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EXHIBIT 2.2
================================================================================
AGREEMENT AND PLAN OF MERGER
BETWEEN
HOME BANCSHARES, INC.
AND
TCBANCORP, INC.
================================================================================
DATED AS OF DECEMBER 3, 2004
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TABLE OF CONTENTS
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RECITALS...................................................................
1
DEFINITIONS................................................................
2
ARTICLE I.
MERGER..........................................................
8
1.1.
THE
MERGER......................................................
8
1.2.
DISSENTING
SHARES............................................... 8
1.3.
EFFECTIVE
DATE.................................................. 9
ARTICLE II.
CONSIDERATION..................................................
9
2.1. MERGER
CONSIDERATION............................................
9
2.2.
TRANSMITTAL AND
ALLOCATION PROCEDURES........................... 10
2.3.
SHAREHOLDER RIGHTS;
STOCK TRANSFERS............................. 12
2.4.
RESERVATION OF RIGHT
TO REVISE TRANSACTION...................... 12
2.5.
OPTIONS.........................................................
12
ARTICLE III. CONDUCT OF BUSINESS PENDING
CONSUMMATION...................... 13
ARTICLE IV. REPRESENTATIONS AND
WARRANTIES................................. 13
4.1.
TCB REPRESENTATIONS
AND WARRANTIES.............................. 13
4.2.
HBI REPRESENTATIONS
AND WARRANTIES.............................. 24
ARTICLE V.
COVENANTS.......................................................
34
5.1.
BEST
EFFORTS....................................................
34
5.2.
CORPORATE
ACTIONS............................................... 34
5.3.
SECURITIES LAW
COMPLIANCE....................................... 34
5.4.
PUBLICITY.......................................................
35
5.5.
ACCESS; INFORMATION;
CONFIDENTIALITY............................ 35
5.6.
SOLE AGREEMENT TO
SELL.......................................... 36
5.7.
HBI COMMON STOCK
ADJUSTMENTS.................................... 36
5.8.
NO RIGHTS
TRIGGERED............................................. 36
5.9.
REGULATORY
APPLICATIONS......................................... 36
5.10.
REGULATORY
DIVESTITURES......................................... 36
5.11.
DIRECTOR AND OFFICER
LIABILITY INSURANCE........................ 37
ARTICLE VI. CONDITIONS TO CONSUMMATION OF THE
MERGER....................... 37
6.1.
CONDITIONS TO EACH
PARTY'S OBLIGATIONS.......................... 37
6.2.
CONDITIONS TO
OBLIGATIONS OF HBI................................ 38
6.3.
CONDITIONS TO
OBLIGATIONS OF TCB................................ 40
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ARTICLE VII.
TERMINATION...................................................
41
7.1.
TERMINATION UPON
CERTAIN CONDITIONS............................. 41
7.2.
TERMINATION FOR
BREACH.......................................... 41
ARTICLE VIII. OTHER
MATTERS................................................
42
8.1.
SURVIVAL........................................................
42
8.2.
WAIVER;
AMENDMENT...............................................
42
8.3.
COUNTERPARTS....................................................
42
8.4.
GOVERNING
LAW................................................... 42
8.5.
EXPENSES........................................................
42
8.6.
CONFIDENTIALITY.................................................
42
8.7.
NOTICES.........................................................
42
8.8. TIME IS OF THE
ESSENCE.......................................... 43
8.9.
ASSIGNMENT......................................................
43
8.10.
BINDING
EFFECT..................................................
43
8.11.
SEVERABILITY....................................................
43
8.12.
ENTIRE UNDERSTANDING;
NO THIRD PARTY BENEFICIARIES.............. 43
8.13.
ENFORCEMENT
PROCEEDINGS......................................... 43
8.14.
BENEFIT
PLANS...................................................
44
8.15.
HEADINGS........................................................
44
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EXHIBITS
SCHEDULES OF TCB
SCHEDULES OF HBI
ii
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of the 3rd day of December,
2004
(this "Agreement" or "Plan"), is by and between HOME BANCSHARES,
INC. ("HBI"),
an Arkansas corporation, and TCBANCORP, INC. ("TCB"), an Arkansas
corporation.
RECITALS
(A)
TCB. TCB is a corporation duly organized and existing in good
standing
under the laws of the State of Arkansas, with its principal
executive offices
located in North Little Rock, Arkansas. TCB is a financial holding
company
subject to regulation by the Federal Reserve Board. As of the date
of this Plan,
TCB has 3,000,000 authorized shares of common stock, $0.01 par
value ("TCB
Common Stock"), of which 2,283,075 shares of TCB Common Stock are
issued and
outstanding (no other class of capital stock being authorized) and
3,340 shares
are set aside to be gifted to certain employees of TCB on December
31, 2004. As
of September 30, 2004, TCB had Capital of $61,441,430, divided into
common stock
of $22,831, capital surplus of $61,122,534, comprehensive
income/surplus of
$(1,782,107), and retained earnings of $2,078,172. As of the date
of this Plan,
options covering 61,350 shares of TCB Common Stock are issued and
outstanding as
provided in Section 2.5 herein.
(B)
TWIN CITY BANK. Twin City Bank ("Twin City") is an Arkansas state
bank
duly organized and existing in good standing under the laws of the
State of
Arkansas. As of the date of this Plan, Twin City has 17,000
authorized shares of
common stock, $10.00 par value per share ("Twin City Common Stock")
(no other
class of capital stock being authorized), of which 17,000 shares of
Twin City
Common Stock are issued and outstanding. All of the issued and
outstanding
shares of Twin City Common Stock are owned by TCB, the sole
shareholder of Twin
City.
(C)
HBI. HBI is a corporation duly organized and existing in good
standing
under the laws of the State of Arkansas, with its principal
executive offices
located in Conway, Arkansas. HBI is a financial holding company
subject to
regulation by the Federal Reserve Board. As of its unaudited
financial
statements for the period ended September 30, 2004, HBI had Capital
of
$107,178,288, divided into common stock of $266,250, preferred
stock of $21,341,
preferred treasury stock of $(20,130), accumulated other
comprehensive
income/surplus of $(481,807), capital surplus of $90,483,188, and
retained
earnings of $16,909,446. As of September 30, 2004, HBI has
5,000,000 authorized
shares of common stock, $0.10 par value per share ("HBI Common
Stock"), of which
2,662,495 shares are issued and outstanding. HBI has 5,500,000
authorized shares
of preferred stock, $0.01 par value, of which 2,500,000 shares of
Class A
Preferred Stock are authorized and 2,134,068 are issued and
outstanding, and
3,000,000 shares of Class B Preferred Stock are authorized, and
none are issued
and outstanding.
(D)
APPROVALS. At meetings of the respective Boards of Directors of TCB
and
HBI, each such Board has approved and authorized the execution of
this Plan in
counterparts.
In
consideration of their mutual promises and obligations, the
Parties
further agree as follows:
1
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DEFINITIONS
(A) DEFINITIONS.
Capitalized terms used in this Plan have the following
meanings:
"A.C.A." means the Arkansas Code Annotated, as amended.
"Affiliate" means, with respect to any Person, any other Person
that,
directly or indirectly, through one or more intermediaries,
Controls, is
Controlled by, or is under common Control with such Person.
"Allocation" means the allocation of Merger Consideration to
holders of
Eligible TCB Common Stock as Stock Consideration and/or Cash
Consideration,
pursuant to Section 2.2(B).
"Appraisal Laws" means A.C.A. Section 4-27-1301, et seq.
"Arkansas Resident" means:
(1) A corporation, partnership, trust or other form of business
organization which has a principal office within the State of
Arkansas on the
Effective Date of the Plan.
(2) An individual whose principal residence is in the State of
Arkansas on the Effective Date of the Plan.
(3) A corporation, partnership, trust or other form of business
organization which is organized for the specific purpose of
acquiring part of an
issue offered pursuant to this Plan, of which all of the beneficial
owners of
such organization are residents of the State of Arkansas on the
Effective Date
of the Plan.
"Business Day" means any day other than a Saturday, Sunday, or a
day on
which FSB is not open for business.
"Capital" means capital stock, surplus and retained earnings
determined in
accordance with GAAP. Unrealized gains or losses in investment
securities will
be included when determining Capital.
"Cash Consideration" has the meaning assigned to such term in
Section
2.1(B)(2).
"CFG
Merger" - see definition of Community Bank.
"Code" means the Internal Revenue Code of 1986 (as amended).
"Community Bank" means Community Bank of Cabot, Arkansas, acquired
by CB
Bancorp, Inc. in the merger of Community Financial Group, Inc. with
CB Bancorp,
Inc., effective as of January 6, 2004 (the "CFG Merger"). Community
Bank is a
wholly-owned
2
<PAGE>
subsidiary of CB Bancorp, Inc., an Arkansas corporation and
registered bank
holding company that is owned 80% by HBI and 20% by TCB.
"Compensation and Benefit Plans" means all bonus, deferred
compensation,
pension, retirement, profit-sharing, thrift savings, employee stock
ownership,
stock bonus, stock purchase, restricted stock and stock option
plans, all
employment or severance contracts, all medical, dental, health and
life
insurance plans, all other employee benefit plans, contracts or
arrangements and
any applicable "change of control" or similar provisions in any
plan, contract
or arrangement maintained or contributed to by a Party or any of
its
Subsidiaries for the benefit of employees, former employees,
directors, former
directors or their beneficiaries.
"Conditions" has the meaning assigned to such term in Section
2.1(C).
"Contract" has the meaning assigned to such term in Section
4.1(O).
"Control" with respect to any Person means the possession, directly
or
indirectly, of the power to direct or cause the direction of the
management and
policies of such Person, whether through the ownership of voting
interests, by
contract, or otherwise.
"Derivatives Contract" means an exchange-traded or over-the-counter
swap,
forward, future, option, cap, floor or collar financial contract or
any other
contract that (1) is not included on the balance sheet of the
Financial Reports
of TCB, and (2) is a derivative contract (including various
combinations
thereof).
"Disclosing Party" has the meaning assigned to such term in Section
5.5(A).
"Dissenting Share" means the shares of TCB Common Stock held by
those
shareholders ("Dissenting Shareholders") of TCB who have timely and
properly
exercised their dissenters' rights in accordance with the Appraisal
Laws.
"Effective Date" has the meaning assigned to such term in Section
1.3.
"Eligible TCB Common Stock" means shares of TCB Common Stock other
than
Exception Shares and Dissenting Shares.
"Elect" (or "Election") has the meaning assigned to such term in
Section
2.2(A)(1).
"Environmental Law" means (1) any federal, state, and/or local
law,
statute, ordinance, rule, regulation, code, license, permit,
authorization,
approval, consent, legal doctrine, order, judgment, decree,
injunction,
requirement or agreement with any governmental entity, relating to
(a) the
protection, preservation or restoration of the environment
(including air, water
vapor, surface water, groundwater, drinking water supply, surface
land,
subsurface land, plant and animal life or any other natural
resource) or to
human health or safety, or (b) the exposure to, or the use,
storage, recycling,
treatment, generation, transportation, processing, handling,
labeling,
production, release or disposal of Hazardous Material, in each case
as amended
and as now in effect, including the Federal Comprehensive
Environmental
Response, Compensation, and
3
<PAGE>
Liability Act of 1980, the Superfund Amendments and Reauthorization
Act, the
Federal Water Pollution Control Act of 1972, the Federal Clean Air
Act, the
Federal Clean Water Act, the Federal Resource Conservation and
Recovery Act of
1976 (including the Hazardous and Solid Waste Amendments thereto),
the Federal
Solid Waste Disposal and the Federal Toxic Substances Control Act,
and the
Federal Insecticide, Fungicide and Rodenticide Act, the Federal
Occupational
Safety and Health Act of 1970, and (2) any common law or equitable
doctrine
(including injunctive relief and tort doctrines such as negligence,
nuisance,
trespass and strict liability) that may impose Liability or
obligations for
injuries or damages due to, or threatened as a result of, the
presence of or
exposure to any Hazardous Material.
"ERISA" means the Employee Retirement Income Security Act of 1974
(as
amended).
"ERISA Affiliate" means any entity which is considered one employer
with
the applicable Party under Section 4001(a)(15) of ERISA or Section
414 of the
Code.
"ERISA Plans" means all employee benefit plans within the meaning
of
Section 3(3) of ERISA.
"Exception Shares" has the meaning ascribed to such term in Section
2.1(A).
"Exchange Agent" means FirsTrust Financial Services, Inc., an
Arkansas
corporation whose principal address is 2610 Cantrell Road, Little
Rock,
Arkansas, 72202.
"Expiration Date" has the meaning assigned to such term in
Section
2.2(A)(2).
"FDIC" means the Federal Deposit Insurance Corporation.
"Financial Reports" (1) as to TCB and HBI, means their respective
audited
consolidated balance sheets as of December 31, 2001, December 31,
2002, and
December 31, 2003 and the related statements of income, changes in
shareholders'
equity and cash flows for the fiscal years ended December 31, 2001,
December 31,
2002, and December 31, 2003, and their respective unaudited
consolidated balance
sheet as of the nine (9)-month period ended September 30, 2004 and
the related
statements of income, changes in shareholders' equity and cash
flows for the
(9)-month period ended September 30, 2004; (2) as to Twin City, FSB
and
Community Bank means their respective call reports for the fiscal
years ended
December 31, 2002 and December 31, 2003; and (3) all other
financial reports
filed or to be filed subsequent to December 31, 2003, in the form
filed with the
Federal Reserve Board, FDIC and the Arkansas State Bank
Department.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve
System.
"FSB" means First State Bank, the wholly-owned subsidiary bank of
HBI.
First State Bank is an Arkansas corporation with its principal
office in Conway,
Arkansas.
"Fraction" and "Fractional Share Consideration" have the meanings
assigned
to such terms in Section 2.1(B)(3).
4
<PAGE>
"GAAP" means generally accepted accounting principles consistently
applied.
"Governing Documents" means the articles of incorporation, charter,
and
bylaws of the subject entity, including all amendments thereto.
"Hazardous Material" means any substance presently listed,
defined,
designated or classified as hazardous, toxic, radioactive or
dangerous, or
otherwise regulated, under any Environmental Law, whether by type
or quantity,
including any oil or other petroleum product, toxic waste,
pollutant,
contaminant, hazardous substance, toxic substance, hazardous waste,
special
waste or petroleum or any derivative or by-product thereof, radon,
radioactive
material, asbestos, asbestos containing material, urea formaldehyde
foam
insulation, lead and polychlorinated biphenyl.
"HBI" means Home BancShares, Inc., an Arkansas corporation and
registered
financial holding company.
"HBI
Common Stock" has the meaning assigned to such term in paragraph
(C)
of the Recitals.
"HBI
Option" has the meaning assigned to such term in Section
2.5(A).
"HBI
Transaction" means: (1) a merger, consolidation or similar
transaction
involving HBI, where HBI is not the corporation surviving such
transaction or
where a change of Control of HBI is otherwise effected, (2) the
disposition, by
sale, lease, exchange or otherwise, of assets or deposits of HBI or
any of its
significant subsidiaries representing in either case 25% or more of
the
consolidated assets or deposits of HBI and its Subsidiaries, or (3)
the
issuance, sale or other disposition (including by way of merger,
consolidation,
share exchange or any similar transaction) of securities
representing 25% or
more of the voting power of HBI or any of its significant
subsidiaries other
than the issuance of HBI Common Stock upon the exercise of then
outstanding
options or the conversion of then outstanding convertible
securities of HBI.
"Insured Depository Institution" has the meaning given it in the
Federal
Deposit Insurance Act, as amended, and applicable regulations under
such
statute.
"Intellectual Property Rights" has the meaning given such term in
Section
4.1(L).
"Knowledge" (and "Know" or "Known") means the best knowledge of
the
Chairman, President, Chief Financial Officer, and Chief Lending
Officer of the
entity, after reasonable due diligence, inquiry, or
investigation.
"Liability" means any debts, liabilities, obligations and contracts
of the
Party, whether the same shall be matured or un-matured; whether
accrued,
absolute, contingent or otherwise.
"Loan/Fiduciary Property" means any property owned or Controlled by
the
applicable Party or any of its Subsidiaries or in which such Party
or any of its
Subsidiaries holds a security or other interest, and, where
required by the
context, includes any such property where the Party
5
<PAGE>
or any of its Subsidiaries constitutes the owner or operator of
such property,
but only with respect to such property.
"Mailing Date" has the meaning assigned to such term in Section
2.2.
"Material" means, with respect to any Party, an event, occurrence
or
circumstance (including (i) the making of any provisions for
possible loan and
lease losses, write-downs of other real estate owned and taxes, and
(ii) any
breach of a representation or warranty contained in this Plan by
such Party)
that (a) has or is reasonably likely to have a material adverse
effect on or
constitute a material adverse change in the financial condition,
results of
operations, business, future operations, or prospects of such Party
or, as
applicable, its Subsidiaries, or (b) would impair such Party's
ability to
perform its obligations under this Plan or the consummation of any
of the
transactions contemplated by this Plan. With respect to TCB, any
such event,
occurrence or circumstance that has been previously approved by HBI
shall not be
deemed material.
"Merger" means the merger of TCB with and into HBI, as described in
Section
1.1.
"Merger Consideration" means the HBI Common Stock and/or the
Cash
Consideration a holder of Eligible TCB Common Stock will receive
pursuant to
Article II.
"Multiemployer Plans" has the meaning assigned to such term in
Section
3(37) of ERISA.
"Participation Facility" means any facility in which the applicable
Party
or any of its Subsidiaries participates in the management and,
where required by
the context, includes the owner or operator of such facility.
"Party" means a party to
this Plan.
"Pension Plan" means an employee pension plan within the meaning of
Section
3(2) of ERISA, and which is intended to be qualified under Section
401(a) of the
Code.
"Person" means any individual, corporation (including any
non-profit
corporation), general or limited partnership, limited liability
company, joint
venture, estate, trust, association, organization, labor union,
governmental
body, or other entity.
"Plan" means this Agreement and Plan of Merger, together with all
Exhibits
and Schedules annexed hereto, which are hereby incorporated by
reference.
"Pre-Closing Review" and "Pre-Closing Review Period" have the
meanings
assigned to such terms in Section 6.2(H)(iii).
"Proxy Statement" has the meaning assigned to such term in Section
5.2(A).
"Qualified Arkansas Resident" has the meaning assigned to such term
in
Section 2.1(C)(2).
6
<PAGE>
"Receiving Party" has the meaning assigned to such term in Section
5.5(A).
"Regulatory Authorities" means federal or state governmental
agencies,
authorities or departments (1) charged with the supervision or
regulation of
depository institutions or (2) engaged in the insurance of
deposits.
"Rights" means securities or obligations convertible into or
exchangeable
for, or giving any Person any right to subscribe for or acquire, or
any options,
calls or commitments relating to, shares of capital stock.
"Rule 147" means Rule 147 promulgated under the Securities Act.
"Rule 147 Restrictions" has the meaning assigned to such term in
Section
2.1(C)(1).
"Securities Act" means the Securities Act of 1933, as amended,
together
with the rules and regulations promulgated under such statute.
"Stock Consideration" has the meaning assigned to such term in
Section
2.1(B)(1).
"Subsidiary" means, with respect to any entity, each partnership,
limited
liability company, or corporation the majority of the outstanding
partnership
interests, membership interests, capital stock or voting power of
which is (or
upon the exercise of all outstanding warrants, options and other
rights would
be) owned, directly or indirectly, at the time in question by such
entity.
"Surviving Corporation" has the meaning assigned to such term in
Section
1.1(A).
"Tax
Returns" means all reports and returns with respect to Taxes that
are
required to be filed by an applicable Party and its Subsidiaries,
including
consolidated federal income tax returns of the Party and its
Subsidiaries.
"Taxes" means federal, state, local or foreign income, gross
receipts,
windfall profits, severance, property, production, sales, use,
license, excise,
franchise, employment, withholding or similar taxes imposed on the
income,
properties or operations of the respective Party or its
Subsidiaries, together
with any interest, additions, or penalties with respect thereto and
any interest
in respect of such additions or penalties.
"TCB" means TCBancorp, Inc., an Arkansas Corporation and bank
holding
company.
"TCB
Common Stock" has the meaning assigned to such term in paragraph
(A)
of the Recitals.
"TCB
Option" has the meaning assigned to such term in Section
2.5(A).
"Termination Date" has the meaning assigned to such term in Section
5.1.
7
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"Transmittal Form" has the meaning assigned to such term in Section
2.2.
(B)
GENERAL INTERPRETATION. Except as otherwise expressly provided in
this
Plan or unless the context clearly requires otherwise, the terms
defined in this
Plan include the plural as well as the singular; the word
"including" means
including without limitation; the words "hereof," "herein,"
"hereunder," "in
this Plan" and other words of similar import refer to this Plan as
a whole and
not to any particular Article, Section or other subdivision; and
references in
this Plan to Articles, Sections, Schedules, and Exhibits refer to
Articles and
Sections of and Schedules and Exhibits to this Plan. Unless
otherwise stated,
references to Subsections refer to the Subsections of the Section
in which the
reference appears. All pronouns used in this Plan include the
masculine,
feminine and neuter gender, as the context requires. All accounting
terms used
in this Plan that are not expressly defined in this Plan have the
respective
meanings given to them in accordance with GAAP.
ARTICLE I. MERGER
1.1.
THE MERGER. Subject to the provisions of this Plan, on the
Effective
Date:
(A) SURVIVING CORPORATION. In accordance with the applicable
provisions of the Arkansas Business Corporation Act of 1987, A.C.A.
Section
4-27-101, et seq., TCB shall be merged with and into HBI pursuant
to the terms
and conditions of this Plan and pursuant to the Articles of Merger
substantially
in the form of EXHIBIT A. Upon consummation of the Merger, the
separate
existence of TCB shall cease and HBI shall continue as the
Surviving Corporation
(the "Surviving Corporation") under the corporate name it possesses
immediately
prior to the Effective Date.
(B) ARTICLES, BYLAWS, DIRECTORS, OFFICERS. The Governing Documents
of
the Surviving Corporation shall be those of HBI, as in effect
immediately prior
to the Merger becoming effective. The directors and officers of HBI
in office
immediately prior to the Merger becoming effective shall be the
directors and
officers of the Surviving Corporation, together with such
additional directors
and officers as may thereafter be elected, who shall hold office
until such time
as their successors are elected and qualified.
(C) EFFECT OF THE MERGER. On the Effective Date, the effect of
the
Merger shall be that (1) the title to all real estate and other
property owned
by TCB is vested in the Surviving Corporation and shall not revert
or be in any
way impaired by reason of the Merger; (2) the Surviving Corporation
shall be
liable for all Liabilities of TCB whether or not reflected or
reserved against
in the balance sheets, other financial statements, books of account
or records
of TCB in the same manner as if the Surviving Corporation had
itself incurred
such Liabilities or obligations; and (3) a proceeding pending by or
against TCB
may be continued as if the Merger had not taken place, or the
Surviving
Corporation may be substituted in place of TCB.
1.2.
DISSENTING SHARES. Notwithstanding anything to the contrary in
this
Plan, each Dissenting Share shall not be converted into a right to
receive the
Merger Consideration, but the holder of such Dissenting Share shall
be entitled
only to such rights as are granted by the
8
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Appraisal Laws, unless and until such holder shall have failed to
perfect or
shall have effectively withdrawn or lost the right to payment under
the
Appraisal Laws, in which case each such share shall be deemed to
have been
converted at the Effective Date into the right to receive the
Merger
Consideration. Each holder of Dissenting Shares who becomes
entitled to payment
for his TCB Common Stock pursuant to the provisions of the
Appraisal Laws shall
receive payment for such Dissenting Shares from HBI (but only after
the amount
thereof shall have been agreed upon or finally determined pursuant
to the
Appraisal Laws).
1.3.
EFFECTIVE DATE. Unless the Parties agree upon another date, the
"Effective Date" will be the tenth Business Day after the
fulfillment or waiver
of each condition precedent set forth in, and the granting of each
approval (and
expiration of any waiting period) required by, ARTICLE VI. If the
Merger is not
consummated in accordance with this Plan on or prior to the
Termination Date,
TCB or HBI may terminate this Plan in accordance with ARTICLE VII.
On the
Effective Date, Articles of Merger will be filed with the Secretary
of State of
the State of Arkansas in accordance with applicable law.
ARTICLE II. CONSIDERATION
2.1.
MERGER CONSIDERATION. At the Effective Date, without any action on
the
part of HBI, TCB, or the holder of any of the shares of common
stock of TCB, the
Merger shall be effected in accordance with the following
terms:
(A) EXCEPTION SHARES. All shares of TCB Common Stock owned directly
by
TCB (including treasury shares), HBI, or any of their Subsidiaries
(in each case
other than shares in trust accounts or in an another fiduciary
capacity, managed
accounts and the like or shares held in satisfaction of a debt
previously
contracted) (the "Exception Shares") shall be cancelled and retired
and shall
not represent capital stock of the Surviving Company and shall not
be exchanged
for Merger Consideration or any other consideration.
(B) METHOD OF PAYMENT. The total amount paid for the TCB Common
Stock
shall be divided between Stock Consideration and Cash
Consideration, and,
subject to the Conditions set forth in Section 2.1(C), shall be
paid by HBI to
holders of Eligible TCB Common Stock as follows:
(1) The portion of the Merger Consideration to be paid to
holders
of
Eligible TCB Common Stock who are Qualified Arkansas Residents is
.8081
shares of HBI Common Stock for each whole share of Eligible TCB
Common
Stock held by such Qualified Arkansas Resident as of the date
hereof (the
"Stock Consideration").
(2)
The portion of the Merger Consideration to be paid to the
holders of Eligible TCB Common Stock who are not Qualified
Arkansas
Residents or who, subject to Sections 2.1(C)(2) and 2.2(B), Elect
to
receive cash, is cash in an amount equal to $35.00 multiplied by
the
product of the number of shares of Eligible TCB Common Stock held
by such
non-Qualified Arkansas Resident times .8081 (the "Cash
Consideration"). No
interest shall be paid on any Cash Consideration.
(3)
Notwithstanding any other provision of this Plan, no
fractional
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<PAGE>
shares of HBI Common Stock and no certificates, scrip, or other
evidence of
ownership of fractional shares will be issued in the Merger. HBI
shall pay
to
each holder of Eligible TCB Common Stock who would otherwise be
entitled
to a
fractional or partial share of HBI Common Stock (the "Fraction")
an
amount of cash equal to $35.00 multiplied by the product of .8081
times the
Fraction (the "Fractional Share Consideration"). No such holder
shall be
entitled to dividends, interest, or any other rights in respect to
such
fractional shares and no interest shall be paid on the Fractional
Share
Consideration.
(C) CONDITIONS TO METHOD OF PAYMENT. The method of payment of
Merger
Consideration by HBI shall be subject to the following conditions
(the
"Conditions"):
(1) No HBI Common Stock shall be paid as Stock Consideration to
a
holder of Eligible TCB Common Stock unless such holder is a
Qualified
Arkansas Resident. A "Qualified Arkansas Resident" is a holder of
Eligible
TCB
Common Stock who, in the manner required by Section 2.2, represents
and
warrants to HBI (1) that such holder is an Arkansas resident, (2)
that such
holder is aware of the requirements of Rule 147 promulgated under
the
Securities Act concerning restrictions on transferability of the
HBI Common
Stock received as Stock Consideration (the "Rule 147
Restrictions"), and
(3)
agrees to Rule 147 Restrictions.
(2) The total Cash consideration shall not exceed forty-nine
percent (49%) of the total Merger Consideration. A holder of
Eligible TCB
Common Stock who Elects to receive Cash Consideration who is a
Qualified
Arkansas Resident, may, as a result of the Allocation procedures in
Section
2.2(B), receive Stock Consideration.
(D) NON-PERFECTING DISSENTERS. If, at or prior to the Effective
Date,
any Dissenting Shareholder shall effectively withdraw or lose
(through failure
to perfect or otherwise) his right to such payment, such holder's
shares of TCB
Common Stock shall be converted into a right to receive Merger
Consideration in
accordance with the applicable provisions of this Plan. If such
holder shall
effectively withdraw or lose (through failure to perfect or
otherwise) his right
to such payment after the Effective Date, each of such holder's
shares of TCB
Common Stock shall be converted on a share-by-share basis into the
right to
receive the Cash Consideration.
2.2.
TRANSMITTAL AND ALLOCATION PROCEDURES.
(A) TRANSMITTAL PROCEDURES.
(1) A form (the "Transmittal Form") shall be mailed (the
"Mailing
Date") as soon as reasonably practicable after the Effective Date
to each
holder of Eligible TCB Common Stock of record as of the Effective
Date. The
Transmittal Form shall contain applicable instructions on
transmittal of
the
holder's Eligible TCB Common Stock and shall request a holder
of
Eligible TCB Common Stock to (a) elect ("Elect") to receive
Cash
Consideration or Stock Consideration, (b) evidence that they are or
are not
Arkansas Residents, and (c) evidence that they are aware of and
agree to
the
Rule 147 Restrictions. A holder's Election made on the Transmittal
Form
is
subject to the
10
<PAGE>
Conditions set forth in Section 2.1(C) and, subject to the
Allocation made
by
the Exchange Agent, as set forth in 2.2(B).
(2) Each holder of Eligible TCB Common Stock shall submit the
Transmittal Form, properly completed and signed, together with one
or more
certificates, (or such affidavits and indemnification satisfactory
to the
Exchange Agent regarding the loss or destruction of such
certificates)
representing all Eligible TCB Common Stock covered by such
Transmittal
Form, together with all other applicable transmittal materials,
within
thirty (30) days of the Mailing Date (the "Expiration Date").
Once
submitted, the Transmittal Form is irrevocable. Neither HBI nor
the
Exchange Agent shall be under any obligation to notify any person
of any
defect in a Transmittal Form. No interest will be paid on the
Cash
Consideration or any such fractional shares checks or dividends to
which
the
holder of any surrendered shares shall be entitled to receive upon
such
delivery.
(3) Any holder of Eligible TCB Common Stock who does not submit
an
effective, properly completed Transmittal Form to the Exchange
Agent by
the
Expiration Date shall receive only the Cash Consideration for
their
shares of Eligible TCB Common Stock upon surrender of the
certificates of
TCB
Common Stock in the manner required by the Exchange Agent. Any
Merger
Consideration into which shares of such shareholder's TCB Common
Stock are
converted on the Effective Date, any fractional share checks that
such
shareholder shall be entitled to receive and any dividends paid on
such
shares of HBI Common Stock for which the record date for
determination of
shareholders entitled to such dividends is on or after the
Effective Date,
will
be delivered to such shareholder only upon delivery to the
Exchange
Agent of the effective, properly completed Transmittal Form
accompanied by
the
certificates representing all of such shares of Eligible TCB
Common
Stock (or indemnity satisfactory to the Exchange Agent, in its
judgment, if
any
of such certificates are lost, stolen or destroyed).
(B) ALLOCATION PROCEDURES.
(1) As soon as reasonably practicable after the Expiration
Date,
the
Exchange Agent shall determine the number of shares of Eligible
TCB
Common Stock held by Qualified Arkansas Residents, the number of
other
shares of Eligible TCB Common Stock, and the number of shares of
Qualified
Arkansas Residents who requested Cash Consideration as their
Merger
Consideration.
(2) Based on that determination, HBI shall cause the Exchange
Agent to allocate (the "Allocation") the Merger Consideration among
the
holders of Eligible TCB Common Stock pursuant to the following
procedures:
(a) All Qualified Arkansas Residents who do not Elect to
receive Cash Consideration shall receive the Stock
Consideration.
(b) If, after giving effect to the shares of Eligible TCB
Common Stock owned by holders who are not Qualified Arkansas
Residents
and
11
<PAGE>
the shares owned by holders who are Qualified Arkansas Residents
and
Elected to receive Cash Consideration, the amount of Cash
Consideration to be paid as part of the Merger Consideration
and
payments of cash as Fractional Share Consideration exceeds 49%,
then
the Exchange Agent shall pay the Cash Consideration to holders who
are
Qualified Arkansas Residents and who elected Cash Consideration, on
a
pro rata basis.
(c) A Qualified Arkansas Resident who Elected to receive Cash
Consideration but whose Cash Consideration was pro rated, as set
forth
in the preceding paragraph, will receive the balance of such
holder's
Merger Consideration as Stock Consideration.
2.3.
SHAREHOLDER RIGHTS; STOCK TRANSFERS. Except with respect to the
rights
of a Dissenting Shareholder who perfects those rights under the
Appraisal Laws,
on the Effective Date, holders of TCB Common Stock shall cease to
be, and shall
have no rights as, shareholders of TCB, other than to receive the
Merger
Consideration provided under this ARTICLE II. After the Effective
Date, there
shall be no transfers on the stock transfer books of TCB or the
Surviving
Corporation of the shares of TCB Common Stock that were issued and
outstanding
immediately prior to the Effective Date.
2.4.
RESERVATION OF RIGHT TO REVISE TRANSACTION. In its sole
discretion,
and notwithstanding any other provision in this Plan to the
contrary, HBI may at
any time change the method of effecting its acquisition of TCB
including
offering the HBI Common Stock pursuant to a registration statement
filed with
the Securities and Exchange Commission; provided, however, that (A)
no such
change shall reduce the amount of the Total Merger Consideration
provided in
Section 2.1(B) or change the kind of consideration to be generally
issued to
holders of TCB Common Stock as provided for in this Plan; (B) such
change shall
not result in the tax opinion required by Section 6.1(E) not being
rendered, and
(C) no delay caused by such a change shall be the basis upon which
HBI
terminates this Plan pursuant to Section 7.1(C). If HBI elects to
change the
method of acquisition, TCB will cooperate with and assist HBI with
any necessary
amendment to this Plan, and with the preparation and filing of
such
applications, documents, instruments and notices as may be
necessary or
desirable, in the opinion of counsel for HBI, to obtain all
necessary
shareholder approvals and approvals of any regulatory agency,
administrative
body or other governmental entity.
2.5.
OPTIONS. On the Effective Date, by virtue of the Merger and
without
any action on the part of any holder of an option, each outstanding
option
granted by TCB to purchase shares of TCB Common Stock ("TCB
Option") that is
then outstanding and unexercised shall immediately and
automatically be fully
vested and converted into and become an option to purchase HBI
Common Stock
("HBI Option") on the same terms and conditions as are in effect
with respect to
TCB Option immediately prior to the Effective Date, except that (A)
each such
HBI Option may be exercised solely for shares of HBI Common Stock,
(B) the
number of shares of HBI Common Stock subject to such HBI Option
shall be equal
to the number of shares of TCB Common Stock subject to such TCB
Option
immediately prior to the Effective Date multiplied by .8081, the
product being
rounded, if necessary, up or down to the nearest whole share, and
(C) the per
share exercise price under each such HBI Option shall be
12
<PAGE>
adjusted by dividing the per share exercise price of TCB Option by
.8081, and
rounding up or down to the nearest cent. The number of shares of
TCB Common
Stock that are issuable upon exercise of TCB Options as of the date
of this Plan
and the names of the holders of TCB Options are disclosed in
Schedule 2.5.
ARTICLE III. CONDUCT OF BUSINESS PENDING CONSUMMATION
Unless HBI otherwise agrees in writing between the date of this
Agreement
and the Effective Date, TCB shall, and shall cause each of its
Subsidiaries to,
conduct their respective business in the ordinary and usual course
consistent
with past practice and not issue any additional shares of capital
stock (except
upon the exercise of outstanding TCB Options) and shall use its
commercially
reasonable best efforts to maintain and preserve their respective
business
organizations, employees and advantageous business relationships
and retain the
services of their officers and key employees identified by HBI.
Unless TCB otherwise agrees in writing, between the date of this
Agreement
and the Effective Date, HBI shall, and shall cause each of its
Subsidiaries to
conduct their respective business in the ordinary and usual course
of business
consistent with past practice (except that nothing contained in
this Article III
shall prohibit HBI from entering into acquisition or merger
agreements in which
HBI or an Affiliated corporation is the surviving corporation) and
not issue any
additional shares of capital stock (except in connection with such
acquisitions
or mergers or in connections with the grant of options, whether or
not presently
outstanding provided that any grant or grants of new options shall
not exceed
30,000 shares of HBI Common Stock in the aggregate) and shall use
its
commercially reasonable best efforts to maintain and preserve their
respective
business organizations, employees and advantageous business
relationships and
retain the services of their officers and key employees identified
by TCB.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
4.1. TCB
REPRESENTATIONS AND WARRANTIES. TCB hereby represents and
warrants
to HBI, now and as of the Effective Date, as follows:
(A) RECITALS. The facts set forth in the recitals of this plan
with
respect to TCB and its Subsidiaries are true and correct.
(B) ORGANIZATION, STANDING AND AUTHORITY. Each of TCB, Twin City,
and
any other Subsidiary of TCB is in good standing under the laws of
the
jurisdiction in which it is incorporated or organized and is duly
qualified to
do business in the States of the United States and foreign
jurisdictions where
the failure to be duly qualified, individually or in the aggregate,
is
reasonably likely to have a Material effect on it. All of such
jurisdictions are
set forth on Schedule 4.1(B). Each of TCB and Twin City, and any
other
Subsidiary of TCB has in effect all federal, state, local and
foreign
governmental authorizations necessary for it to own or lease its
properties and
assets and to carry on its business as it is now conducted. Twin
City is the
only Subsidiary of TCB that is an Insured Depository Institution,
and its
deposits are insured by the Bank Insurance Fund of the FDIC. Except
as disclosed
in Schedule 4.1(B), Twin City is not subject to any orders,
resolutions,
commitments, agreements,
13
<PAGE>
undertakings, understandings, or consents that affect its status as
such Insured
Depository Institution.
(C) SHARES. The outstanding shares of TCB and its Subsidiaries'
capital stock are validly issued and outstanding, fully paid and
non-assessable,
and subject to no preemptive rights. Except as disclosed in
Schedule 4.1(C),
there are no shares of capital stock or other equity securities of
TCB or its
Subsidiaries outstanding and no outstanding Rights with respect
thereto.
(D) TCB SUBSIDIARIES. TCB has disclosed in Schedule 4.1(D) a list
of
all of its Subsidiaries, and the number of authorized, issued, and
outstanding
shares of each class of stock and the percentages of ownership of
TCB or a TCB
Subsidiary. No equity securities of any of its Subsidiaries are or
may become
required to be issued (other than to TCB or one of its
Subsidiaries) by reason
of any Rights with respect thereto. There are no Contracts,
commitments,
understandings or arrangements by which any of its Subsidiaries is
or may be
bound to sell or otherwise issue any shares of such Subsidiary's
capital stock,
and there are no Contracts, commitments, understandings or
arrangements relating
to the rights of TCB or its Subsidiaries, as applicable, to vote or
to dispose
of such shares. All of the shares of capital stock of each of its
Subsidiaries
held by TCB or one of its Subsidiaries are fully paid and
non-assessable and are
owned by TCB or one of its Subsidiaries free and clear of any
charge, mortgage,
pledge, security interest, restriction, claim, lien or encumbrance.
Except as
disclosed in Schedule 4.1(D), TCB does not own beneficially,
directly or
indirectly, any shares of any equity securities or similar
interests of any
corporation, bank, partnership, joint venture, business trust,
association or
other organization.
(E) CORPORATE POWER. Each of TCB and its Subsidiaries has the
corporate power and authority to carry on its business as it is now
being
conducted and to own all its Material properties and assets.
(F) CORPORATE AUTHORITY. Subject to any necessary receipt of
approval
by its shareholders referred to in Section 6.1 and required
regulatory
approvals, this Plan has been authorized by all necessary corporate
action of
TCB and this Plan is a valid and binding agreement of TCB,
enforceable against
TCB in accordance with its terms, subject to bankruptcy, insolvency
and other
laws of general applicability relating to or affecting creditors'
rights and to
general equity principles.
(G) NO DEFAULTS. Subject to the approval by its shareholders
referred
to in Section 6.1, the required regulatory approvals referred to in
Section 6.1,
and the required filings under federal and state securities laws,
and except as
disclosed in Schedule 4.1(G), the execution, delivery and
performance of this
Plan and the consummation by TCB do not and will not Materially (1)
constitute a
breach of, or violation of, or a default under, any law, rule or
regulation or
any judgment, decree, order, governmental permit or license, or
agreement,
indenture or instrument of TCB or of any of its Subsidiaries or to
which TCB or
any of its Subsidiaries or its or their properties is subject or
bound, or (2)
constitute a breach of, or violation of, or a default under, the
Governing
Documents of it or any of its Subsidiaries, or (3) require any
consent or
approval under any such law, rule, regulation, judgment, decree,
order,
14
<PAGE>
governmental permit or license or the consent or approval of any
other party to
any such agreement, indenture or instrument.
(H) TCB FINANCIAL REPORTS. Except as disclosed in Schedule 4.1(H):
(a)
the Financial Reports of each of TCB and Twin City did not and will
not contain
any untrue statement of a Material fact or omit to state a Material
fact
required to be stated therein or necessary to make the statements
made therein,
in light of the circumstances under which they were made, not
misleading; (b)
each of the balance sheets in or incorporated by reference into the
Financial
Reports (including the related notes and schedules thereto) are
correct,
complete, and in accordance with the books and records of and
fairly presents
and will fairly present the financial position of the entity or
entities to
which it relates as of its date; (c) each of the statements of
income and
changes in shareholders' equity and cash flows or equivalent
statements in the
Financial Reports of Twin City (including any related notes and
schedules
thereto) are correct, complete, and in accordance with the books
and records of
and fairly presents and will fairly present the results of
operations, changes
in shareholders' equity and cash flows, as the case may be, of the
entity or
entities to which it relates for the periods set forth therein; and
(d) in each
case in accordance with GAAP during the periods involved, except in
each case as
may be noted therein, subject to normal and recurring year-end
audit adjustments
in the case of unaudited statements.
(I) ABSENCE OF UNDISCLOSED LIABILITIES. To TCB's Knowledge, neither
it
nor any of its Subsidiaries has any Material Liability, except (1)
as disclosed
on Schedule 4.1(I), (2) as reflected in its Financial Reports prior
to the date
of this Plan, or (3) for commitments and obligations made, or
Liabilities
incurred, in the ordinary and usual course of business consistent
with past
practice since September 30, 2004, and which are fully reflected as
liabilities
on that entity's books and records. Except as disclosed on Schedule
4.1(I),
since September 30, 2004, neither TCB nor any of its Subsidiaries
has incurred
or paid any Material Liability (including any Liability incurred in
connection
with any acquisitions in which any form of direct financial
assistance of the
federal government or any agency thereof has been provided to any
Subsidiary).
(J) NO EVENTS. Except as disclosed on Schedule 4.1(J), since
September
30, 2004, no event has occurred that, individually or in the
aggregate, is
reasonably likely to have a Material effect on TCB or any of its
Subsidiaries.
(K) PROPERTIES. Except as disclosed in Schedule 4.1(K), TCB and
each
of its Subsidiaries have good and marketable title, free and clear
of all liens,
encumbrances, charges, defaults, or equities of any character, to
all of the
properties and assets, tangible and intangible, reflected in the
Financial
Reports of TCB as being owned by TCB or its Subsidiaries as of the
dates
thereof. All buildings and all Material fixtures, equipment, and
other property
and assets that are held under leases or subleases by TCB or any of
its
Subsidiaries are held under valid leases or subleases enforceable
in accordance
with their respective terms, other than any such exceptions to
validity or
enforceability as are disclosed on Schedule 4.1(K). Other than
month-to-month
leases on operating equipment, all leases and subleases are
identified on
Schedule 4.1(K), and except as disclosed on such schedule, are
fully
transferrable to HBI as the Surviving Corporation under this Plan.
TCB further
represents, covenants and warrants that,
15
<PAGE>
except as disclosed in Schedule 4.1(K), taking their age and
ordinary wear and
tear into account, the assets and properties of TCB or any of its
Subsidiaries
are in good operating condition and repair and have been operated
and maintained
in the ordinary and usual course of business, consistent with past
practice,
other than those items of personal property not in use by TCB or
its
Subsidiaries as of the date hereof.
(L) INTELLECTUAL PROPERTY RIGHTS. Schedule 4.1(L) lists all
patents,
patent rights, licenses, trade secrets, trademarks, service marks,
trademark
rights, trade names or trade name rights, copyrights, inventions
and other
intellectual property rights ("Intellectual Property Rights")
necessary for the
ownership and operation of the business of TCB or any of its
Subsidiaries in the
manner in which the business has been historically and currently
owned and
operated by TCB or its Subsidiaries. To TCB's Knowledge, none of
the
Intellectual Property Rights interferes with, infringes upon,
misappropriates,
or violates any intellectual property rights of third parties, and
neither TCB
nor any of its Subsidiaries has received any written charge,
complaint, claim,
demand, or notice alleging any such interference, infringement,
misappropriation, or violation. To TCB's Knowledge, no third party
has
interfered with, infringed upon, misappropriated, or violated any
of the
Intellectual Property Rights. Neither TCB nor any of its
Subsidiaries has
received any written notice with respect to any outstanding
injunction,
judgment, order, decree, ruling, or charge relating to any item of
the
Intellectual Property Rights, and no action, suit, proceeding,
hearing,
investigation, charge, complaint, claim, or demand is pending or,
to the
Knowledge of TCB or any of its Subsidiaries, is threatened which
challenges the
legality, validity, enforceability, use, or ownership of any of the
Intellectual
Property Rights.
(M) LITIGATION; REGULATORY ACTION. Except as disclosed in
Schedule
4.1(M) and except for foreclosures or collection matters initiated
by TCB or its
Subsidiaries in the ordinary and usual course of business, no
litigation,
proceeding or controversy before any court or governmental agency
is pending or,
to TCB's Knowledge, threatened against TCB or any of its
Subsidiaries,
including, without limitation, any litigation, proceedings, or
controversies
that allege claims under any fair lending law or other law relating
to
discrimination, including the Equal Credit Opportunity Act, the
Fair Housing
Act, the Community Reinvestment Act and the Home Mortgage
Disclosure Act, or
allege claims under any fair credit reporting laws or laws for the
protection of
non-public personal information, including the Fair Credit
Reporting Act, the
Gramm-Leach-Bliley Act, and the Fair and Accurate Credit
Transaction Act and, to
its Knowledge, no such litigation, proceeding or controversy has
been, to TCB's
Knowledge, threatened; and except as disclosed in Schedule 4.1(M),
neither TCB
nor any of its Subsidiaries or any of its or their Material
properties or their
officers, directors or Controlling persons is a party to or is
subject to any
order, decree, agreement, memorandum of understanding or similar
arrangement
with, or a commitment letter or similar submission to, any
Regulatory Authority
or other governmental authority, and neither TCB nor any of its
Subsidiaries has
been advised by any of such Regulatory Authorities or other
governmental
authority that such authority is contemplating issuing or
requesting (or is
considering the appropriateness of issuing or requesting) any such
order,
decree, agreement, memorandum or understanding, commitment letter
or similar
submission.
16
<PAGE>
(N) COMPLIANCE WITH LAWS. Except as disclosed in Schedule 4.1(N),
each
of TCB and its Subsidiaries:
(1) has all permits, licenses, authorizations, orders and
approvals of, and has made all filings, applications and
registrations
with, all Regulatory Authorities or other governmental authority
that are
required in order to permit it to own its businesses presently
conducted
and
that are Material to the business of it and its Subsidiaries taken
as a
whole; all such permits, licenses, certificates of authority,
orders and
approvals are in full force and effect and, to its Knowledge, no
suspension
or
cancellation of any of them is threatened; and all such
filings,
applications and registrations are current;
(2) has received no notification or communication from any
Regulatory Authority or other governmental authority or the staff
thereof
(a)
asserting that TCB or any of its Subsidiaries is not in compliance
with
any
of the statutes, regulations or ordinances which such
Regulatory
Authority or governmental authority enforces, (b) threatening to
revoke any
license, franchise, permit or governmental authorization of TCB or
any of
its
Subsidiaries, or (c) requiring any of TCB any of its Subsidiaries
(or
any
of its or their officers, directors or Controlling persons) to
enter
into
a cease and desist order, agreement or memorandum of understanding
(or
requiring the board of directors thereof to adopt any resolution
or
policy);
(3) is not required to give prior notice to any federal banking
or
thrift agency of the proposed addition of an individual to its
board of
directors or the employment of an individual as a senior executive;
and
(4) is in compliance in all Material respects with all fair
lending laws or other laws relating to discrimination, including
the Equal
Credit Opportunity Act, the Fair Housing Act, the Community
Reinvestment
Act
and the Home Mortgage Disclosure Act, and all fair credit
reporting
laws
and laws for the protection of non-public personal information,
including the Fair Credit Reporting Act, the Gramm-Leach-Bliley
Act, and
the
Fair and Accurate Credit Transaction Act.
(O) MATERIAL CONTRACTS. Except as disclosed in Schedule 4.1(O)
(and
with a true and complete copy of the document or other item in
question attached
to such schedule), none of TCB or its Subsidiaries, nor any of
their respective
assets, businesses or operations, is a party to, or is bound or
affected by, or
receives benefits under, any Contract or amendment thereto by which
its
respective assets, business or operations may be bound or affected
or under
which it or any of its respective assets, business or operations
receives
benefits (excluding extensions of credit made in the ordinary and
usual course
of business) or Contracts (other than lease Contracts) obligating
it or them to
pay more than $20,000 in any year and lease Contracts obligating it
or them to
pay more than $100,000 in any year and which can be terminated upon
not less
than 60 day's notice. Except as disclosed in Schedule 4.1(O), to
TCB's
Knowledge, neither TCB nor any of its Subsidiaries is in default
under any such
Contract, and there has not occurred any event that, with the lapse
of time or
the giving of notice or both, would constitute such a default.
Except as
disclosed in Schedule 4.1(O), neither TCB nor any of its
Subsidiaries is subject
to or bound by any Contract containing covenants that limit the
ability of TCB
or any of its Subsidiaries to compete in any line of business or
with any Person
or that
17
<PAGE>
involve any restriction of geographical area in which, or method by
which, TCB
or any of its Subsidiaries may carry on its business (other than as
may be
required by law or any applicable Regulatory Authority).
(P) REPORTS. Since January 1, 2001, each of TCB and its
Subsidiaries
has filed all reports and statements, together with any amendments
required to
be made with respect thereto, that it was required to file with (1)
the Arkansas
State Bank Department, (2) the FDIC, (3) the Federal Reserve Board,
and (4) any
other Regulatory Authorities or other governmental authority having
jurisdiction
with respect to TCB and its Subsidiaries. As of their respective
dates (and
without giving effect to any amendments or modifications filed
after the date of
this Plan with respect to reports and documents filed before the
date of this
Plan), each of such reports and documents, including the financial
statements,
exhibits and schedules thereto, complied in all Material respects
with all of
the statutes, rules and regulations enforced or promulgated by the
Regulatory
Authority with which they were filed and did not contain any untrue
statement of
a Material fact or omit to state any Material fact necessary in
order to make
the statements made therein, in light of the circumstances under
which they were
made, not misleading.
(Q) BROKERS AND FINDERS. Except as set forth in Schedule
4.1(Q),
neither TCB, Twin City, any TCB Subsidiary nor any of their
respective officers,
directors or employees has employed any broker or finder, or agreed
to pay any
fees to any director or former director or incurred any Liability
for any
financial advisory fees, brokerage fees, commissions or finder's
fees, and no
broker or finder, or director or former director of TCB and Twin
City, has acted
directly or indirectly for TCB, Twin City or any TCB Subsidiary, in
connection
with this Plan or the transactions contemplated hereby.
(R) EMPLOYEE BENEFIT PLANS.
(1) Schedule 4.1(R)(1) contains a complete list of Compensation
and
Benefit Plans of TCB. True and complete copies of all Compensation
and
Benefit Plans of TCB and its Subsidiaries, including any trust
instruments
and/or insurance contracts, if any, forming a part thereof, and
all
amendments thereto, have been supplied to the other Parties.
(2) All ERISA Plans, other than Multiemployer Plans, covering
employees or former employees of TCB and its Subsidiaries, to
the
