|
<PAGE>
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
DATED AS OF NOVEMBER 16, 2004
BY AND AMONG
WILSON BANK HOLDING COMPANY,
WILSON BANK AND TRUST
AND
COMMUNITY BANK OF SMITH COUNTY
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE 1 THE
MERGER...........................................................................
1
1.1 The
Merger..............................................................................
1
1.2 The
Closing.............................................................................
1
1.3 Effective
Time..........................................................................
1
ARTICLE 2 CHARTER, BYLAWS, AND OFFICERS AND DIRECTORS OF THE
SURVIVING CORPORATION............. 2
2.1 Charter and
Bylaws......................................................................
2
2.2 Directors and Executive Officers of the Surviving
Corporation........................... 2
2.3 CBSC Board and
Branches.................................................................
2
ARTICLE 3 CONVERSION OF CBSC
STOCK.............................................................
2
3.1 Conversion of CBSC Common Stock in the
Merger........................................... 2
3.2 Surrender and Exchange of
Shares........................................................
2
3.3 Dividends; Transfer Taxes; Withholdings;
Escheat........................................ 3
3.4 No Fractional
Securities................................................................
4
3.5 No Further Rights; Closing of CBSC Transfer
Books....................................... 4
3.6 Dissenting
Shares.......................................................................
4
ARTICLE 4 REPRESENTATIONS AND WARRANTIES BY
CBSC............................................... 5
4.1 Organization, Good Standing and
Qualification........................................... 5
4.2
Authorization...........................................................................
5
4.3 Valid and Binding
Agreement.............................................................
5
4.4 No
Violation............................................................................
5
4.5
Capitalization..........................................................................
5
4.6 Title to Properties;
Encumbrances.......................................................
5
4.7 No Undisclosed
Liability................................................................
5
4.8 Compliance with Applicable
Law.......................................................... 6
4.9
Litigation..............................................................................
6
4.10 Contracts and
Commitments..............................................................
6
4.11 Brokerage
Fees.........................................................................
6
4.12 Corporate
Records......................................................................
6
4.13 Full
Disclosure........................................................................
7
ARTICLE 5 REPRESENTATIONS AND WARRANTIES BY PARENT AND THE
BANK................................ 7
5.1 Organization and Good
Standing..........................................................
7
5.2
Authorization...........................................................................
7
5.3 Valid and Binding
Agreement.............................................................
7
5.4 No
Violation............................................................................
7
5.5 Brokerage
Fees..........................................................................
7
5.6 Parent Common
Stock.....................................................................
7
5.7
Capitalization..........................................................................
8
5.8 Financial Reports and Securities
Documents.............................................. 8
5.9 Full
Disclosure.........................................................................
8
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
ARTICLE 6 COVENANTS AND AGREEMENTS OF
CBSC..................................................... 9
6.1 Conduct of Business Pending the
Closing................................................. 9
6.2 Access; Further
Assurances..............................................................
10
6.3
Schedules...............................................................................
10
6.4 Regulatory
Filings......................................................................
10
6.5 Consents and
Approvals..................................................................
11
ARTICLE 7 COVENANTS AND AGREEMENTS OF PARENT AND THE
BANK...................................... 11
7.1 Further
Assurances......................................................................
11
ARTICLE 8 CONDITIONS TO PARENT'S AND THE BANK'S
OBLIGATIONS.................................... 11
8.1 Representations and
Warranties..........................................................
11
8.2 Performance by the
CBSC.................................................................
11
8.3 Officer's
Certificate...................................................................
11
8.4 Shareholder
Approval....................................................................
11
8.5 Regulatory
Approvals....................................................................
11
8.6 No
Injunction...........................................................................
12
8.7 Consents and
Approvals..................................................................
12
8.8
Litigation..............................................................................
12
8.9 No Material Adverse Change; Due Diligence
Review........................................ 12
8.10 Fairness
Opinion.......................................................................
12
ARTICLE 9 CONDITIONS TO THE CBSC'S
OBLIGATIONS................................................. 12
9.1 Representations and
Warranties..........................................................
12
9.2
Performance.............................................................................
12
9.3 Officer's
Certificate...................................................................
12
9.4 No
Injunction...........................................................................
13
9.5 Adjustments to Book
Value...............................................................
13
9.6 Fairness
Opinion........................................................................
13
ARTICLE 10 TERMINATION OF
AGREEMENT............................................................
13
ARTICLE 11
MISCELLANEOUS.......................................................................
14
11.1
Survival...............................................................................
14
11.2
Expenses...............................................................................
14
11.3 Assignability; Parties in
Interest.....................................................
14
11.4 Entire Agreement;
Amendments...........................................................
14
11.5
Headings...............................................................................
15
11.6
Severability...........................................................................
15
11.7
Notices................................................................................
15
11.8 Governing
Law..........................................................................
15
11.9
Counterparts...........................................................................
15
EXHIBIT A
</TABLE>
ii
<PAGE>
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Agreement") made this 16th
day of
November, 2004 by and among WILSON BANK HOLDING COMPANY, a
Tennessee corporation
("Parent"), WILSON BANK AND TRUST, a state chartered bank
incorporated under the
laws of the State of Tennessee (the "Bank"), and COMMUNITY BANK
OF SMITH COUNTY,
a state chartered bank incorporated under the laws of the State
of Tennessee
("CBSC").
WHEREAS, the Boards of Directors of Parent, the Bank and CBSC
each have
determined that a business combination between Parent, the Bank,
and CBSC is in
the best interests of their respective companies and
shareholders and presents
an opportunity for their respective companies to achieve
long-term strategic and
financial benefits, and accordingly have agreed to effect the
merger provided
for herein upon the terms and subject to the conditions set
forth herein;
NOW, THEREFORE, in consideration of the foregoing, and of
the
representations, warranties, covenants, and agreements contained
herein, the
parties hereto hereby agree as follows:
ARTICLE 1
THE MERGER
1.1 THE MERGER. Subject to the terms and conditions of this
Agreement,
at the Effective Time, CBSC shall be merged with and into the
Bank in accordance
with the applicable provisions of the Tennessee Business
Corporation Act (the
"TBCA") (the "Merger"), the separate corporate existence of CBSC
shall cease and
the Bank shall survive and continue to exist as a corporation
incorporated under
the TBCA and as a wholly owned subsidiary of Parent (the Bank,
as the surviving
corporation in the Merger, sometimes being referred to herein as
the "Surviving
Corporation"). The Merger shall be consummated pursuant to the
terms of this
Agreement, which has been approved and adopted by the respective
Boards of
Directors of Parent, the Bank and CBSC.
1.2 THE CLOSING. Subject to the terms and conditions of this
Agreement,
the closing of the Merger (the "Closing") shall take place at
the offices Bass,
Berry & Sims PLC, 315 Deaderick Street, Suite 2700,
Nashville, TN 37238, at
10:00 a.m., local time, on March 31, 2005 or, if later, the
first business day
immediately following the day on which the last to be fulfilled
or waived of the
conditions set forth in Articles 8 and 9 shall be fulfilled or
waived in
accordance herewith or at such other time, date, or place as
Parent and CBSC may
agree. The date on which the Closing occurs is hereinafter
referred to as the
"Closing Date."
1.3 EFFECTIVE TIME. If all the conditions to the Merger set
forth in
Articles 8 and 9 shall have been fulfilled or waived in
accordance herewith and
this Agreement shall not have been terminated as provided in
Article 10, the
parties hereto shall cause Articles of Merger, in substantially
the form
attached hereto as Exhibit A, to be properly executed and filed
in accordance
with the applicable provisions of the TBCA on the Closing Date.
The Merger shall
become effective upon the filing of the Articles of Merger with
the Secretary of
State of the State of Tennessee, or at such later time that the
parties hereto
shall have agreed upon and designated in such filings as the
effective time of
the Merger (the "Effective Time").
1
<PAGE>
ARTICLE 2
CHARTER, BYLAWS, AND OFFICERS AND DIRECTORS OF THE SURVIVING
CORPORATION
2.1 CHARTER AND BYLAWS. The Charter and Bylaws of the
Surviving
Corporation immediately after the Merger shall be the Charter
and Bylaws of the
Bank in effect immediately prior to the Merger.
2.2 DIRECTORS AND EXECUTIVE OFFICERS OF THE SURVIVING
CORPORATION. The
directors and executive officers of the Surviving Corporation
immediately after
the Merger shall be the directors and executive officers of the
Bank immediately
prior to the Merger, each of whom shall serve until such time as
their
successors shall be duly elected and qualified.
2.3 CBSC BOARD AND BRANCHES. After the Merger, the directors of
CBSC
shall become members of the CBSC Community Board, shall meet
monthly to provide
advice regarding CBSC operations to the Board of Directors of
the Bank and shall
be compensated therefore in the same amount as previously
compensated as
directors of CBSC. The branches of CBSC after the Merger shall
operate as
"Community Bank of Smith County", an office of Wilson Bank and
Trust."
ARTICLE 3
CONVERSION OF CBSC STOCK
3.1 CONVERSION OF CBSC COMMON STOCK IN THE MERGER. At the
Effective
Time, by virtue of the Merger and without any action on the part
of any holder
of any capital stock of CBSC, each issued and outstanding share
of common stock
of CBSC ("CBSC Common Stock") shall be converted into and become
a number of
shares of Parent common stock ("Parent Common Stock"), equal to
the quotient of
the (i) book value per share of the CBSC Common Stock at
December 31, 2004
divided by (ii) the book value per share of the Parent Common
Stock, at December
31, 2004, as such book values may be adjusted by Professional
Bank Services,
Inc. ("PBS") (the "Merger Consideration"). No fractional shares
shall be issued
and in lieu thereof, a cash payment shall be made pursuant to
Section 3.4
hereof.
3.2 SURRENDER AND EXCHANGE OF SHARES.
(a) The Bank shall act as Exchange Agent hereunder (the
"Exchange
Agent"). Prior to Effective Time, Parent shall deposit with or
for the account
of the Exchange Agent stock certificates representing the number
of shares of
Parent Common Stock issuable pursuant to Section 3.1 in exchange
for outstanding
shares of CBSC Common Stock, which shares of Parent Common Stock
shall be deemed
to have been issued at the Effective Time and which certificates
shall be
returned to Parent if such Effective Time does not occur.
(b) As soon as practicable after the Effective Time (but not
later
than the first business day after the Effective Time), Parent
shall cause the
Exchange Agent to mail to each holder of record of a certificate
or certificates
which immediately prior to the Effective Time represented
outstanding shares of
CBSC Common Stock (the "Certificates") that were converted
pursuant to Section
3.1 into the right to receive shares of Parent Common Stock (i)
a form of letter
of transmittal specifying that delivery shall be effected, and
risk of loss and
title to the Certificates shall pass, only upon proper delivery
of the
Certificates to the Exchange Agent and (ii) instructions for use
in surrendering
such Certificates in exchange for certificates representing
shares of Parent
Common Stock and any cash in lieu of fractional shares of Parent
Common Stock.
Upon surrender of a Certificate for cancellation to the Exchange
Agent, together
with such letter of transmittal, duly
2
<PAGE>
executed, and such other documents as may be reasonably required
by the Exchange
Agent, the holder of such Certificate shall be entitled to
receive in exchange
therefor (x) a certificate representing that number of whole
shares of Parent
Common Stock which such holder has the right to receive pursuant
to the
provisions of this Article 3 and (y) cash in lieu of any
fractional shares of
Parent Common Stock to which such holder is entitled pursuant to
Section 3.4,
after giving effect to any required tax withholdings, and the
Certificate so
surrendered shall forthwith be canceled. In the event of a
transfer of ownership
of CBSC Common Stock which is not registered in the transfer
records of the
CBSC, a certificate representing the proper number of shares of
Parent Common
Stock may be issued to a transferee if the Certificate
representing such CBSC
Common Stock is presented to the Exchange Agent, accompanied by
all documents
required to evidence and effect such transfer, and by evidence
that any
applicable stock transfer taxes have been paid. Until
surrendered as
contemplated by this Section 3.2(b), each Certificate shall be
deemed at any
time after the Effective Time to represent only the right to
receive upon such
surrender a certificate representing shares of Parent Common
Stock and cash in
lieu of any fractional shares of Parent Common Stock as
contemplated by this
Article 3. In no event will the holder of any such surrendered
Certificate be
entitled to receive interest on any cash to be received in lieu
of fractional
shares.
(c) If any Certificate shall have been lost, stolen or
destroyed,
upon the making of an affidavit of that fact by the person
claiming such
Certificate to be lost, stolen or destroyed and, if reasonably
required by
Parent, the posting by such person of a bond, in such reasonable
and customary
amount as Parent may direct, as indemnity against any claim that
may be made
against it with respect to such Certificate, the Exchange Agent
will issue the
corresponding Certificate representing Parent Common Stock to
which the person
is entitled to hereunder in exchange for such lost, stolen or
destroyed
Certificate.
3.3 DIVIDENDS; TRANSFER TAXES; WITHHOLDINGS; ESCHEAT. No
dividends or
distributions that are declared on shares of Parent Common Stock
after the
Effective Time will be paid to persons entitled to receive
certificates
representing shares of Parent Common Stock until such persons
surrender their
Certificates. Subject to applicable law, upon such surrender,
there shall be
paid, to the person in whose name the certificates representing
such shares of
Parent Common Stock shall be issued, any dividends or
distributions with respect
to such shares of Parent Common Stock which have a record date
after the
Effective Time and shall have become payable between the
Effective Time and the
time of such surrender. In no event shall the person entitled to
receive such
dividends or distributions be entitled to receive interest
thereon. As soon as
practicable following the date which is six months after the
Effective Time, the
Exchange Agent shall deliver to the Surviving Corporation all
cash, certificates
and other documents in its possession relating to the
transactions described in
this Agreement, and any holders of CBSC Common Stock who have
not theretofore
complied with this Article 3 shall look thereafter only to the
Surviving
Corporation for the shares of Parent Common Stock, any dividends
or
distributions thereon, and any cash in lieu of fractional shares
thereof to
which they are entitled pursuant to this Article 3.
Notwithstanding the
foregoing, neither the Exchange Agent nor any party hereto shall
be liable to a
holder of CBSC Common Stock for any shares of Parent Common
Stock, any dividends
or distributions thereon or any cash in lieu of fractional
shares thereof
delivered to a public official pursuant to applicable abandoned
property,
escheat or similar laws upon the lapse of the applicable time
periods provided
for therein. Parent or the Exchange Agent shall be entitled to
deduct and
withhold from the consideration otherwise payable pursuant to
this Agreement to
any holder of a Certificate such amounts as Parent or the
Exchange Agent are
required to deduct and withhold under the Code or any provision
of state, local
or foreign tax law with respect to the making of such payment.
To the extent
that amounts are so withheld by Parent or the Exchange Agent,
such withheld
amounts shall be treated for all purposes of this Agreement as
having been paid
to the holder of the Certificate in respect of whom such
deduction and
withholding were made by Parent or the Exchange Agent.
3
<PAGE>
3.4 NO FRACTIONAL SECURITIES. No certificates or scrip
representing less
than one whole share of Parent Common Stock shall be issued
pursuant to this
Agreement. In lieu of any such fractional share, each holder of
record of CBSC
Common Stock who would otherwise have been entitled to such
fractional shares of
Parent Common Stock shall be paid cash (without interest) in an
amount equal to
the fractional share amount to which such holder would be
otherwise entitled
multiplied by the closing sale price of Parent's Common Stock on
the date
closest to, but not after, the Closing Date. As soon as
practicable after the
determination of the amount of cash to be paid to the holders of
CBSC Common
Stock in lieu of any fractional share interests, the Exchange
Agent shall make
available in accordance with this Agreement such amounts to such
holders. The
fractional Parent Common Stock interests of each such holder
will be aggregated,
and no such holder will receive cash in an amount equal to or
greater than the
value of one whole share of Parent Common Stock.
3.5 NO FURTHER RIGHTS; CLOSING OF CBSC TRANSFER BOOKS. All
shares of
Parent Common Stock issued pursuant to this Article 3 shall be
deemed to have
been issued and paid in full satisfaction of all rights
pertaining to the
corresponding shares of CBSC Common Stock, subject, however, to
the Surviving
Corporation's obligation to pay any dividends or make any other
distributions
with a record date prior to the Effective Time which may have
been declared or
made by CBSC on such shares of CBSC Common Stock in accordance
with the terms of
this Agreement or prior to the date of this Agreement and which
remain unpaid at
the Effective Time. At the Effective Time, the stock transfer
books of CBSC
shall be closed and no transfer of shares of CBSC Common Stock
shall thereafter
be made on such stock transfer books. If, after the Effective
Time, Certificates
are presented to the Surviving Corporation, they shall be
canceled and exchanged
as provided in this Article 3; provided, however, if any
Certificate has not
been surrendered prior to five years after the Effective Time
(or immediately
prior to such earlier date on which Parent Common Stock or any
dividends or
distributions with respect to Parent Common Stock as
contemplated by Section 3.5
in respect of such Certificate would otherwise escheat to or
become the property
of any Government), any such shares, cash, dividends or
distributions in respect
of such Certificate shall, to the extent permitted by applicable
law, become the
property of the Surviving Corporation, free and clear of all
claims or interest
of any person previously entitled thereto.
3.6 DISSENTING SHARES. Each outstanding share of CBSC Common
Stock the
holder of which has perfected his right to dissent under the
Tennessee Business
Corporation Act (the "TBCA") and has not effectively withdrawn
or lost such
right as of the Effective Time (the "Dissenting Shares") shall
not be converted
into or represent a right to the Merger Consideration hereunder,
and the holder
thereof shall be entitled only to such rights as are granted by
the TBCA. CBSC
shall give Parent prompt notice upon receipt by CBSC of any such
written demands
for payment of the fair value of such shares of CBSC Common
Stock and of
withdrawals of such demands and any other instruments provided
pursuant to the
TBCA. If any holder of Dissenting Shares shall fail to perfect
or shall have
effectively withdrawn or lost the right to dissent at or prior
to the Effective
Time, the Dissenting Shares held by such holder shall be
converted into a right
to receive the Merger Consideration in accordance with the
applicable provisions
of this Agreement. If any holder of Dissenting Shares shall have
effectively
withdrawn or lost the right to dissent (through failure to
perfect or otherwise)
after the Effective Time, the Dissenting Shares held by such
holder shall be
converted on a share by share basis into the Merger
Consideration in accordance
with the applicable provisions of this Agreement as Parent or
the Exchange Agent
shall determine. Any payments made in respect of Dissenting
Shares shall be made
by the Surviving Corporation.
4
<PAGE>
ARTICLE 4
REPRESENTATIONS AND WARRANTIES BY CBSC
CBSC hereby represents and warrant as follows:
4.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. CBSC is a
state
chartered bank duly organized, validly existing and in good
standing under the
laws of the State of Tennessee. CBSC has full corporate power
and authority to
carry on its business as now conducted and possesses all
governmental and other
permits, licenses and other authorizations to own, lease or
operate its assets
and properties as now owned, leased and operated and to carry on
its business as
presently conducted, except where failure to possess such
permit, license or
other authorization could not reasonably be expected to have a
material adverse
effect on the business, results of operations, prospects or
financial condition
("Material Adverse Effect") of CBSC.
4.2 AUTHORIZATION. The Board of Directors of CBSC has taken all
action
required by law, its respective Charter, Bylaws and otherwise to
authorize the
execution and delivery by CBSC of this Agreement and the
consummation by CBSC of
the transactions contemplated hereby.
4.3 VALID AND BINDING AGREEMENT. This Agreement constitutes a
valid and
binding agreement of CBSC, enforceable against CBSC in
accordance with its terms
subject to bankruptcy, insolvency, reorganization, moratorium,
fraudulent
transfer and similar laws of general applicability relating to
or affecting
creditors' rights and as to general equity principles.
4.4 NO VIOLATION. Except as set forth on Schedule 4.4, the
execution and
delivery of this M
| 
