
for the Regions Common Stock, and (iv) the holding period
of the Regions Common Stock received (including fractional
shares deemed received and redeemed) by holders who exchange
all of their Xxxxxx Common Stock solely for Regions Common
Stock in the Merger will be the same as the holding period
of the Xxxxxx Common Stock surrendered in exchange therefor,
provided that such Xxxxxx Common Stock is held as a capital
asset at the Effective Time. In rendering such Tax Opinions,
such counsel shall be entitled to rely upon representations
of officers of Xxxxxx and Regions reasonably satisfactory
in form and substance to such counsel.
9.2 Conditions to Obligations of Regions. The
obligations of Regions to perform this Agreement and
consummate the Merger and the other transactions contemplated
hereby are subject to the satisfaction of the following
conditions, unless waived by Regions pursuant to
Section 11.6(a) of this Agreement:
(a) Representations and Warranties. For purposes
of this Section 9.2(a), the accuracy of the representations
and warranties of Xxxxxx set forth in this Agreement shall
be assessed as of the date of this Agreement and as of the
Effective Time with the same effect as though all such
representations and warranties had been made on and as
of the Effective Time (provided that representations and
warranties which speak as of the date of this Agreement or
some other date shall speak only as of such date). The
representations and warranties of Xxxxxx set forth in
Sections 5.2(a) and 5.3 of this Agreement shall be true
and correct (except for inaccuracies which are de
minimis in amount). The representations and warranties
of Xxxxxx set forth in Sections 5.19, 5.21, and 5.22 of
this Agreement shall be true and correct in all material
respects. There shall not exist inaccuracies in the
representations and
warranties of Xxxxxx set forth in this Agreement (including
the representations and warranties set forth in
Sections 5.2(a), 5.3, 5.19, 5.21, and 5.22 of this
Agreement) such that the aggregate effect of such
inaccuracies has, or is reasonably likely to have,
a Material Adverse Effect on Xxxxxx; provided that,
for purposes of this sentence only, those representations
and warranties which are qualified by references to
"material," "Material Adverse Effect," or variations
thereof, or to the "Knowledge" of Xxxxxx or to a matter
being "known" by Xxxxxx shall be deemed not to include
such qualifications.
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(b) Performance of Agreements and Covenants.
Each and all of the agreements and covenants of Xxxxxx to
be performed and complied with pursuant to this Agreement
and the other agreements contemplated hereby prior to the
Effective Time shall have been duly performed and complied
with in all material respects.
(c) Certificates. Xxxxxx shall have delivered to
Regions (i) a certificate, dated as of the Effective Time and
signed on Xxxxxx'x behalf by its duly authorized officers, to
the effect that the conditions set forth in Sections 9.2(a)
and 9.2(b) of this Agreement have been satisfied, and (ii)
certified copies of resolutions duly adopted by (1) Xxxxxx'x
Board of Directors evidencing the taking of all corporate action
necessary to authorize the execution, delivery, and performance
of this Agreement, and the consummation of the transactions
contemplated hereby, and (2) Xxxxxx'x stockholders evidencing
the approval of this Agreement, all in such reasonable detail
as Regions and its counsel shall request.
9.3 Conditions to Obligations of Xxxxxx. The
obligations of Xxxxxx to perform this Agreement and
consummate the Merger and the other transactions contemplated
hereby are subject to the satisfaction of the following
conditions, unless waived by Xxxxxx pursuant to
Section 11.6(b) of this Agreement:
(a) Representations and Warranties. For purposes
of this Section 9.3(a), the accuracy of the representations
and warranties of Regions set forth in this Agreement shall
be assessed as of the date of this Agreement and as of the
Effective Time with the same effect as though all such
representations and warranties had been made on and as
of the Effective Time (provided that representations and
warranties which speak as of the date of this Agreement or
some other date shall speak only as of such date). The
representations and warranties of Regions set forth in
Sections 6.2(a) and 6.3 of this Agreement shall be true
and correct (except for inaccuracies which are de
minimis in amount). The representations and warranties
of Regions set forth in Sections 6.13, 6.15, and 6.16 of
this Agreement shall be true and correct in all material
respects. There shall not exist inaccuracies in the
representations and
warranties of Regions set forth in this Agreement
(including the representations and warranties set forth
in Sections 6.2(a), 6.3, 6.13, 6.15, and 6.16 of this
Agreement) such that the aggregate effect of such
inaccuracies has, or is reasonably likely to have,
a Material Adverse Effect on Regions; provided that,
for purposes of this sentence only, those representations
and warranties which are qualified by references to
"material," "Material Adverse Effect," or variations
thereof, or to the "Knowledge" of Regions or to a
matter being "known" by Regions shall be deemed not
to include such qualifications.
(b) Performance of Agreements and Covenants. Each
and all of the agreements and covenants of Regions to be
performed and complied with pursuant to this Agreement and
the other agreements contemplated hereby prior to the
Effective Time shall have been duly performed and complied
with in all material respects.
(c) Certificates. Regions shall have delivered
to Xxxxxx (i) a certificate, dated as of the Effective Time
and signed on Regions' behalf by its duly authorized officers,
to the effect that the conditions set forth in Sections 9.3(a)
and 9.3(b) of this Agreement have been satisfied,
and (ii) certified copies of resolutions duly adopted by
Regions' Board of Directors evidencing the taking of all
corporate action necessary to authorize the execution,
delivery, and performance of this Agreement, and the
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consummation of the transactions contemplated hereby, all
in such reasonable detail as Xxxxxx and its counsel shall
request.
ARTICLE 10
Termination
10.1 Termination. Notwithstanding any other
provision of this Agreement, and notwithstanding the approval
of this Agreement by the stockholders of Xxxxxx, this Agreement
may be terminated and the Merger abandoned at any time prior
to the Effective Time:
(a) By mutual consent of the Board of Directors of
Regions and the Board of Directors of Xxxxxx; or
(b) By the Board of Directors of either Party
(provided that the terminating Party is not then in breach
of any representation or warranty contained in this Agreement
under the applicable standard set forth in Section 9.2(a) of
this Agreement in the case of Xxxxxx and Section 9.3(a) of
this Agreement in the case of Regions or in material breach
of any covenant or other agreement contained in this Agreement)
in the event of an inaccuracy of any representation or
warranty of the other Party contained in this Agreement
which cannot be or has not been cured within 30 days after
the giving of written notice to the breaching Party of such
inaccuracy and which inaccuracy would provide the terminating
Party the ability to refuse to consummate the Merger under
the applicable standard set forth in Section 9.2(a) of this
Agreement in the case of Xxxxxx and Section 9.3(a) of this
Agreement in the case of Regions; or
(c) By the Board of Directors of either Party
(provided that the terminating Party is not then in breach
of any representation or warranty contained in this
Agreement under the applicable standard set forth in
Section 9.2(a) of this Agreement in the case of Xxxxxx
and Section 9.3(a) in the case of Regions or in material
breach of any covenant or other agreement contained in
this Agreement) in the event of a material breach by the
other Party of any covenant or agreement contained in this
Agreement which cannot be or has not been cured within 30
days after the giving of written notice to the breaching Party
of such breach; or
(d) By the Board of Directors of either Party in the
event (i) any Consent of any Regulatory Authority required
for consummation of the Merger and the other transactions
contemplated hereby shall have been denied by final
nonappealable action of such authority, or (ii) the stockholders
of Xxxxxx fail to vote their approval of this Agreement at the
Stockholders' Meeting where this Agreement was presented to
such stockholders for approval and voted upon; or
(e) By the Board of Directors of either Party in the
event that the Merger shall not have been consummated by
August 31, 2001, if the failure to consummate the
transactions contemplated hereby on or before such date
is not caused by any breach of this Agreement by the Party
electing to terminate pursuant to this Section 10.1(e).
10.2 Effect of Termination. In the event of the
termination and abandonment of this Agreement pursuant to
Section 10.1 of this Agreement, this Agreement shall become
void and have no effect, and none of Regions, Xxxxxx, any of
their respective Subsidiaries, or
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any of the officers or
directors of any of them, shall have any Liability of any
nature whatsoever hereunder or in conjunction with the
transactions contemplated hereby, except that (i) the
provisions of Section 8.5(b) of this Agreement, this Section
10.2, Section 10.3, and Article 11 of this Agreement
shall survive any such termination and
abandonment, and (ii) a termination of this Agreement
shall not relieve the breaching Party from Liability
for an uncured willful breach of a representation,
warranty, covenant, or agreement of such Party contained
in this Agreement. The Termination Fee Agreement shall be
governed by its terms as to its termination.
10.3 Non-Survival of Representations and Covenants.
The respective representations, warranties, obligations,
covenants, and agreements of the Parties shall not survive
the Effective Time, except for those covenants and agreements
which by their terms apply in whole or in part after the
Effective Time.
ARTICLE 11
Miscellaneous
11.1 Definitions. (a) Except as otherwise
provided herein, the capitalized terms set forth below
shall have the following meanings:
"Acquisition Proposal" with respect to a Party
shall mean any tender offer or exchange offer or any
proposal for a merger, acquisition of all of the stock
or assets of, or other business combination involving such
Party or any of its Subsidiaries or the acquisition of a
substantial equity interest in, or a substantial portion
of the assets of, such Party or any of its Subsidiaries.
"Affiliate" of a Person shall mean any other
Person directly, or indirectly through one or more
intermediaries, controlling, controlled by or under
common control with such Person.
"Agreement" shall mean this Agreement and Plan
of Merger, including the
Exhibits delivered pursuant hereto and incorporated
herein by reference.
"AMEX" shall mean this American Stock Exchange.
"Average Price" shall mean the average of the daily
volume weighted averages of the trading prices of Regions
Common Stock as reported on the Nasdaq NMS (as reported by
The Wall Street Journal or, if not reported thereby,
another authoritative source agreed to by Xxxxxx and Regions)
for the ten consecutive full trading days in which such shares
are traded on the Nasdaq NMS ending at the close of trading on
the second full trading day immediately preceding the Effective
Time. If the price of Regions Common Stock is adjusted at any
time following the first day of such period and prior to the
Effective Time by reason of any action by Regions of the nature
described in the second sentence of Section 3.2 of this Agreement,
then all prices preceding such adjustment shall themselves be
adjusted so as to be comparable with those following such adjustment.
"BHC Act" shall mean the federal Bank Holding Company
Act of 1956, as
amended.
"CBOE" shall mean the Chicago Board Options Exchange.
"CFTC" shall mean the Commodities Futures Trading Commission.
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"Confidentiality Agreement" shall mean that certain
Confidentiality Agreement, dated November 22, 2000, by and
between Xxxxxx and Regions.
"Consent" shall mean any consent, approval,
authorization, clearance, exemption, waiver, or similar
affirmation by any Person pursuant to any Contract, Law,
Order, or Permit.
"Contract" shall mean any written or oral agreement,
arrangement, commitment, contract, indenture, instrument,
lease, understanding, or undertaking of any kind or character
to which any Person is a party or that is binding on any
Person or its capital
stock, assets, or business.
"CSE" shall mean the Chicago Stock Exchange.
"Default" shall mean (i) any breach or violation
of or default under any Contract, Order, or Permit, (ii)
any occurrence of any event that with the passage of time
or the giving of notice or both would constitute a breach
or violation of or default under any Contract, Order, or
Permit, or (iii) any occurrence of any event that with or
without the passage of time or the giving of notice would
give rise to a right to terminate or revoke, change the
current terms of, or renegotiate, or to accelerate, increase,
or impose any Liability under, any Contract, Order, or
Permit, where, in any such event, such Default is reasonably
likely to have, individually or in the aggregate, a Material
Adverse Effect on a Party.
"Delaware Certificate of Merger" shall mean the
certificate of merger to be executed by Regions and filed
with the Secretary of State of the State of Delaware, relating
to the Merger as contemplated by Section 1.1 of this Agreement.
"DGCL" shall mean the Delaware General Corporation Law.
"Environmental Laws" shall mean all Laws relating to
pollution or protection of human health or the environment
(including ambient air, surface water, ground water, land
surface, or subsurface strata) and which are administered,
interpreted, or enforced by the United States Environmental
Protection Agency and state and local agencies with jurisdiction
over, and including common law in respect of, pollution or
protection of the environment, including the Comprehensive
Environmental Response Compensation and Liability Act, as
amended, 42 U.S.C. 9601 et seq. ("CERCLA"), the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. 6901
et seq.,
and other Laws relating to emissions, discharges, releases,
or threatened releases of any Hazardous Material, or otherwise
relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of any
Hazardous Material.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
"Exhibits" 1 through 3, inclusive, shall mean the
Exhibits so marked, copies of which are attached to this
Agreement. Such Exhibits are hereby incorporated by reference
herein and made a part hereof, and may be referred to in this
Agreement and any other related instrument or document without
being attached hereto.
"Fund Board" shall mean board of trustees or directors
of each Xxxxxx Investment Company.
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"GAAP" shall mean generally accepted accounting
principles, consistently applied during the periods involved.
"Hazardous Material" shall mean (i) any hazardous
substance, hazardous
material, hazardous waste, regulated substance, or toxic
substance (as those terms are defined by any applicable
Environmental Laws), and (ii) any chemicals, pollutants,
contaminants, petroleum, petroleum products that are or become
regulated under any applicable local, state, or federal Law
(and specifically shall include asbestos requiring abatement,
removal, or encapsulation pursuant to the requirements of
governmental authorities and any polychlorinated biphenyls).
"HSR Act" shall mean Section 7A of the Xxxxxxx Act,
as added by Title II of the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, and the rules and
regulations promulgated thereunder.
"Intellectual Property" shall mean copyrights,
patents, trademarks, service marks, service names, trade
names, applications therefor, technology rights and licenses,
computer software (including any source or object codes
therefor or documentation relating thereto), trade secrets,
franchises, know-how, inventions and other intellectual
property rights.
"Internal Revenue Code" shall mean the Internal
Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder.
"Investment Advisers Act" shall mean the Investment
Advisers Act of 1940, as amended, and the rules and
regulations promulgated thereunder.
"Investment Company" shall have the meaning set
forth in the Investment
Company Act.
"Investment Company Act" shall mean the Investment
Company Act of 1940, as amended, and the rules and regulations
promulgated thereunder.
"Knowledge" as used with respect to a Person
(including references to such Person being aware of a
particular matter) shall mean the personal knowledge of
the chairman, president, or chief financial officer of such Person.
"Law" shall mean any code, law, ordinance, regulation,
rule, or statute applicable to a Person or its assets,
Liabilities, or business, including those promulgated,
interpreted, or enforced by any Regulatory Authority.
"Liability" shall mean any direct or indirect,
primary or secondary, liability, indebtedness, obligation,
penalty, cost, or expense (including costs of investigation,
collection, and defense), claim, deficiency, or guaranty of
any type, whether accrued, absolute or contingent, liquidated
or unliquidated, matured or unmatured, or otherwise.
"Lien" shall mean any mortgage, pledge, reservation,
restriction (other than a restriction on transfers arising
under the Securities Laws), security interest, or claim, lien,
or encumbrance of any nature whatsoever of, on, or with respect
to any property or property interest, other than (i) Liens for
property Taxes not yet due and payable, and (ii) for depository
institution Subsidiaries of a Party, pledges to secure deposits,
and other Liens incurred in the ordinary course of the banking
business.
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"Litigation" shall mean any action, arbitration,
cause of action, claim, complaint, criminal prosecution,
demand letter, governmental or other examination or
investigation, hearing, inquiry, administrative or other
proceeding, or notice (written or oral) by any Person
alleging potential Liability, but shall not include regular,
periodic examinations of depository institutions and their
Affiliates by Regulatory Authorities.
"Material Adverse Effect" on a Party shall mean an
event, change, or occurrence which, individually or together
with any other event, change, or occurrence, has a material
adverse impact on (i) the financial condition, results of
operations, or business of such Party and its Subsidiaries,
taken as a whole, or (ii) the ability of such Party to
perform its obligations under this Agreement or to consummate
the Merger or the other transactions contemplated by this
Agreement, provided that "Material Adverse Effect" shall not
be deemed to include the impact of (a) changes in banking and
similar Laws of general applicability or interpretations
thereof by courts or governmental authorities, (b) changes
in GAAP or regulatory accounting principles generally applicable
to banks, investment banks, broker-dealers, and their holding
companies, (c) actions and omissions of a Party (or any of its
Subsidiaries) taken with the prior informed consent of the
other Party in contemplation of the transactions contemplated
hereby, (d) general economic or market conditions or the
securities industry in general, and (e) this Agreement or
the announcement thereof.
"Xxxxxx Common Stock" shall mean the $.625 par value
common stock of Xxxxxx.
"Xxxxxx Companies" shall mean, collectively, Xxxxxx
and all Xxxxxx
Subsidiaries.
"Xxxxxx Disclosure Memorandum" shall mean the
written information entitled "Xxxxxx Disclosure Memorandum"
delivered prior to the execution of this
Agreement to Regions describing in reasonable detail the
matters contained therein and, with respect to each
disclosure made therein, specifically referencing each
Section or subsection of this Agreement under which such
disclosure is being made. Information disclosed with respect
to one Section or subsection shall not be deemed to be
disclosed for any other Section or subsection of this
Agreement. The inclusion of any matter in this document
shall not be deemed an admission or otherwise to imply
that any such matter is material for purposes of this Agreement.
"Xxxxxx Financial Statements" shall mean (i) the
consolidated statements of condition (including related
notes and schedules, if any) of Xxxxxx as of October 31,
2000, and as of July 31, 2000, and 1999, and the related
statements of income, changes in stockholders' equity, and
cash flows (including related notes and schedules, if any)
for the three months ended October 31, 2000 and for each
of the three years ended July 31, 2000, 1999, and 1998,
as filed by Xxxxxx in SEC Documents, and (ii) the
consolidated statements of condition of Xxxxxx (including
related notes and schedules, if any) and related
statement of income, change in stockholders equity,
and cash flows (including related notes and schedules,
if any) included in SEC Documents filed with respect
to periods ended subsequent to October 31, 2000.
"Xxxxxx Stock Plans" shall mean the existing
stock option and other stock-based compensation plans
of Xxxxxx, including, without limitation, the stock
option plans and programs of any Persons acquired by
Xxxxxx or a Xxxxxx Subsidiary.
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"Xxxxxx Subsidiaries" shall mean the Subsidiaries
of Xxxxxx, which shall include the Xxxxxx Subsidiaries
described in Section 5.4 of this Agreement and any corporation,
bank, savings association, or other organization acquired
as a Subsidiary of Xxxxxx in the future and owned by Xxxxxx
at the Effective Time.
"MSRB" shall mean the Municipal Securities
Rulemaking Board.
"NASD" shall mean the National Association of
Securities Dealers, Inc.
"Nasdaq NMS" shall mean the National Market
System of The Nasdaq Stock
Market.
"1933 Act" shall mean the Securities Act of
1933, as amended, and the rules and regulations promulgated
thereunder.
"1934 Act" shall mean the Securities Exchange
Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
"NYFE" shall mean the New York Futures Exchange, Inc.
"NYSE" shall mean the New York Stock Exchange, Inc.
"Order" shall mean any administrative decision or
award, decree, injunction, judgment, order, quasi-judicial
decision or award, ruling, or writ of any federal, state,
local, or foreign or other court, arbitrator, mediator,
tribunal, administrative agency, or Regulatory Authority.
"Party" shall mean either Xxxxxx or Regions, and
"Parties" shall mean both Xxxxxx and Regions.
"Permit" shall mean any federal, state, local,
and foreign governmental approval, authorization,
certificate, easement, filing, franchise, license, or
permit from governmental authorities that are required
for the operation of a Party's respective businesses.
"Permitted Issuances" shall mean issuances of
Xxxxxx Common Stock pursuant to and in accordance
with (i) the Xxxxxx Deferred Compensation Plan, (ii) the
Xxxxxx 2000 Employee Stock Purchase Plan, (iii) the Xxxxxx
2000 Equity
Compensation Plan which, in the aggregate for the plans
described in clauses (ii) and (iii), are currently estimated
to be 640,000 shares of Xxxxxx Common Stock prior to the
Effective Time, or (iv) issuances of Rights or of Xxxxxx
Common Stock otherwise permitted by Regions.
"Person" shall mean a natural person or any legal,
commercial, or governmental entity, such as, but not limited
to, a corporation, general partnership, joint venture,
limited partnership, limited liability company, trust,
business association, group acting in concert, or any
person acting in a representative capacity.
"PHLX" shall mean the Philadelphia Stock Exchange, Inc.
"Proxy Statement" shall mean the proxy statement
used by Xxxxxx to solicit the approval of its stockholders
of the transactions contemplated by this Agreement, which
shall include the prospectus of Regions relating to the
issuance of the Regions Common Stock to holders of Xxxxxx
Common Stock.
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"reasonable efforts" shall mean the reasonable
best efforts of a Party, but shall not require any Party
to take any commercially unreasonable action.
"Regions Common Stock" shall mean the $.625 par
value common stock of
Regions.
"Regions Companies" shall mean, collectively,
Regions and all Regions
Subsidiaries.
"Regions Financial Statements" shall
mean (i) the consolidated statements of condition
(including related notes and schedules, if any) of
Regions as of September 30, 2000 and as of December
31, 1999 and 1998, and the related statements of income,
changes in stockholders' equity, and cash flows
(including related notes and schedules, if any) for the
nine months ended September 30, 2000 and for each of the
three years ended December 31, 1999, 1998, and 1997, as
filed by Regions in SEC Documents, and (ii) the consolidated
statements of condition of Regions (including related notes
and schedules, if any) and related statements of income,
changes in stockholders' equity, and cash flows (including
related notes and schedules, if any) included in SEC
Documents filed with respect to periods ended subsequent
to September 30, 2000.
"Regions Subsidiaries" shall mean the Subsidiaries
of Regions and any
corporation, bank, savings association, or other organization
acquired as a Subsidiary of Regions in the future and owned
by Regions at the Effective Time.
"Registration Statement" shall mean the Registration
Statement on Form S-4, or other appropriate form, including
any pre-effective or post-effective amendments or supplements
thereto, filed with the SEC by Regions under the 1933 Act
with respect to the shares of Regions Common Stock to be
issued to the stockholders of Xxxxxx in connection with the
transactions contemplated by this Agreement.
"Regulatory Authorities" shall mean, collectively,
the Federal Trade Commission, the United States Department
of Justice, the Board of the Governors of the Federal
Reserve System, the Office of the Comptroller of the
Currency, the Federal Deposit Insurance Corporation,
the Office of Thrift Supervision, the Internal Revenue
Service, all state regulatory agencies having jurisdiction
over the Parties and their respective Subsidiaries, the
NASD, the NYSE, and the SEC.
"Representative" shall mean any investment
banker, financial advisor, attorney, accountant,
consultant, or other representative of a Person.
"Rights" shall mean, with respect to any
Person, securities, or obligations convertible into
or exercisable for, or giving any Person any right to
subscribe for or acquire, or any options, calls, or
commitments relating to, or any stock appreciation
right or other instrument the value of which is determined
in whole or in part by reference to the market price or
value of, shares of capital stock of such Person.
"SEC" shall mean the United States Securities
and Exchange Commission.
"SEC Documents" shall mean all forms, proxy
statements, registration statements, reports, schedules,
and other documents filed, or required to be filed, by a
Party or any of its Subsidiaries with the SEC.
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"Securities Laws" shall mean the 1933 Act,
the 1934 Act, the Investment
Company Act, the Investment Advisers Act, the Trust
Indenture Act of 1939, as
amended, and the rules and regulations of any Regulatory
uthority promulgated
thereunder.
"SIA" shall mean the Securities Industry Association.
"SIPC" shall mean the Securities Investor Protection
Corporation.
"Stockholders' Meeting" shall mean the meeting of
the stockholders of Xxxxxx to be held pursuant to Section
8.1 of this Agreement, including any adjournment or
adjournments thereof.
"Subsidiaries" shall have the meaning assigned
in Rule 1-02(x) of Regulation S-X of the SEC; provided,
there shall not be included any such entity acquired through
foreclosure or any such entity the equity securities of
which are owned or controlled in a fiduciary capacity.
"Superior Proposal" means, with respect to Xxxxxx,
any written Acquisition Proposal made by a Person other
than Regions which is for (i) (a) a merger, reorganization,
consolidation, share exchange, business combination,
recapitalization, liquidation, dissolution, or similar
transaction involving Xxxxxx as a result of which either
(1) Xxxxxx'x stockholders prior to such transaction
(by virtue of their ownership of Xxxxxx'x shares) in the
aggregate cease to own at least 50% of the voting
securities of the entity surviving or resulting from
such transaction (or the ultimate parent entity thereof)
or (2) the individuals comprising the Board of Directors
of Xxxxxx prior to such transaction do not constitute
a majority of the board of directors of such ultimate
parent entity, (b) a sale, lease, exchange, transfer,
or other disposition of at least 50% of the assets of
Xxxxxx and its Subsidiaries, taken
as a whole, in a single transaction or a series of
related transactions, or (c) the acquisition, directly
or indirectly, by a Person of beneficial ownership of
25% or more of the common stock of Xxxxxx whether by
merger, consolidation, share exchange, business
combination, tender, or exchange offer or otherwise,
and (ii) which is otherwise on terms which the Board
of Directors of Xxxxxx in good faith concludes (after
consultation with its financial advisors and outside
counsel), taking into account, among other things,
all legal, financial, regulatory, and other aspects
of the proposal (including the impact of the Termination
Fee Agreement) and the Person making the proposal,
(a) would, if consummated, result in a transaction
that is more favorable to its stockholders (in their
capacities as stockholders), from a financial point of
view, than the transactions contemplated by this
Agreement, and (b) is reasonably capable of being completed.
"Support Agreement" shall mean the various
support agreements, each in
substantially the form of Exhibit 1.
"Surviving Corporation" shall mean Regions
as the surviving corporation resulting from the Merger.
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"Tax" or "Taxes" shall mean all federal,
state, local, and foreign taxes, levies, imposts, duties,
or other like assessments, including income, gross receipts,
excise, employment, sales, use, transfer, license, payroll,
franchise, severance, stamp, occupation, windfall profits,
environmental, federal highway use, commercial rent,
customs duties, capital stock, paid-up capital, profits,
withholding, Social Security, single business and
unemployment, disability, real property, personal
property, registration, ad valorem, value added,
alternative or add-on minimum, estimated, or other
tax of any kind whatsoever, imposed or required to be
withheld by the United States or any state, local, or
foreign government or subdivision or agency thereof,
including any related interest and penalties, or
additions thereto.
"Tax Return" shall mean any report, return,
information return, or other information required to be
supplied to a taxing authority in connection with Taxes,
including any return of an affiliated or combined or
unitary group that includes a Party or its Subsidiaries.
"Taxable Period" shall mean any period
prescribed by any governmental
authority, including the United States or any state,
local, or foreign government or subdivision or agency
thereof for which a Tax Return is required to be filed
or Tax is required to be paid.
"TBCA" shall mean the Tennessee Business
Corporation Act.
"Tennessee Articles of Merger" shall mean
the Articles of Merger executed by Regions and filed
with the Secretary of State of the State of Tennessee
relating to the Merger as contemplated by Section 1.1
of this Agreement.
"Termination Fee Agreement" shall mean that
certain termination fee agreement by and between Xxxxxx
and Regions substantially in the form of Exhibit 2.
(b) The terms set forth below shall have the
meanings ascribed thereto in the referenced sections:
AdviserSection 8.14
Aggregate Cash Amount Section 3.1(c)
Cash Election Shares Section 3.1(c)
Claim Section 8.11(a)
Client Section 5.25(a)
Closing Section 1.2
Continuing Employees Section 8.10
Covered Parties Section 8.11(b)
Current Forms Section 5.11(c)
Effective Time Section 1.3
Election Deadline Section 3.1(c)
Election Form Section 3.1(c)
Election Form Record Date Section 3.1(c)
Exchange Agent Section 3.1(b)
Exchange Fund Section 4.1(a)
Ratio Section 3.1(b)
Indemnified Parties Section 8.11(a)
Mailing Date Section 3.1(c)
Merger Section 1.1
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Merger Shares Section 3.1(b)
Xxxxxx Benefit Plans Section 5.14(a)
Xxxxxx Contracts Section 5.15(a)
Xxxxxx ERISA Affiliate Section 5.14(e)
Xxxxxx ERISA Plan Section 5.14(a)
Xxxxxx Insiders Section 8.12
Xxxxxx Investment Company Section 5.26(a)
Xxxxxx Pension Plan Section 5.14(a)
Xxxxxx Property Section 5.10(b)
Xxxxxx Rights Section 3.5(a)
Xxxxxx SEC Reports Section 5.5(a)
New Certificates Section 4.1(a)
No Election Shares Section 3.1(c)
Old Certificates Section 3.1(c)
Per Share Cash Consideration Section 3.1(c)
Regions SEC Reports Section 6.5(a)
Stock Designees Section 3.1(c)
Takeover Laws Section 5.21
Tax Opinions Section 9.1(f)
Treasury Shares Section 3.1(b)
(c) Any singular term in this Agreement
shall be deemed to include the plural, and any plural
term the singular. Whenever the words "include,"
"includes," or "including" are used in this Agreement,
they shall be deemed followed by the words "without
limitation."
11.2 Expenses. (a) Except as otherwise
provided in this Section 11.2, each of the Parties
shall bear and pay all direct costs and expenses
incurred by it or on its behalf in connection with
the transactions contemplated hereunder, including
filing, registration, and application fees, printing
fees, and fees and expenses of its own financial or
other consultants, investment bankers, accountants,
and counsel, except that Regions shall bear and pay
the filing fees payable in connection with the
Registration Statement and the
Proxy Statement and one half of the printing costs
incurred in connection with the printing of the
Registration Statement and the Proxy Statement.
(b) Nothing contained in this Section 11.2 shall
constitute or shall be deemed to constitute liquidated
damages for the willful breach by a Party of the terms
of this Agreement or otherwise limit the rights of the
nonbreaching Party.
11.3 Brokers and Finders. Except for Lazard
Frires & Co. LLC as to Xxxxxx and Xxxxxxx Xxxxx Xxxxxx
as to Regions, each of the Parties represents and warrants
that neither it nor any of its officers, directors,
employees, or Affiliates has employed any broker or
finder or incurred any Liability for any
advisory fees, investment bankers' fees, brokerage fees,
commissions, or finders' fees in connection with this
Agreement or the transactions contemplated hereby. In
the event of a claim by any broker or finder based
upon his, her, or its representing or being retained
by or allegedly representing or being retained by Xxxxxx
or Regions, each of Xxxxxx and Regions, as the case may
be, agrees
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to indemnify and hold the other Party harmless
of and from any Liability in respect of any such claim.
11.4 Entire Agreement. Except as otherwise
expressly provided herein, this Agreement (including
the Xxxxxx Disclosure Memorandum) constitutes the entire
agreement between the Parties with respect to the
transactions contemplated hereunder and supersedes all
prior arrangements or understandings with respect thereto,
written or oral, other than the Confidentiality Agreement,
which shall remain in effect. Nothing in this Agreement
expressed or implied, is intended to confer upon any
Person, other than the Parties or their respective
successors, any rights, remedies, obligations, or
liabilities under or by reason of this Agreement,
other than as provided in Section 8.13 of this Agreement.
11.5 Amendments. To the extent permitted by Law,
this Agreement may be amended by a subsequent writing signed
by each of the Parties upon the approval of the Boards of
Directors of each of the Parties, whether before or after
stockholder approval of this Agreement has been obtained;
provided, that the provisions of this Agreement relating
to the manner or basis in which shares of Xxxxxx Common Stock
will be exchanged for Regions Common Stock or cash shall
not be amended after the Stockholders' Meeting without the
requisite approval of the holders of the issued and
outstanding shares of Xxxxxx Common Stock entitled to vote thereon.
11.6 Waivers.
(a) Prior to or at the Effective Time, Regions,
acting through its
Board of Directors, chief executive officer, chief
financial officer, or other authorized officer, shall
have the right to waive any Default in the performance
of any term of this Agreement by Xxxxxx, to waive or
extend the time for the compliance or fulfillment by
Xxxxxx of any and all of its obligations under this Agreement,
and to waive any or all of the conditions precedent to the
obligations of Regions under this Agreement, except any
condition which, if not satisfied, would result in the
violation of any Law. No such waiver shall be effective
unless in writing signed by a duly authorized officer of
Regions except that any unfulfilled conditions shall be
deemed to have been waived at the Effective Time.
(b) Prior to or at the Effective Time, Xxxxxx, acting
through its Board of Directors, chief executive officer,
chief financial officer, or other authorized officer, shall
have the right to waive any Default in the performance of
any term of this Agreement by Regions, to waive or extend
the time for the compliance or fulfillment by Regions of any
and all of its obligations under this Agreement, and to waive
any or all of the conditions precedent to the obligations of
Xxxxxx under this Agreement, except any condition which, if
not
satisfied, would result in the violation of any Law. No such
waiver shall be effective unless in writing signed by a duly
authorized officer of Xxxxxx except that any unfulfilled
conditions shall be deemed to have been waived at the
Effective Time.
(c) The failure of any Party at any time or times to
require performance of any provision hereof shall in no
manner affect the right of such Party at a later time to
enforce the same or any other provision of this Agreement.
No waiver of any condition or of the breach of any term
contained in this Agreement in one or more instances shall
be deemed to be or construed as a further or continuing
waiver of such condition or breach or a waiver of any other
condition or of the breach of any other term of this Agreement.
11.7 Assignment. Except as expressly contemplated
hereby, neither this Agreement nor any of the rights,
interests, or obligations hereunder shall be assigned by
any Party hereto (whether by operation of Law or otherwise)
without the prior written consent of the other Party. Subject
to the preceding sentence, this Agreement will be binding upon,
inure
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to the benefit of, and be enforceable by the Parties
and their respective successors and
assigns.
11.8 Notices. All notices or other communications
which are required or permitted hereunder shall be in writing
and sufficient if delivered by hand, by facsimile transmission,
by registered or certified mail, postage pre-paid, or by
courier or overnight carrier, to the persons at the addresses
set forth below (or at such other address as may be provided
hereunder), and shall be deemed to have been delivered as
of the date so delivered:
Xxxxxx: Xxxxxx Xxxxxx, Inc.
Fifty Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Xx.
Chairman and Chief Executive Officer
Copy to Counsel: Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy Number: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Regions: Regions Financial Corporation
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
Vice Chairman and Executive
Financial Officer
Copy to Counsel: Regions Financial Corporation
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Xx.
General Counsel
11.9 Governing Law. This Agreement shall be
governed by and construed in accordance with the Laws
of the State of Delaware, without regard to any applicable
principles of conflicts of Laws, except to the extent that
the Laws of the State of Tennessee relate to the
consummation of the Merger.
11.10 Counterparts. This Agreement may be
executed in two or more counterparts, each of which
shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
11.11 Captions. The captions contained in this
Agreement are for reference purposes only and are not part
of this Agreement.
11.12 Interpretations. Neither this Agreement
nor any uncertainty or ambiguity herein shall be
construed or resolved against any Party, whether under
any rule of construction or otherwise. No Party to this
Agreement shall be considered the draftsman. The Parties
acknowledge and agree that this Agreement has been reviewed,
negotiated,
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and accepted by all Parties and their attorneys and shall
be construed and interpreted according to the ordinary
meaning of the words used so as fairly to accomplish the
purposes and intentions of the Parties.
11.13 Enforcement of Agreement. The Parties
hereto agree that irreparable damage would occur in the
event that any of the provisions of this Agreement was not
performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the
Parties shall be entitled to an injunction or injunctions
to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any
court of the
United States or any state having jurisdiction, this
being in addition to any other remedy to which they
are entitled at law or in equity.
11.14 Severability. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction
shall, as to that jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering
invalid or unenforceable the remaining terms and provisions
of this Agreement or affecting the validity or enforceability
of any of the terms or provisions of this Agreement in any
other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision
shall be interpreted to be only so broad as is enforceable.
IN WITNESS WHEREOF, each of the Parties has caused
this Agreement to be
executed on its behalf and its corporate seal to be
hereunto affixed and attested by officers thereunto as
of the day and year first above written.
ATTEST: XXXXXX XXXXXX, INC.
By: /s/ XXXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXX, XX.
--------------------------- ----------------------------------
Xxxxxx X. Xxxxxx Xxxxx X. Xxxxxx, Xx.
Secretary Chairman and Chief Executive Officer
[CORPORATE SEAL]
ATTEST: REGIONS FINANCIAL CORPORATION
By: /s/ XXXXXX X. XXXXXXXX, XX. By: /s/ XXXX X. XXXXX, XX.
----------------------------- ---------------------------------
Xxxxxx X. Xxxxxxxx, Xx. Xxxx X. Xxxxx, Xx.
Corporate Secretary Executive Officer
President and Chief
[CORPORATE SEAL]
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