<PAGE>
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
UNION PLANTERS CORPORATION
AND
REGIONS FINANCIAL CORPORATION
DATED AS OF JANUARY 22, 2004
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TABLE OF CONTENTS
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PAGE
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Parties......................................................................
1
RECITALS.....................................................................
1
Article 1 TERMS OF FIRST STEP
MERGER........................................
1
1.1 First Step
Merger..............................................
1
1.2 First Effective
Time...........................................
1
1.3 Conversion
of Regions Common Stock.............................
2
1.4
Cancellation of Newco Common Stock.............................
3
1.5
Cancellation of Shares Held by Union Planters or Regions.......
3
1.6 Regions
Stock Options and Other Equity-Based Awards............
3
1.7
Organizational Documents of Surviving Corporation..............
5
Article 2 TERMS OF SECOND STEP
MERGER.......................................
5
2.1 Second
Step Merger.............................................
5
2.2 Time and
Place of Closing......................................
5
2.3 Effective
Time.................................................
5
2.4 Conversion
of Union Planters Common Stock......................
6
2.5 Effects on
Common Stock........................................
6
2.6 Union
Planters Stock Options and Other Equity-Based Awards.....
7
Article 3 EXCHANGE OF
SHARES................................................
8
3.1 Exchange
Procedures............................................
8
3.2 Rights of
Holders..............................................
10
Article 4 REPRESENTATIONS AND
WARRANTIES....................................
10
4.1 Disclosure
Letters.............................................
10
4.2
Standards......................................................
11
4.3
Representations and Warranties of the Parties..................
12
Article 5 COVENANTS AND ADDITIONAL
AGREEMENTS...............................
23
5.1 Conduct of
Business Prior to Effective Time....................
23
5.2
Forbearances...................................................
23
5.3
Dividends......................................................
25
5.4 Redemption
of Union Planters Series E Preferred Stock..........
26
5.5 Reasonable
Best Efforts........................................
26
5.6
Shareholders' and Stockholders' Approvals......................
27
5.7
Registration Statement; Joint Proxy Statement/Prospectus.......
27
5.8 Listing of
Newco Common Stock..................................
28
5.9
Applications and Consents......................................
28
5.10
Notification of Certain Matters................................
29
5.11
Investigation and Confidentiality..............................
29
5.12
Press Releases; Publicity......................................
30
5.13
Acquisition Proposals..........................................
30
5.14
Takeover Laws; No Rights Triggered.............................
31
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5.15
Exemption from Liability Under Section 16(b)...................
31
5.16
Agreement of Affiliates........................................
32
5.17
Employee Benefits and Contracts................................
32
5.18
Indemnification................................................
33
5.19
Corporate Governance...........................................
35
5.20
Formation of Newco.............................................
37
5.21
Change of Method...............................................
37
5.22
Restructuring Efforts..........................................
37
Article 6 CONDITIONS PRECEDENT TO
OBLIGATIONS TO CONSUMMATE.................
37
6.1 Conditions
to Obligations of Each Party........................
37
6.2 Conditions
to Obligations of Regions...........................
38
6.3 Conditions
to Obligations of Union Planters....................
39
Article 7
TERMINATION.......................................................
40
7.1
Termination....................................................
40
7.2 Effect of
Termination..........................................
40
Article 8
MISCELLANEOUS.....................................................
41
8.1
Definitions....................................................
41
8.2
Non-Survival of Representations and Covenants..................
50
8.3
Expenses.......................................................
50
8.4
Termination Fee................................................
50
8.5 Entire
Agreement...............................................
51
8.6
Amendments.....................................................
52
8.7
Waivers........................................................
52
8.8
Assignment.....................................................
52
8.9
Notices........................................................
52
8.10
Governing Law..................................................
53
8.11
Counterparts...................................................
53
8.12
Captions.......................................................
53
8.13
Interpretations................................................
54
8.14
Severability...................................................
54
8.15
Waiver of Jury Trial...........................................
54
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LIST OF EXHIBITS
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EXHIBIT
DESCRIPTION
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1.
Amendment to Union Planters Rights Plan (Section 3.3(b)(iii))
2-A.
Form of Union Planters Affiliate Letter (Section 5.16)
2-B.
Form of Regions Affiliate Letter (Section 5.16)
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<PAGE>
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made
and
entered into as of January 22, 2004, by and
between UNION PLANTERS CORPORATION,
a Tennessee corporation ("Union Planters"),
and REGIONS FINANCIAL CORPORATION, a
Delaware corporation ("Regions").
RECITALS
A.
APPROVALS. The Boards of Directors of Union Planters and
Regions have determined that the
transactions described herein are consistent
with, and will further, their respective
business strategies and goals, and are
in the best interests of Union Planters and
Regions, respectively, and their
respective shareholders and
stockholders.
B. THE
MERGER. This Agreement provides for a strategic business
combination through the merger of Regions
with and into a newly-formed
Subsidiary of Regions and Union Planters to
be organized under Delaware law
("Newco") with Newco as the surviving
corporation, followed immediately
thereafter by the merger of Union Planters
with and into Newco with Newco as the
surviving corporation.
C.
INTENTION OF THE PARTIES. It is the intention of the Parties
that the First Step Merger and the Second
Step Merger, for federal income Tax
purposes shall each 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.
D.
DEFINED TERMS. Certain
capitalized terms used in this
Agreement are defined in Section 8.1 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:
ARTICLE 1
TERMS OF FIRST STEP MERGER
1.1 FIRST STEP
MERGER. Subject to the terms and conditions of this
Agreement, at the First Effective Time,
Regions shall be merged with and into
Newco in accordance with the provisions of
Section 251 of the DGCL (the "First
Step Merger"). Newco shall be the surviving
corporation in the First Step Merger
and shall continue to be governed by the
laws of the State of Delaware. Upon
consummation of the First Step Merger, the
separate corporate existence of
Regions shall cease.
1.2 FIRST
EFFECTIVE TIME. Subject to the terms and conditions of
this Agreement, on or before the Closing
Date, the Parties will cause articles
of merger to be filed with the Secretary of
State of the State of Delaware (the
"Delaware Secretary") as provided in
Section 251 of the DGCL to effect the First
Step Merger. The First Step Merger shall
take effect when such articles of
merger are filed, or at such other time as
may be specified therein (the "First
Effective Time").
<PAGE>
Subject to the terms and conditions hereof,
unless otherwise mutually agreed
upon by the duly authorized officers of
each Party, the Parties shall cause the
First Effective Time to occur on the fifth
business day following the date on
which satisfaction or waiver of the last of
the conditions set forth in Article
6 has occurred (other than those conditions
that by their nature are to be
satisfied at the Closing, but subject to
the fulfillment or waiver of those
conditions), or such earlier date mutually
agreed upon by the Parties.
1.3 CONVERSION
OF REGIONS COMMON STOCK. At the First Effective
Time, in each case subject to Sections
1.3(c) and 1.5, by virtue of the First
Step Merger and without any action on the
part of the Parties, Newco or the
holder of any of the following
securities:
(a) Each share
of Regions Common Stock that is
Outstanding immediately prior to the First Effective Time (other
than
shares of Regions Common Stock held by either Party, any of
their
respective Subsidiaries or Newco (in each case other than in a
fiduciary or agency capacity or as a result of debts previously
contracted)) shall be converted into the right to receive the
number of
shares of Newco Common Stock equal to the Exchange Ratio.
(b) All shares
of Regions Common Stock converted
pursuant to this Section 1.3 shall no longer be outstanding and
shall
automatically be cancelled and retired and shall cease to exist as
of
the First Effective Time, and each certificate previously
representing
any such shares of Regions Common Stock (the "Old Regions
Certificates") shall cease to have any rights except it shall
thereafter represent the right to receive with respect to each
underlying share of Regions Common Stock (i) a certificate
representing
the number of whole shares of Newco Common Stock into which the
shares
of Regions Common Stock represented by such Old Regions
Certificate
have been converted pursuant to this Section 1.3, (ii) in
accordance
with Section 1.3(c), cash in lieu of fractional shares of Newco
Common
Stock represented by such Old Regions Certificate which have
been
converted pursuant to this Section 1.3, and (iii) any dividends
or
distributions which the holder thereof has the right to receive
pursuant to Section 3.1(a).
(c)
Notwithstanding any other provision of this
Agreement, each holder of shares of Regions Common Stock
exchanged
pursuant to the First Step Merger who would otherwise have been
entitled to receive a fraction of a share of Newco Common Stock
(after
taking into account all Old Regions Certificates delivered by
such
holder) shall receive, in lieu thereof, cash (without interest
and
rounded to the nearest cent) in an amount equal to such fractional
part
of a share of Newco Common Stock (i) multiplied by the closing
sale
price of Regions Common Stock on the NYSE Composite Transaction
Tape on
the trading day immediately preceding the Closing Date as reported
by
The Wall Street Journal or, if not reported therein, in another
authoritative source and (ii) divided by the Exchange Ratio.
(d) If,
following the date of this Agreement and
prior to the First Effective Time, the outstanding shares of
Regions
Common Stock or Union Planters Common Stock shall have been
increased,
decreased, changed into or exchanged for a different number or kind
of
shares or securities as a result of a reorganization,
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recapitalization, reclassification, stock dividend, stock
split,
reverse stock split, or other similar change in capitalization,
then an
appropriate and proportionate adjustment shall be made to the
Exchange
Ratio.
1.4
CANCELLATION OF NEWCO COMMON STOCK. At and after the First
Effective Time, each share of Newco Common
Stock issued and outstanding
immediately prior to the First Effective
Time (other than any shares held by
Union Planters or its Subsidiaries) shall
be cancelled and retired and shall
resume the status of authorized and
unissued shares of Newco Common Stock, and
no shares of Newco Common Stock or other
securities of Newco shall be issued in
respect thereof.
1.5
CANCELLATION OF SHARES HELD BY UNION PLANTERS OR REGIONS. Each
of the shares of Regions Common Stock held
by either Party, any of their
respective Subsidiaries or Newco (in each
case other than in a fiduciary or
agency capacity or as a result of debts
previously contracted) shall be
cancelled and retired and shall cease to
exist at the First Effective Time and
no consideration shall be issued in
exchange therefor.
1.6 REGIONS
STOCK OPTIONS AND OTHER EQUITY-BASED AWARDS.
(a) Each
option to purchase shares of Regions Common
Stock (a "Regions Stock Option") granted
under an equity compensation plan of
Regions (a "Regions Stock Plan"), whether
vested or unvested, that is
outstanding and unexercised immediately
prior to the First Effective Time shall
cease, at the First Effective Time, to
represent a right to acquire shares of
Regions Common Stock and shall be converted
at the First Effective Time, without
any action on the part of any holder of any
Regions Stock Option, into an option
to purchase shares of Newco Common Stock (a
"Newco Stock Option") on the same
terms and conditions (including any option
reload features relating to any
Regions Stock Option outstanding on the
date hereof or granted after the date
hereof in accordance with Section 5.2(b))
as were applicable under such Regions
Stock Option (but taking into account any
changes thereto, including any
acceleration thereof, provided for in the
relevant Regions Stock Plan, or in the
related award document by reason of the
transactions contemplated hereby). The
number of shares of Newco Common Stock
subject to each such Newco Stock Option
shall be equal to the number of shares of
Regions Common Stock subject to each
such Regions Stock Option multiplied by the
Exchange Ratio, rounded, if
necessary, to the nearest whole share of
Newco Common Stock, and such Regions
Stock Option shall have an exercise price
per share (rounded to the nearest
cent) equal to the per share exercise price
specified in such Regions Stock
Option divided by the Exchange Ratio;
provided that, in the case of any Regions
Stock Option to which Section 421 of the
Internal Revenue Code applies as of the
First Effective Time (after taking into
account the effect of any accelerated
vesting thereof, if applicable) by reason
of its qualification under Section 422
or Section 423 of the Internal Revenue
Code, the exercise price, the number of
shares of Newco Common Stock subject to
such option and the terms and conditions
of exercise of such option shall be
determined in a manner consistent with the
requirements of Section 424(a) of the
Internal Revenue Code.
(b) At the
First Effective Time, each Right consisting
of, based on or relating to shares of
Regions Common Stock granted under an
Regions Stock Plan, other than Regions
Stock Options (each, a "Regions
Stock-Based Award"), whether vested or
unvested, contingent
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<PAGE>
or accrued, which is outstanding
immediately prior to the First Effective Time
shall cease, at the First Effective Time,
to represent a Right with respect to
shares of Regions Common Stock and shall be
converted without any action on the
part of any holder of a Right, at the First
Effective Time, into a Right
consisting of, based on or relating to
shares of Newco Common Stock (a "Newco
Stock-Based Award"), on the same terms and
conditions as were applicable under
the Regions Stock-Based Awards (but taking
into account any changes thereto,
including any acceleration thereof,
provided for in the relevant Regions Stock
Plan or in the related award document by
reason of the transactions contemplated
hereby). The number of shares of Newco
Common Stock subject to each such Newco
Stock-Based Award shall be equal to the
number of shares of Regions Common Stock
subject to the Regions Stock-Based Award
multiplied by the Exchange Ratio,
rounded, if necessary, to the nearest whole
share of Newco Common Stock and, if
applicable, such Newco Stock-Based Award
shall have an exercise price per share
(rounded to the nearest cent) equal to the
per share exercise price specified in
the Regions Stock Based Award divided by
the Exchange Ratio. Any dividend
equivalents credited to the account of each
holder of an Regions Stock-Based
Award as of the First Effective Time shall
remain credited to such holder's
account immediately following the First
Effective Time, subject to adjustment in
accordance with the foregoing (without
duplication to the increase in dividend
announced by Regions on the date
hereof).
(c) As soon as
practicable after the First Effective
Time, Newco shall deliver to the holders of
Regions Stock Options and Regions
Stock-Based Awards any required notices
setting forth such holders' rights
pursuant to the relevant Regions Stock
Plans and award documents and stating
that such Regions Stock Options and Regions
Stock-Based Awards have been assumed
by Newco and shall continue in effect on
the same terms and conditions (subject
to the adjustments required by this Section
1.6 after giving effect to the
Merger and the terms of the relevant
Regions Stock Plans).
(d) Following
the First Effective Time, Newco may
maintain the Regions Stock Plans for
purposes of granting future awards to
individuals who were employees of Regions
at the First Effective Time. If so,
the provisions of the Regions Stock Plans,
including the respective terms of
such plans, will be unchanged, except that
all Rights issued by Newco pursuant
to the Regions Stock Plans following the
First Effective Time shall be Rights in
respect of Newco Common Stock, and the
number of shares of Newco Common Stock
available for future issuance pursuant to
each Regions Stock Plan following the
First Effective Time (the "Available
Regions Stock Plan Shares") shall be equal
to the number of shares of Regions Common
Stock so available immediately prior
to the First Effective Time, multiplied by
the Exchange Ratio, rounded, if
necessary, to the nearest whole share of
Newco Common Stock.
(e) Prior to
the First Effective Time, Regions shall take
all necessary action and make all necessary
arrangements for the adjustment of
Regions Stock Options and Regions
Stock-Based Awards under this Section 1.6.
Newco shall reserve for future issuance a
number of shares of Newco Common Stock
at least equal to the number of shares of
Newco Common Stock that will be
subject to Newco Stock Options and Newco
Stock-Based Awards as a result of the
actions contemplated by this Section 1.6,
plus the number of Available Regions
Stock Plan Shares in the event that Newco
maintains the Regions Stock Plans as
contemplated by this Section 1.6. As soon
as practicable following the Effective
Time, Newco shall file a registration
statement on Form S-8 or S-3, as the case
dictates (or any successor form, or if Form
S-8 or S-3
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<PAGE>
is not available, other appropriate forms),
with respect to the shares of Newco
Common Stock subject to such Newco Stock
Options and Newco Stock-Based Awards
(and the Available Regions Stock Plan
Shares, as the case dictates) and shall
maintain the effectiveness of such
registration statement or registration
statements (and maintain the current status
of the prospectus or prospectuses
contained therein) for so long as such
Newco Stock Options and Newco Stock-Based
Awards remain outstanding.
(f) Regions
shall take such action as is necessary to
provide that as of no later than three
business days prior to the Closing Date
no further shares of Regions Common Stock
will be purchased under the Regions
Dividend Reinvestment Plan (the "Regions
DRIP"); provided, that such cessation
of further purchases following the Closing
Date shall be conditioned upon the
consummation of the Merger. Immediately
prior to and effective as of the First
Effective Time and subject to the
consummation of the Merger, Regions shall
terminate the Regions DRIP.
1.7
ORGANIZATIONAL DOCUMENTS OF NEWCO. The Organizational
Documents of Newco in effect at the First
Effective Time shall be as previously
disclosed by Regions in its Disclosure
Letter, with such changes thereto as
shall be mutually agreed upon by Regions
and Union Planters, until thereafter
amended in accordance with applicable Law
and Newco's Organizational Documents.
ARTICLE 2
TERMS OF SECOND STEP MERGER
2.1 SECOND
STEP MERGER. Subject to the terms and conditions of
this Agreement, at the Effective Time,
Union Planters shall be merged with and
into Newco in accordance with the
provisions of Section 252 of the DGCL and
Section 102 of the TBCA (the "Second Step
Merger" and, together with the First
Step Merger, the "Merger"). Newco shall be
the surviving corporation in the
Second Step Merger and shall continue to be
governed by the Laws of the State of
Delaware. Upon consummation of the Second
Step Merger, the separate corporate
existence of Union Planters shall
cease.
2.2 TIME AND
PLACE OF CLOSING. The closings of the First Step
Merger and the Second Step Merger (the
"Closing") shall take place sequentially
(with the Second Step Merger occurring
immediately after the First Step Merger),
on the same day, at such time and place as
Regions and Union Planters shall
agree, on the date when the First Effective
Time and the Effective Time (as
defined in Section 2.3) is to occur (the
"Closing Date"). The parties shall
coordinate filing to ensure the timing of
the foregoing.
2.3 EFFECTIVE
TIME. Subject to the terms and conditions of this
Agreement, on or before the Closing Date,
the Parties will cause articles of
merger to be filed with the Delaware
Secretary as provided in Section 251 of the
DGCL and with the Secretary of State of the
State of Tennessee (the "Tennessee
Secretary") as provided in Section 102 of
the TBCA to effect the Second Step
Merger. The Second Step Merger shall take
effect when such articles of merger
are filed, or at such other time as may be
specified therein (the "Effective
Time").
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2.4 CONVERSION
OF UNION PLANTERS COMMON STOCK. At the Effective
Time, in each case subject to Section 2.5,
by virtue of the Second Step Merger
and without any action on the part of the
Parties, Newco or the holder of any of
the following securities:
(a) Each share
of Union Planters Common Stock
(including the Union Planters Shareholder Rights) that is
Outstanding
immediately prior to the Effective Time (other than shares of
Union
Planters Common Stock held by either Party, any of their
respective
Subsidiaries or Newco (in each case other than in a fiduciary or
agency
capacity or as a result of debts previously contracted)) shall
be
converted into the right to receive one share of Newco Common
Stock.
(b) All shares
of Union Planters Common Stock
converted pursuant to this Section 2.4 shall no longer be
outstanding
and shall automatically be cancelled and retired and shall cease
to
exist as of the
Effective Time, and each certificate previously
representing any such shares of Union Planters Common Stock (the
"Old
Union Planters Certificates" and together with the Old Regions
Certificates, the "Old Certificates") shall cease to have any
rights
except it shall thereafter represent the right to receive with
respect
to each underlying share of Union Planters Common Stock (i) a
certificate representing the number of whole shares of Newco
Common
Stock into which the shares of Union Planters Common Stock
represented
by such Old Union Planters Certificate have been converted pursuant
to
this Section 2.4, and (ii) any dividends or distributions which
the
holder
thereof has the right to receive pursuant to Section 3.1(a).
(c) If,
following the date of this Agreement and
prior to the Effective Time, the outstanding shares of Regions
Common
Stock or Union Planters Common Stock shall have, except as provided
for
herein, been increased, decreased, changed into or exchanged for
a
different number or kind of shares or securities as a result of
a
reorganization, recapitalization, reclassification, stock
dividend,
stock split, reverse stock split, or other similar change in
capitalization, then an appropriate and proportionate adjustment
shall
be made to the number of shares of Newco Common Stock that each
share
of Union Planters Common Stock shall represent the right to
receive
upon conversion.
2.5 EFFECTS ON
COMMON STOCK.
(a) At and
after the Effective Time, each share of Newco
Common Stock issued and outstanding
immediately prior to the Closing Date shall
remain an issued and outstanding share of
common stock of the Surviving
Corporation and shall not be affected by
the Second Step Merger; provided that
any shares of Newco Common Stock held by
Union Planters or its Subsidiaries
prior to the Effective Time shall be
cancelled and retired and shall resume the
status of authorized and unissued shares of
Newco Common stock, and no shares of
Newco Common Stock or other securities of
Newco shall be issued in respect
thereof.
(b) Each of
the shares of Union Planters Common Stock
held by either Party, any of their
respective Subsidiaries or Newco (in each
case other than in a fiduciary or agency
capacity or as a result of debts
previously contracted) shall be cancelled
and retired and shall cease to exist
at the Effective Time and no consideration
shall be issued in exchange therefor.
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2.6 UNION
PLANTERS STOCK OPTIONS AND OTHER EQUITY-BASED AWARDS.
(a) Each
option to purchase shares of Union Planters
Common Stock (a "Union Planters Stock
Option") granted under an equity
compensation plan of Union Planters (a
"Union Planters Stock Plan"), whether
vested or unvested, that is outstanding and
unexercised immediately prior to the
Effective Time shall cease, at the
Effective Time, to represent a right to
acquire shares of Union Planters Common
Stock and shall be converted at the
Effective Time, without any action on the
part of any holder of any Union
Planters Stock Option, into a Newco Stock
Option on the same terms and
conditions (including any option reload
features relating to any Union Planters
Stock Option outstanding on the date hereof
or granted after the date hereof in
accordance with Section 5.2(b)) as were
applicable under such Union Planters
Stock Option (but taking into account any
changes thereto, including any
acceleration thereof, provided for in the
relevant Union Planters Stock Plan, or
in the related award document by reason of
the transactions contemplated
hereby). The number of shares of Newco
Common Stock subject to each such Newco
Stock Option shall be equal to the number
of shares of Union Planters Common
Stock subject to each such Union Planters
Stock Option, and such Newco Stock
Option shall have an exercise price per
share equal to the per share exercise
price specified in such Union Planters
Stock Option; provided that, in the case
of any Union Planters Stock Option to which
Section 421 of the Internal Revenue
Code applies as of the First Effective Time
(after taking into account the
effect of any accelerated vesting thereof,
if applicable) by reason of its
qualification under Section 422 or Section
423 of the Internal Revenue Code, the
exercise price, the number of shares of
Newco Common Stock subject to such
option and the terms and conditions of
exercise of such option shall be
determined in a manner consistent with the
requirements of Section 424(a) of the
Internal Revenue Code.
(b) At the
Effective Time, each Right consisting of,
based on or relating to shares of Union
Planters Common Stock granted under a
Union Planters Stock Plan, other than Union
Planters Stock Options (each, a
"Union Planters Stock-Based Award"),
whether vested or unvested, contingent or
accrued, which is outstanding immediately
prior to the Effective Time shall
cease, at the Effective Time, to represent
a Right with respect to shares of
Union Planters Common Stock and shall be
converted without any action on the
part of any holder of a Right, at the
Effective Time, into a Newco Stock-Based
Award, on the same terms and conditions as
were applicable under the Union
Planters Stock-Based Awards (but taking
into account any changes thereto,
including any acceleration thereof,
provided for in the relevant Union Planters
Stock Plan or in the related award document
by reason of the transactions
contemplated hereby). The number of shares
of Newco Common Stock subject to each
such Newco Stock-Based Award shall be equal
to the number of shares of Union
Planters Common Stock subject to the Union
Planters Stock-Based Award. Any
dividend equivalents credited to the
account of each holder of a Union Planters
Stock-Based Award as of the Effective Time
shall remain credited to such
holder's account immediately following the
Effective Time, subject to adjustment
in accordance with the foregoing.
(c) As soon as
practicable after the Effective Time,
Newco shall deliver to the holders of Union
Planters Stock Options and Union
Planters Stock-Based Awards any required
notices setting forth such holders'
rights pursuant to the relevant Union
Planters Stock Plans and award documents
and stating that such Union Planters Stock
Options and Union Planters
Stock-Based Awards have been assumed by
Newco and shall continue in effect on
the same terms and
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<PAGE>
conditions (subject to the adjustments
required by this Section 2.6 after giving
effect to the Merger and the terms of the
relevant Union Planters Stock Plans).
(d) Following
the Effective Time, Newco may maintain the
Union Planters Stock Plans for purposes of
granting future awards to individuals
who were employees of Union Planters at the
Effective Time. If so, the
provisions of the Union Planters Stock
Plans, including the respective terms of
such plans, will be unchanged, except that
all Rights issued by Newco pursuant
to the Union Planters Stock Plans following
the Effective Time shall be Rights
in respect of Newco Common Stock, and the
number of shares of Newco Common Stock
available for future issuance pursuant to
each Union Planters Stock Plan
following the Effective Time (the
"Available Union Planters Stock Plan Shares")
shall be equal to the number of shares of
Union Planters Common Stock so
available immediately prior to the
Effective Time.
(e) Prior to
the Effective Time, Union Planters shall
take all necessary action for the
adjustment of Union Planters Stock Options and
Union Planters Stock-Based Awards under
this Section 2.6. Newco shall reserve
for future issuance a number of shares of
Newco Common Stock at least equal to
the number of shares of Newco Common Stock
that will be subject to Newco Stock
Options and Newco Stock-Based Awards as a
result of the actions contemplated by
this Section 2.6, plus the number of
Available Union Planters Stock Plan Shares
in the event that Newco maintains the Union
Planters Stock Plans as contemplated
by this Section 2.6. As soon as practicable
following the Effective Time, Newco
shall file a registration statement on Form
S-8 or S-3, as the case dictates (or
any successor form, or if Form S-8 or S-3
is not available, other appropriate
forms), with respect to the shares of Newco
Common Stock subject to such Newco
Stock Options and Newco Stock-Based Awards
(and the Available Union Planters
Stock Plan Shares, as the case dictates)
and shall maintain the effectiveness of
such registration statement or registration
statements (and maintain the current
status of the prospectus or prospectuses
contained therein) for so long as such
Newco Stock Options and Newco Stock-Based
Awards remain outstanding.
(f) Union
Planters shall take such action as is necessary
to provide that as of no later than three
business days prior to the Closing
Date no further shares of Union Planters
Common Stock will be purchased under
the Union Planters Dividend Reinvestment
Plan (the "Union Planters DRIP");
provided, that such cessation of further
purchases following the Closing Date
shall be conditioned upon the consummation
of the Merger. Immediately prior to
and effective as of the First Effective
Time and subject to the consummation of
the Merger, Union Planters shall terminate
the Union Planters DRIP.
ARTICLE 3
EXCHANGE OF SHARES
3.1 EXCHANGE
PROCEDURES.
(a) At or
prior to the First Effective Time, Newco 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 1 and Article 2 and this Article 3,
certificates representing Newco
Common Stock ("New Certificates") (together
with any dividends or distributions
with respect thereto and any cash to be
paid hereunder in lieu of fractional
shares of Newco Common
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<PAGE>
Stock (without any interest thereon), the
"Exchange Fund") to be paid pursuant
to Article 1 and Article 2 and this Article
3 in exchange for outstanding shares
of Union Planters Common Stock and Regions
Common Stock.
(b) As
promptly as practicable after the Effective Time
and the First Effective Time, respectively,
Newco shall send or cause to be sent
to each former holder of record of shares
of Union Planters Common Stock and
Regions Common Stock immediately prior to
the Effective Time and the First
Effective Time, respectively (each, a
"Holder"), transmittal materials for use
in exchanging such Holder's Old
Certificates for the consideration set forth in
Article 1 and Article 2 (which shall
specify that delivery shall be effected,
and risk of loss and title to the
certificates theretofore representing such
shares of Union Planters Common Stock and
Regions Common Stock shall pass, only
upon proper delivery of such certificates
to the Exchange Agent). Newco shall
cause the New Certificates for shares of
Newco Common Stock into which shares of
a Holder's Union Planters Common Stock or
Regions Common Stock, as the case may
be, are converted at the Effective Time or
dividends or distributions which such
Person shall be entitled to receive and any
fractional share interests (in the
case of Regions Holders only), to be
delivered to such Person upon delivery to
the Exchange Agent of Old Certificates
representing such shares of Union
Planters Common Stock or Regions Common
Stock, as the case may be, together with
the transmittal materials, duly executed
and completed in accordance with the
instructions thereto. No interest will
accrue or be paid on any such cash to be
paid pursuant to Article 1 and Article 2
and this Article 3 upon such delivery.
If any New Certificate is to be issued or
any cash payment is to be made in a
name other than that in which the Old
Certificate surrendered in exchange
therefor is registered, it shall be a
condition of such exchange that the Person
requesting such exchange shall pay any
transfer or other Taxes required by
reason of the issuance of such New
Certificate or the making of such cash
payment in a name other than that of the
registered Holder of the Old
Certificate surrendered, or shall establish
to the satisfaction of Newco and the
Exchange Agent that any such Taxes have
been paid or are not applicable. Any
Person who the Parties reasonably believe
to be an "affiliate" of Union Planters
or Regions for purposes of Rule 145 of the
1933 Act shall not be entitled to
receive any New Certificate or payment
pursuant to Article 1 or Article 2 or
this Article 3 until such Person shall have
duly executed and delivered an
appropriate agreement as described in
Section 5.16.
(c)
Notwithstanding the foregoing, none of the Exchange
Agent, any of the Parties or any of their
respective Subsidiaries shall be
liable to any former Holder of Union
Planters Common Stock or Regions Common
Stock for any amount properly delivered to
a public official pursuant to
applicable abandoned property, escheat or
similar Laws.
(d) If any Old
Certificate shall have been lost, stolen
or destroyed, upon the making of an
affidavit of that fact by the Person
claiming such Old Certificate to be lost,
stolen or destroyed and, if required
by Newco or the Exchange Agent, the posting
by such Person of a bond in such
reasonable amount as Newco or the Exchange
Agent may direct as indemnity against
any claim that may be made against it with
respect to such Old Certificate,
Newco or the Exchange Agent shall, in
exchange for the shares of Union Planters
Common Stock or Regions Common Stock
represented by such lost, stolen or
destroyed Old Certificate, issue or cause
to be issued a New Certificate and pay
or cause to be paid the amounts, if any,
deliverable in respect to the shares of
Union Planters Common Stock or Regions
Common Stock, as the case may be,
formerly represented by such Old
Certificate pursuant to this Agreement.
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<PAGE>
(e) Any
portion of the Exchange Fund that remains
unclaimed by the Holders of Union Planters
and Regions for six months after the
Effective Time shall be returned to Newco
(together with any dividends or
earnings in respect thereof). Any Holders
of Union Planters or Regions who have
not theretofore complied with this Article
3 shall thereafter be entitled to
look only to Newco, and only as a general
creditor thereof, for payment of the
consideration deliverable in respect of
each share of Union Planters Common
Stock or Regions Common Stock such Holder
holds as determined pursuant to this
Agreement, in each case, without any
interest thereon.
3.2 RIGHTS OF
HOLDERS. At the Effective Time, the stock transfer
books of Union Planters and Regions shall
be closed and no transfer by any
Holder shall thereafter be made or
recognized. Until surrendered for exchange in
accordance with the provisions of Section
3.1, each Old Certificate (other than
shares to be cancelled pursuant to Section
1.5) shall from and after the
Effective Time or the First Effective Time,
as the case may be, represent for
all purposes only the right to receive the
consideration provided in Sections
1.3 and 2.4, as the case may be, and any
dividends or any other distributions
with a record date prior to the Effective
Time which have been declared or made
by Union Planters in respect of such shares
of Union Planters Common Stock or
Regions in respect of Regions Common Stock
in accordance with the terms of this
Agreement and which remain unpaid at the
Effective Time. To the extent permitted
by Law, Holders shall be entitled to vote
after the Effective Time at any
meeting of Newco stockholders the number of
whole shares of Newco Common Stock
into which their respective shares of Union
Planters Common Stock or Regions
Common Stock, as the case may be, are
converted, regardless of whether such
Holders have exchanged their certificates
representing Union Planters Common
Stock or Regions Common Stock, as the case
may be, for New Certificates
representing Newco Common Stock in
accordance with the provisions of this
Agreement, but beginning 30 days after the
Effective Time no such Holder shall
be entitled to vote on any matter until
such Holder surrenders such Old
Certificate for exchange as provided in
Section 3.1. Whenever a dividend or
other distribution is declared by Newco on
Newco 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 Newco Common Stock issuable
pursuant to this Agreement, but beginning
30 days after the Effective Time no
dividend or other distribution payable to
the holders of record of Newco Common
Stock as of any time subsequent to the
Effective Time shall be delivered to the
Holder of an Old Certificate until such
Holder surrenders such Old Certificate
for exchange as provided in Section 3.1.
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 cash
payments to be paid for fractional share
interests (without interest), shall be
delivered and paid with respect to each
share represented by such New
Certificate.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1 DISCLOSURE
LETTERS. Prior to the execution and delivery of
this Agreement, each Party has delivered to
the other Party a letter (its
"Disclosure Letter") setting forth, among
other things, items the disclosure of
which is necessary or appropriate either in
response to an express disclosure
requirement contained in a provision hereof
or as an exception to one or more of
such Party's representations or warranties
contained in Section 4.3 or to one or
more of its covenants
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<PAGE>
contained in Article 5; provided, that (i)
no such item is required to be set
forth in a Party's Disclosure Letter as an
exception to any representation or
warranty of such Party if its absence would
not result in the related
representation or warranty being deemed
untrue or incorrect under the standard
established by Section 4.2, and (ii) the
mere inclusion of an item in a Party's
Disclosure Letter as an exception to a
representation or warranty shall not be
deemed an admission by that Party that such
item represents a material exception
or fact, event or circumstance or that such
item is reasonably likely to result
in a Material Adverse Effect with respect
to such Party. Any disclosures made
with respect to a subsection of Section 4.3
shall be deemed to qualify (a) any
subsections of Section 4.3 specifically
referenced or cross-referenced and (b)
other subsections of Section 4.3 to the
extent it is clear (notwithstanding the
absence of a specific cross reference) from
a reading of the disclosure that
such disclosure (i) applies to such other
subsections and (ii) contains
sufficient detail to enable a reasonable
Person to recognize the relevance of
such disclosure to such other
subsections.
4.2
STANDARDS.
(a) No
representation or warranty of any Party hereto or
Newco contained in Section 4.3 (other than
the representations and warranties in
(i) Sections 4.3(b)(i), 4.3(c)(i) and (ii),
and 4.3(r) which shall be true and
correct in all material respects with
respect to it, and (ii) Sections
4.3(b)(ii)(A) and 4.3(e)(ii) which shall be
true and correct in all respects)
shall be deemed untrue or incorrect, and no
Party hereto or Newco shall be
deemed to have breached a representation or
warranty, as a consequence of the
existence or absence of any fact,
circumstance or event unless such fact,
circumstance or event, individually or
taken together with all other facts,
circumstances or events inconsistent with
any representation or warranty
contained in Section 4.3, has had or is
reasonably likely to have a Material
Adverse Effect on such Party or Newco.
(b) The term
"Material Adverse Effect," as used with
respect to a Party or Newco, means an
effect which (i) is materially adverse to
the business, properties, financial
condition or results of operations of such
Party and its Subsidiaries, or Newco, taken
as a whole, or (ii) materially
impairs the ability of such Party or Newco
to consummate the Merger and the
transactions contemplated hereby on a
timely basis; provided that, in
determining whether a Material Adverse
Effect has occurred, there shall be
excluded any effect to the extent
attributable to or resulting from (A) any
changes in Laws, regulations or
interpretations of Laws or regulations generally
affecting the banking, bank holding company
or financial holding company
businesses, (B) any change in GAAP or
regulatory accounting requirements,
generally affecting the banking, bank
holding company or financial holding
company businesses, (C) events, conditions
or trends in economic, business or
financial conditions generally affecting
the banking, bank holding company or
financial holding company businesses
specifically, (D) changes in national or
international political or social
conditions including the engagement by the
United States in hostilities, whether or
not pursuant to the declaration of a
national emergency or war, or the
occurrence of any military or terrorist attack
upon or within the United States, or any of
its territories, possessions or
diplomatic or consular offices or upon any
military installation, equipment or
personnel of the United States, (E) the
effects of the actions expressly
permitted or required by this Agreement or
that are taken with the prior
informed written consent of the other Party
and Newco in contemplation of the
transactions contemplated hereby, and (F)
the announcement of this Agreement and
the transactions contemplated hereby.
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<PAGE>
4.3
REPRESENTATIONS AND WARRANTIES OF THE PARTIES. Subject to and
giving effect to Sections 4.1 and 4.2 and
except as set forth in the relevant
Disclosure Letter, Regions hereby
represents and warrants to Union Planters and
Union Planters hereby represents and
warrants to Regions, and Newco hereby
represents and warrants to Regions and
Union Planters that:
(a)
ORGANIZATION, STANDING, AND POWER; SUBSIDIARIES. It,
and each of its Subsidiaries, is duly
organized, validly existing, and (to the
extent applicable) in good standing under
the Laws of the jurisdiction in which
it is organized. It, and each of its
Subsidiaries, has the requisite corporate
power and authority to own, lease, and
operate its properties and assets and to
carry on its business as now conducted. It,
and each of its Subsidiaries, is
duly qualified or licensed to do business
and (to the extent applicable) 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. It has made
available to the other Party hereto a
complete and correct copy of its
Organizational Documents, each as amended to
the date hereof and as in full force and
effect as of the date hereof. A true
and complete list of its direct and
indirect Subsidiaries as of the date hereof
is set forth in Section 4.3(a) of its
Disclosure Letter.
(b) AUTHORITY;
NO BREACH OF AGREEMENT.
(i) It has,
and Newco will have, 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
hereby, including the Merger, by it, have been duly and validly
authorized by all necessary corporate action (including valid
authorization and unanimous adoption of this Agreement by its
duly
constituted Board of Directors), subject only to the receipt of (A)
in
the case of Union Planters, the approval of this Agreement by
the
holders of a majority of the Outstanding shares of Union
Planters
Common Stock (the "Union Planters Shareholder Approval"), (B) in
the
case of Regions, approval of this Agreement by the holders of a
majority of the Outstanding shares of Regions Common Stock (the
"Regions Stockholder Approval") and (C) in the case of Newco,
approval
of this Agreement and the transactions contemplated hereby by
Union
Planters and Regions, as the sole stockholders of Newco (the
"Newco
Stockholder Approval"). Subject to the Union Planters
Shareholder
Approval in the case of Union Planters, the Regions Stockholder
Approval in the case of Regions, and the Newco Stockholder Approval
in
the case of Newco and assuming due authorization, execution,
and
delivery of this Agreement by the other Party and by Newco,
this
Agreement represents a legal, valid, and binding obligation of
it,
enforceable against it 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).
(ii)
Neither the execution and delivery of this
Agreement by it, nor the consummation by it of the transactions
contemplated hereby, nor compliance by it with
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<PAGE>
any of the
provisions hereof, will (A) conflict with or result in a
breach or violation of any provision of its Organizational
Documents,
(B) constitute or result in a Default under, or require any
Consent
pursuant to, or result in the creation or acceleration of any
Lien
(with or without the giving of notice, the lapse of time or both)
on
any material asset of it or its Subsidiaries under, any Contract
or
Permit of it or its Subsidiaries, or any change in the rights
or
obligations under any Contract, or (C) subject to receipt of
the
Regulatory Consents and the expiration of any waiting period
required
by Law, violate any Law, Order or governmental license applicable
to it
or its Subsidiaries or any of their respective material assets.
(iii) In
the case of Union Planters only, it has
taken all action necessary or appropriate so that the entering into
of
this Agreement, and the consummation of the transactions
contemplated
hereby (individually or in conjunction with any other event), do
not
and will not result in the ability of any Person to exercise any
rights
under the Union Planters Rights Plan or enable or require the
Union
Planters Shareholder Rights to separate from the shares of
Union
Planters Common Stock to which they are attached or to be triggered
or
become exercisable or unredeemable. No "Distribution Date" (as
such
term is defined in the Union Planters Rights Plan) has occurred or
will
occur as a result of the transactions contemplated hereby.
Union
Planters has duly adopted an amendment to the Union Planters
Rights
Plan substantially in the form attached hereto as Exhibit 1.
(iv)
Other than in connection or compliance with
the provisions of the Securities Laws, and other than (A) the
Regulatory Consents, (B) notices to or filings with the
Internal
Revenue Service or the Pension Benefit Guaranty Corporation
(the
"PBGC") or both with respect to any Compensation and Benefit Plans,
and
(C) as set forth in Section 4.3(b)(iv) of its Disclosure Letter,
no
notice to, application or filing with, or Consent of, any
Governmental
Authority is necessary in connection with the execution, delivery
or
performance of this Agreement and the consummation by it of the
Merger
and the other transactions contemplated by this Agreement.
(c) CAPITAL
STOCK.
(i) In the
case of Union Planters only, the
authorized capital stock of Union Planters consists of
300,000,000
shares of Union
Planters Common Stock and 10,000,000 shares of Union
Planters Preferred Stock, of which, as of the date of this
Agreement,
(A) 188,960,454 shares of Union Planters Common Stock were issued
and
outstanding, (B) 389,910 shares of Union Planters Series E
Preferred
Stock were issued and outstanding, and (C) no shares of Union
Planters
Series F Preferred Stock were issued and outstanding, and not more
than
211,094,923 shares of Union Planters Common Stock and no shares
of
Union Planters Series E Preferred Stock will be issued and
outstanding
immediately prior to the Effective Time. As of the date of this
Agreement, no more than 18,668,648 shares of Union Planters
Common
Stock were subject to Union Planters Stock Options granted under
Union
Planters Stock Plans. As of the date of this Agreement, there were
no
more than 21,406,507 shares of Union Planters Common Stock subject
to
outstanding Rights under the Union Planters Stock Plans. Except as
set
forth in this Section 4.3(c)(i), or as contemplated by the
Union
Planters Rights Plan, the Union Planters DRIP or as specifically
set
forth in Section 4.3(c)(i) of
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<PAGE>
Union Planters' Disclosure Letter (which shall set forth in
detail
(including exercise prices) all outstanding (i) stock options,
(ii)
shadow stock units and (iii) restricted stock and restricted
stock
units under Union Planters Stock Plans), there are no shares of
Union
Planters Capital Stock or other equity securities of Union
Planters
outstanding and no outstanding Rights relating to the Union
Planters
Capital Stock, and no Person has any Contract or any right or
privilege
(whether pre-emptive or contractual) capable of becoming a Contract
or
Right for the purchase, subscription or issuance of any securities
of
Union Planters. All of the Outstanding shares of Union Planters
Capital
Stock are duly and validly authorized, issued and outstanding and
are
fully paid and nonassessable. None of the outstanding shares of
Union
Planters Capital Stock has been issued in violation of any
preemptive
or similar rights of the current or past shareholders of Union
Planters.
(ii)
In the case of Regions only, the authorized
capital stock of Regions consists of 500,000,000 shares of
Regions
Common Stock and 5,000,000 shares of Regions Preferred Stock, of
which,
as of the date of this Agreement, (A) 221,967,484 shares of
Regions
Common Stock were issued and outstanding, and (B) no shares of
Regions
Preferred Stock were issued and outstanding, and not more than
241,981,028 shares of Regions Common Stock will be issued and
outstanding immediately prior to the First Effective Time. As of
the
date of this Agreement, no more than 20,013,544 shares of
Regions
Common Stock were subject to Regions Stock Options granted under
the
Regions Stock Plans. As of the date of this Agreement, there were
no
more than 20,013,544 shares of Regions Common Stock subject to
outstanding Rights under the Regions Stock Plans. Except as set
forth
in this Section 4.3(c)(ii), or as specifically set forth in
Section
4.3(c)(ii) of Regions' Disclosure Letter (which shall set forth
in
detail (including exercise prices) all outstanding (i) stock
options,
(ii) stock appreciation rights and (iii) restricted stock and
restricted stock units under Regions Stock Plans), there are no
shares
of Regions Capital Stock or other equity securities of Regions
outstanding and no outstanding Rights relating to the Regions
Capital
Stock, and no Person has any Contract or any right or privilege
(whether pre-emptive or contractual) capable of becoming a Contract
or
Right for the purchase, subscription or issuance of any securities
of
Regions. All of the Outstanding shares of Regions Capital Stock
are
duly and validly authorized, issued and outstanding and are fully
paid
and nonassessable. None of the outstanding shares of Regions
Capital
Stock has been issued in violation of any preemptive or similar
rights
of the current or past stockholders of Regions.
(iii)
In the
case of Newco only, the authorized
capital stock of Newco shall be as agreed by the Parties, of which,
as
of the First Effective Time, 2 shares of Newco Common Stock will
be
issued and outstanding and will be held equally by Regions and
Union
Planters. The authorized capital stock of Newco immediately
following
consummation of the First Step Merger (and prior to the Effective
Time)
will be as set forth in the form of Newco Certificate of
Incorporation.
No change in such capitalization will occur prior to the Effective
Time
except as provided in or contemplated by this Agreement. At the
Effective Time, no capital stock of Newco (and no Rights to acquire
any
such
capital stock) will be outstanding, except as contemplated by
this
Agreement.
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<PAGE>
(iv)
All the outstanding shares of capital stock
of each of its Subsidiaries owned by it or a Subsidiary of it have
been
duly authorized and validly issued and are fully paid and (except,
with
respect to bank Subsidiaries, as provided under applicable state
Law)
nonassessable, and are owned by it or a Subsidiary of it free and
clear
of all Liens or Rights. In the case of Newco only, Newco has, and
will
have prior to the First Effective Time, no Subsidiaries or
material
investments of any kind in any entity.
(v) In the
case of Newco only, the shares of
Newco Common Stock to be issued in the Merger, when so issued
in
accordance with this Agreement, will have been duly authorized
and
validly issued and will be fully paid and nonassessable and not
subject
to any preemptive rights.
(d) SEC
FILINGS; FINANCIAL STATEMENTS.
(i) Each Party
has filed and made available to
the other Party all SEC Documents required to be filed by it with
the
SEC since December 31, 2000 (collectively, the "SEC Reports"). Its
SEC
Reports, including the Financial Statements, exhibits and
schedules
contained therein, (A) at the time filed, complied (and any SEC
Reports
filed after the date of this Agreement will comply) in all
material
respects with the applicable requirements of the Securities Laws,
and
(B) at the time they were filed (or if amended or superseded by
another
SEC Report filed prior to the date of this Agreement, then on the
date
of such filing), did not (and any SEC Reports filed after the date
of
this Agreement will not) contain any untrue statement of a
material
fact or omit to state a material fact required to be stated in such
SEC
Reports or necessary in order to make the statements made in such
SEC
Reports, in light of the circumstances under which they were made,
not
misleading.
(ii)
Each of its Financial Statements contained
in its SEC Reports (including any SEC Reports filed after the date
of
this Agreement) complied (or, in the case of SEC Reports filed
after
the date of this Agreement, will comply) in all material respects
with
the applicable requirements of the Securities Laws with respect
thereto, fairly presented (or, in the case of SEC Reports filed
after
the date of this Agreement, will fairly present) the
consolidated
financial position of it and its Subsidiaries as at the
respective
dates and the consolidated results of its operations and cash flows
for
the periods indicated, in each case in accordance with GAAP
consistently
applied during the periods indicated, except in each case
as may be noted therein, and subject to normal year-end audit
adjustments and as permitted by Form 10-Q in the case of
unaudited
Financial Statements.
(iii) Its
2003 earnings press release issued on
January 15, 2004 in the case of Union Planters and on January 16,
2004
in the case of Regions fairly presented the consolidated
financial
position of it and its Subsidiaries as at the respective dates and
the
consolidated results of its operations for the periods indicated,
in
each case in accordance with GAAP consistently applied during
the
periods indicated, and did not contain any untrue statement of
a
material fact or omit to state a material fact required to
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<PAGE>
be stated therein or necessary in order to make the statements
made
therein, in light of the circumstances under which they were made,
not
misleading.
(e) ABSENCE OF
CERTAIN CHANGES OR EVENTS. Since September
30, 2003, except as disclosed in its SEC
Reports filed prior to the date of this
Agreement, (i) it and its Subsidiaries have
conducted their respective
businesses only in the ordinary course of
such businesses and (ii) there have
been no events, changes, developments or
occurrences which have had, or are
reasonably likely to have, individually or
in the aggregate, a Material Adverse
Effect on it.
(f) TAX
MATTERS. All Tax Returns required to be filed by
or on behalf of it or any of its
Subsidiaries have been timely filed or requests
for extensions have been timely filed and
any such extension has been granted
and has not expired, and all such filed
returns are complete and accurate in all
material respects. It has made available to
the other Party true and correct
copies of the United States federal income
Tax Returns filed by it or its
Subsidiaries for each of the three most
recent fiscal years ended on or before
December 31, 2002. Except as disclosed in
its SEC Reports filed prior to the
date of this Agreement, all Taxes
attributable to it or any of its Subsidiaries
that are or were due or payable (without
regard to whether such Taxes have been
assessed) have been paid in full or have
been adequately provided for on its
consolidated balance sheet and consolidated
statement of earnings or income in
accordance with GAAP. As of the date of
this Agreement and except as disclosed
in its SEC Reports filed prior to the date
of this Agreement, there is no
outstanding audit examination, deficiency,
refund or other Tax Litigation or
outstanding waivers or agreements extending
the applicable statute of
limitations for the assessment or
collection of any Taxes for any period with
respect to any Taxes of it or its
Subsidiaries. All Taxes due with respect to
completed and settled examinations or
concluded Litigation relating to it or any
of its Subsidiaries have been paid in full
or have been recorded in accordance
with GAAP on its or its Subsidiaries'
balance sheet and consolidated statement
of earnings or income. Neither it nor any
of its Subsidiaries is a party to a
Tax sharing, indemnification or similar
agreement or any agreement pursuant to
which it or any of its Subsidiaries has any
obligation to any Person (other than
it or one of its Subsidiaries) with respect
to Taxes. The proper and accurate
amounts have been withheld from all
employees, creditors, or third parties (and
timely paid to the appropriate Governmental
Authority or set aside in an account
for such purposes) for all periods through
the Effective Time in compliance with
all Tax withholding provisions of
applicable federal, state, local and foreign
Laws (including income, social security and
employment Tax withholding for all
types of compensation). Neither it nor any
of its Subsidiaries has been a party
to any distribution occurring during the
last three years in which the parties
to such distribution treated the
distribution as one to which Section 355 of the
Internal Revenue Code applied. Neither it
nor any of its Subsidiaries is a party
to any "listed transaction" as defined in
Treasury Regulation Section
1.6011-4(b)(2). No Liens for Taxes exist
with respect to it or its Subsidiaries,
except for statutory Liens for Taxes not
yet due and payable or that are being
contested in good faith and reserved for in
accordance with GAAP.
(g) CERTAIN
ACTIONS. Neither it nor any of its
Subsidiaries or any Affiliates thereof has
taken or agreed to take any action,
and it 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
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(ii) materially impede or materially delay
receipt of any Regulatory Consents.
To its knowledge, as of the date hereof,
there exists no fact, circumstance, or
reason that would cause any Regulatory
Consents not to be received in a timely
manner.
(h)
ENVIRONMENTAL MATTERS. Except as described in the
Disclosure Letter: (i) no Hazardous
Material is contained in or has been used at
or released from its Facilities other than
in compliance with, and as would not
reasonably be expected to result in
liability under, any Environmental Laws;
(ii) all Hazardous Materials used by it or
stored on its Properties have been
disposed of in accordance with, and as
would not reasonably be expected to
result in liability under, any
Environmental Laws; (iii) neither it nor any of
its Subsidiaries is potentially liable as a
responsible party under any
Environmental Law, including the federal
Comprehensive Environmental Response,
Compensation and Liability Act, as amended
("CERCLA"), or state analog statute,
arising out of events occurring prior to
the Effective Time; (iv) there have not
been in the past, and are not now, any
Hazardous Materials that have been
released on or under or are migrating to or
from the Facilities or any Property;
(v) there have not been in the past, and
are not now, any underground tanks or
physical structures or vessels holding
Hazardous Materials at, on or under any
Property including treatment or storage
tanks, sumps, lagoons, basins, or water,
gas or oil wells; (vi) there are no
polychlorinated biphenyls ("PCBs")
deposited, stored, disposed of or located
on any Property or Facilities or any
equipment on any Property containing PCBs
at levels in excess of levels
permitted by law; (vii) it and its
Subsidiaries and Affiliates are not subject
to any consent orders, decrees, notices of
violation, injunctions, directives or
orders from any Governmental Authority or
any indemnity or other agreement with
any third party relating to obligations,
costs or liabilities arising under any
Environmental Law; (viii) the Facilities
and its and its Subsidiaries'
activities and operations have at all times
complied with all Environmental
Laws, (ix) it and its Subsidiaries have
received no notice of any noncompliance
with, or liability under, any Environmental
Laws regarding the Facilities or any
Property or its past or present operations
and (x) no claims, notices,
administrative actions, information
requests or suits are pending or, to its
knowledge, threatened relating to any
actual or potential violation, liability
or obligation by it or any of its
Subsidiaries with respect to any Environmental
Laws.
(i) COMPLIANCE
WITH PERMITS, LAWS AND ORDERS.
(i) It and
each of its Subsidiaries has in
effect all Permits and has made all filings, applications, and
registrations with Governmental Authorities that are required for
it to
own, lease, or operate its material assets and to carry on its
business
as now conducted and there has occurred no Default under any
Permit
applicable to its business or employees conducting its
business.
(ii)
Neither it nor any of its Subsidiaries is in
Default under any Laws or Orders applicable to it, its business
or
employees conducting its business. Each of its Subsidiaries that is
an
insured depository institution has a Community Reinvestment Act
rating
of "satisfactory" or better.
(iii)
Since January 1, 2000, neither it nor any of
its Subsidiaries has received any notification or communication
from
any Governmental Authority, (A) asserting that it or any of its
Subsidiaries is in Default under any Permits, Laws or
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Orders, (B) threatening to revoke any Permits, (C) requiring it or
any
of its Subsidiaries (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 resolution of
its
Board of Directors or similar undertaking, which restricts the
conduct
of its business, or relates to its capital adequacy, its credit
or
reserve policies, its management, or the payment of dividends or
any
other policy or procedure, or (D) threatening or contemplating
revocation or limitation of, or which would have the effect of
revoking
or limiting, Federal Deposit Insurance Corporation ("FDIC")
deposit
insurance, and neither it nor any of its Subsidiaries has received
any
notice from a Governmental Authority that it is considering issuing
any
of the foregoing.
(iv)
There (A) is no unresolved violation,
criticism, or exception by any Governmental Authority with respect
to
any report or
statement relating to any examinations or inspections of
it or any of its Subsidiaries and (B) have been no formal or
informal
inquiries by, or disagreements or disputes with, any
Governmental
Authority with respect to its or any of its Subsidiaries'
business,
operations, policies or procedures since January 1, 2000.
(v) There is
no Order, circumstance or condition
relevant or applicable to it that would prevent, or is
reasonably
likely to prevent, Newco from satisfying the criteria for
"financial
holding company" status under the BHC Act after the First
Effective
Time.
(j) LABOR
RELATIONS. Neither it nor any of its
Subsidiaries is the subject of any
Litigation asserting that it or any of its
Subsidiaries 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 of its Subsidiaries to bargain with any
labor organization as to wages or
conditions of employment, nor is it or any
of its Subsidiaries 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 it or any
of its Subsidiaries pending or, to
its knowledge, threatened, nor to its
knowledge, is there any activity involving
it or any of its Subsidiaries' employees
seeking to certify a collective
bargaining unit or engaging in any other
organization activity.
(k) EMPLOYEE
COMPENSATION AND BENEFIT PLANS.
(i) It has
disclosed in Section 4.3(k) of its
Disclosure Letter, and has delivered or made available to the
other
Party prior to the date of this Agreement correct and complete
copies
of, all of its Compensation and Benefit Plans. Neither it nor any
of
its Subsidiaries has an "obligation to contribute" (as defined in
ERISA
Section 4212) nor have they ever had an obligation to contribute 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, that was ever maintained by it or any of its
Subsidiaries and that was intended to qualify under Section 401(a)
of
the Internal Revenue Code, is disclosed as such in Section 4.3(k)
of
its Disclosure Letter.
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<PAGE>
(ii)
It has delivered or made available to the
other Party prior to the date of this Agreement correct and
complete
copies of the following documents: (A) all trust agreements or
other
funding arrangements for its Compensation and Benefit Plans
(including
insurance Contracts), and all amendments thereto (all such
trust
agreements and other funding arrangements are disclosed in
Section
4.3(k) of its Disclosure Letter), (B) with respect to any such
Compensation and 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 PBGC after December 31, 1994, (C) annual reports
or
returns, audited or unaudited financial statements, actuarial
valuations and reports, and summary annual reports prepared for
any
Compensation and Benefit Plans with respect to the most recent
plan
year, and (D) the most recent summary plan descriptions and any
material modifications thereto.
(iii) All
of its Compensation and Benefit Plans
are in compliance with the applicable terms of ERISA, the
Internal
Revenue Code, and any other applicable Laws. Except as disclosed
in
Section 4.3(k) of its Disclosure Letter, each of its ERISA Plans
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 covering all Tax Law changes prior to
the
Economic Growth and Tax Relief Reconciliation Act of 2001 and, to
its
knowledge, there are no circumstances likely to result in
revocation of
any such favorable determination letter. Except as disclosed in
Section
4.3(k) of its Disclosure Letter, each trust created under any of
its
ERISA Plans has been determined to be exempt from Tax under
Section
501(a) of the Internal Revenue Code and it is not aware of any
circumstance which will or could reasonably result in revocation
of
such exemption. Any voluntary employees' beneficiary association
within
the meaning of Section 501(c)(9) of the Internal Revenue Code
which
provides benefits under a Compensation and Benefit Plan has (i)
received an opinion letter from the Internal Revenue Service
recognizing its exempt status under Section 501(c)(9) of the
Internal
Revenue Code and (ii) filed a timely notice with the Internal
Revenue
Service pursuant to Section 505(c) of the Internal Revenue Code,
and it
is not aware of circumstances likely to result in the loss of
such
exempt status under Section 501(c)(9) of the Internal Revenue
Code.
There is no pending or, to its knowledge, threatened Litigation
relating to any of its ERISA Plans.
(iv)
Neither it nor any of its Subsidiaries has
engaged in a transaction with respect to any of its Compensation
and
Benefit Plans that, assuming the Taxable Period of such
transaction
expired as of the date of this Agreement or the Effective Time,
would
subject it or any of its Subsidiaries to a Tax or penalty imposed
by
either Section 4975 of the Internal Revenue Code or Section 502(i)
of
ERISA.
(v) Except as
disclosed in Section 4.3(k) of its
Disclosure Letter, each of its Pension Plans had, as of the date of
its
most recent actuarial valuation, assets measured at fair market
value
at least equal to its "current liability," as that term is defined
in
Section 302(d)(7) of ERISA. To its knowledge, since the date of
the
most recent actuarial valuation, no event has occurred which
would
adversely change any such funded status. None of its Pension Plans
nor
any "single-employer plan," within the
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<PAGE>
meaning of Section 4001(a)(15) of ERISA, currently maintained by it
or
any of its Subsidiaries, or the single-employer plan of any
entity
which is considered one employer with it under Section 4001 of
ERISA or
Section 414 of the Internal Revenue Code or Section 302 of
ERISA
(whether or not waived) (an "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 any of its Pension Plans or any single-employer plan of
any
of its ERISA Affiliates have been timely made and there is no lien,
nor
is there 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. Neither it nor any of its Subsidiaries has provided,
or
is required to provide, security to any of its Pension Plans or to
any
single-employer plan of any of its ERISA Affiliates pursuant to
Section
401(a)(29) of the Internal Revenue Code.
(vi)
No Liability under Title IV of ERISA has
been or is expected to be incurred by it or any of its
Subsidiaries
with respect to any defined benefit plan currently or formerly
maintained by any of them or by any of its ERISA Affiliates that
has
not been satisfied in full (other than Liability for PBGC
premiums,
which have been paid when due).
(vii)
Except as disclosed in Section 4.3(k) of its
Disclosure Letter, neither it nor any of its Subsidiaries has
any
obligations for retiree health and retiree life benefits under any
of
its Compensation and Benefit Plans other than with respect to
benefit
coverage mandated by applicable Law.
(viii) There has
been no amendment to, announcement
by it or any of its Subsidiaries relating to, or change in
employee
participation or coverage under, any Compensation and Benefit
Plan
which would increase the expense of maintaining such plan above
the
level of the expense incurred therefor for the most recent fiscal
year.
None of the execution and delivery of this Agreement, the
shareholder
or stockholder approval of the transactions contemplated hereby or
the
consummation of the transactions contemplated hereby (A) result in
any
payment (including severance, golden parachute, or otherwise)
becoming
due to any director or any employee of it or any of its
Subsidiaries
from it or any of its Subsidiaries under any of its Compensation
and
Benefit Plans or otherwise, other than by operation of Law, (B)
increase any benefits otherwise payable under any of its
Compensation
and Benefit Plans, (C) result in any acceleration of the time
of
payment or vesting of any such benefit, (D) limit or restrict the
right
of it to merge, amend or terminate any of the Compensation and
Benefit
Plans or (E) result in payments under any Compensation and
Benefit
Plans which would not be deductible under Section 280G of the
Internal
Revenue Code.
(l) MATERIAL
CONTRACTS.
(i) Except for
Contracts reflected as exhibits
to its SEC Reports filed prior to the date of this Agreement, as of
the
date of this
Agreement, neither it nor any of 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, (A) any
Contract relating to the borrowing of money by it or any of its
Subsidiaries or the guarantee by it or any of its
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<PAGE>
Subsidiaries 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), (B) any Contract containing covenants that limit the
ability
of it or any of its Subsidiaries to compete in any line of business
or
with any Person, or that involve any restriction of the geographic
area
in which, or method by which, it or any of its Subsidiaries may
carry
on its business (other than as may be required by Law or any
Governmental Authority), (C) any other Contract or amendment
thereto
that would be required to be filed as an exhibit to any SEC Report
(as
described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under
the
1933 Act) that has not been filed as an exhibit to or incorporated
by
reference in its SEC Reports filed prior to the date of this
Agreement
or (D) any Contract that involves expenditures or receipts of it or
any
of its Subsidiaries in excess of $1,000,000 per year. With respect
to
each of its Contracts that are (A) reflected as an exhibit to any
SEC
Report, (B) would be required under Items 601(b)(4) and 601(b)(10)
of
Regulation S-K under the 1933 Act to be filed as an exhibit to any
of
its SEC Reports, or (C) that is disclosed in its Disclosure Letter:
(w)
each such Contract is in full force and effect; (x) neither it nor
any
of its Subsidiaries is in Default thereunder; (y) neither it nor
any of
its Subsidiaries has repudiated or waived any material provision of
any
such Contract; and (z) no other party to any such Contract is, to
its
knowledge, in Default in any material respect.
(ii)
All interest rate swaps, caps, floors,
option agreements, futures and forward contracts, and other
similar
risk management arrangements, whether entered into for its own
account
or for the account of one or more of its Subsidiaries or their
respective customers, were entered into (A) in accordance with
prudent
business practices and all applicable Laws and (B) with
counterparties
believed to be financially responsible, and each of them is
enforceable
against it or its Subsidiaries 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),
and is in full force and effect. Neither it nor any of its
Subsidiaries, nor to its knowledge, any other party thereto, is
in
Default of any of its obligations under any such agreement or
arrangement. Its Financial Statements disclose the value of
such
agreements and arrangements on a mark-to-market basis in
accordance
with GAAP (including but not limited to Financial Accounting
Statement
133) and, since September 30, 2003, there has not been a change in
such
value that, individually or in the aggregate, has resulted in a
Material Adverse Effect on it.
(m) LEGAL
PROCEEDINGS. There is no Litigation pending or,
to its knowledge, threatened against it or
any of its Subsidiaries, or against
any asset, interest, or right of any of
them nor are there any Orders of any
Governmental Authority or arbitrators
outstanding against it or any of its
Subsidiaries.
(n) REPORTS.
Since January 1, 2000, or the date of
organization if later, it and each of 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
any Governmental
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<PAGE>
Authority and all other reports and
statements required to be filed by them
since January 1, 2000, including any report
or statement required to be filed
pursuant to any Law have been so filed, and
it and each of its Subsidiaries have
paid all fees and assessments due and
payable in connection therewith.
(o)
INTELLECTUAL PROPERTY.
(i) It and its
Subsidiaries own, or are licensed
or otherwise possess sufficient legally enforceable rights to use,
all
Intellectual Property (including the Technology Systems) that is
used
by it and its Subsidiaries in their respective businesses as
currently
conducted.
Neither it nor any of its Subsidiaries has (A) licensed any
Intellectual Property owned by it or its Subsidiaries in source
code
form to any Person or (B) entered into any exclusive agreements
relating to Intellectual Property owned by it or its
Subsidiaries.
(ii)
It and its Subsidiaries have not infringed
or otherwise violated the Intellectual Property rights of any
third
Person since January 1, 2001. There is no claim asserted, or to
its
knowledge threatened, against it and its Subsidiaries or any
indemnitee
thereof concerning the ownership, validity, registerability,
enforceability, infringement, use or licensed right to use any
Intellectual Property.
(iii) No
third Person has infringed,
misappropriated or otherwise violated it or its Subsidiaries'
Intellectual Property rights since January 1, 2001. There are no
claims
asserted or threatened by it or its Subsidiaries, or decided by
them to
be asserted or threatened, that (A) a third Person infringed or
otherwise violated any of their Intellectual Property rights; or
(B) a
third Person's owned or claimed Intellectual Property interferes
with,
infringes, dilutes or otherwise harms any of their Intellectual
Property rights.
(iv)
It and its Subsidiaries have taken
reasonable measures to protect the confidentiality of all Trade
Secrets
that are owned, used or held by them.
(p) STATE
TAKEOVER LAWS. It has taken all action required
to be taken by it in order to exempt this
Agreement and the transactions
contemplated hereby from, and this
Agreement and the transactions contemplated
hereby are exempt from, the requirements of
any "moratorium," "control share,"
"fair price," "affiliate transaction,"
"anti-greenmail," "business combination"
or other antitakeover Laws of any
jurisdiction, including but not limited to (i)
in the case of Union Planters, Chapter 103
of Title 48 of the Tennessee Code,
and (ii) in the case of Regions, Section
203 of the DGCL (collectively,
"Takeover Laws"). It has taken all action
required to be taken by it in order to
make this Agreement and the transactions
contemplated hereby comply with, and
this Agreement and the transactions
contemplated hereby do comply with, the
requirements of any provisions of its
Organizational Documents concerning
"business combination," "fair price,"
"voting requirement," "constituency
requirement" or other related provisions,
including but not limited to (i) in
the case of Union Planters, the provisions
of Article Fourteenth of the Union
Planters Amended and Restated Charter and
(ii) in the case of Regions, the
provisions of Section (7) of Article
Seventh of the Regions Restated Certificate
of Incorporation.
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(q) BROKERS
AND FINDERS. Except for Morgan Stanley &
