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EXHIBIT 2.4
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STOCK PURCHASE AGREEMENT
AMONG
HOME BANCSHARES, INC.
AND
THE SHAREHOLDERS OF
MOUNTAIN VIEW BANCSHARES, INC.
AND
MOUNTAIN VIEW BANCSHARES, INC.
================================================================================
DATED AS OF APRIL 20, 2005
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TABLE OF CONTENTS
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RECITALS...................................................................
1
DEFINITIONS................................................................
2
ARTICLE I. STOCK
PURCHASE..................................................
7
1.1.
PURCHASE OF
SHARES................................................ 7
1.2.
CLOSING
DATE......................................................
7
1.3.
CLOSING...........................................................
8
ARTICLE II.
CONSIDERATION..................................................
8
2.1.
PURCHASE
PRICE....................................................
8
2.2.
MVBI
EARNINGS.....................................................
9
2.3.
SECURITIES LAW
EXEMPTION.......................................... 9
ARTICLE III. ACTIONS PENDING
CLOSING....................................... 10
3.1.
CAPITAL
STOCK.....................................................
10
3.2.
DIVIDENDS,
ETC....................................................
11
3.3.
INDEBTEDNESS;
LIABILITIES; ETC.................................... 11
3.4.
LINE OF BUSINESS;
OPERATING PROCEDURES; ETC....................... 11
3.5.
LIENS AND
ENCUMBRANCES............................................
11
3.6.
COMPENSATION;
EMPLOYMENT AGREEMENTS; ETC.......................... 11
3.7.
BENEFIT
PLANS.....................................................
11
3.8.
CONTINUANCE OF
BUSINESS........................................... 11
3.9.
AMENDMENTS........................................................
12
3.10.
CLAIMS............................................................
12
3.11.
CONTRACTS.........................................................
12
3.12.
LOANS.............................................................
12
ARTICLE IV. REPRESENTATIONS AND
WARRANTIES................................. 12
4.1.
REPRESENTATIONS AND
WARRANTIES OF SELLERS AND MVBI................ 12
4.2.
REPRESENTATIONS AND
WARRANTIES OF HBI............................. 23
ARTICLE V.
COVENANTS.......................................................
26
5.1.
BEST
EFFORTS......................................................
26
5.2.
PUBLICITY.........................................................
26
5.3.
ACCESS; DUE DILIGENCE
INFORMATION; CONFIDENTIALITY................ 26
5.4.
SOLE AGREEMENT TO
SELL............................................ 27
5.5.
NO RIGHTS
TRIGGERED...............................................
27
5.6.
REGULATORY
APPLICATIONS...........................................
27
5.7.
REGULATORY
DIVESTITURES...........................................
28
5.8.
CURRENT
INFORMATION...............................................
28
5.9.
DIRECTOR AND OFFICER
LIABILITY INSURANCE.......................... 28
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5.10. SHORT-YEAR
TAX RETURN.............................................
28
5.11. BMV
DEFINED BENEFIT PLAN..........................................
29
5.12. MVBI
INVESTMENT PORTFOLIO.........................................
29
5.13. CONTINUED
PARTICIPATION OF HINKLE AND SUTTON......................
29
5.14. MOUNTAIN
VIEW AVIATION, LLC.......................................
30
5.15. REAL
PROPERTIES OF MVBI...........................................
30
5.16.
RESERVATION OF RIGHT TO REVISE TRANSACTION........................
30
ARTICLE VI. CONDITIONS TO CONSUMMATION OF THE
MERGER....................... 30
6.1.
CONDITIONS TO EACH
PARTY'S OBLIGATIONS............................ 30
6.2.
CONDITIONS TO
OBLIGATIONS OF HBI.................................. 31
6.3.
CONDITIONS TO
OBLIGATIONS OF MVBI................................. 33
ARTICLE VII.
TERMINATION...................................................
34
7.1.
TERMINATION UPON
CERTAIN CONDITIONS............................... 34
7.2.
TERMINATION FOR
BREACH............................................ 36
ARTICLE VIII. SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION.. 36
8.1.
SURVIVAL OF
REPRESENTATIONS, WARRANTIES AND COVENANTS............. 36
8.2.
SELLERS'
INDEMNITY................................................
36
8.3.
HBI'S
INDEMNITY...................................................
36
8.4.
LIMITATIONS.......................................................
36
8.5.
DEFENSE OF THIRD PARTY
CLAIMS..................................... 37
ARTICLE IX. OTHER
MATTERS..................................................
38
9.1.
WAIVER;
AMENDMENT.................................................
38
9.2.
COUNTERPARTS......................................................
38
9.3.
GOVERNING
LAW.....................................................
38
9.4.
EXPENSES..........................................................
38
9.5.
NOTICES...........................................................
39
9.6.
SELLERS'
REPRESENTATIVES - APPOINTMENT OF AGENT...................
40
9.7.
TIME IS OF THE
ESSENCE............................................ 41
9.8.
ASSIGNMENT........................................................
41
9.9.
BINDING
EFFECT....................................................
41
9.10.
SEVERABILITY......................................................
41
9.11. ENTIRE
UNDERSTANDING; NO THIRD PARTY BENEFICIARIES................
41
9.12.
ENFORCEMENT PROCEEDINGS...........................................
41
9.13. BENEFIT
PLANS.....................................................
41
9.14.
HEADINGS..........................................................
42
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MVBI SCHEDULES
HBI SCHEDULES
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STOCK PURCHASE AGREEMENT
This
STOCK PURCHASE AGREEMENT, dated as of the 20th day of April,
2005
(this "Agreement"), is by and among Home BancShares, Inc. ("HBI"),
an Arkansas
corporation, the undersigned shareholders of Mountain View
Bancshares, Inc.
("SELLERS" or individually, a "SELLER") and Mountain View
Bancshares, Inc.
("MVBI"), an Arkansas corporation.
RECITALS
(A)
MVBI. MVBI is a corporation duly organized and existing in good
standing under the laws of the State of Arkansas, with its
principal executive
offices located in Mountain View, Arkansas. MVBI is a registered
bank holding
company under the Bank Holding Company Act of 1956, as amended. As
of December
31, 2004, MVBI had Capital (as hereafter defined) of $31,295,000,
divided into
common stock of $80,000, comprehensive income/surplus of
$12,923,000, and
retained earnings of $18,292,000. Since December 31, 2004, MVBI
paid a cash
dividend of $5,611,346.00. There are no options to purchase MVBI
Stock issued
and outstanding. As of the date of this Agreement, MVBI has 10,000
authorized
shares of common stock, $10.00 par value ("MVBI Stock"), of which
7,982 shares
are issued and outstanding (no other class of capital stock being
authorized),
and all of which are owned by Sellers.
(B)
BANK OF MOUNTAIN VIEW. Bank of Mountain View ("BMV") is an
Arkansas
state bank duly organized and existing in good standing under the
laws of the
State of Arkansas with its main office located in Mountain View,
Arkansas. As of
the date of this Agreement, BMV has 4,000 authorized shares of
common stock,
$25.00 par value per share (no other class of capital stock being
authorized),
of which 4,000 shares are issued and outstanding, and 100% owned by
MVBI.
(C)
HBI. HBI is a corporation duly organized and existing in good
standing
under the laws of the State of Arkansas, with its principal
executive offices
located in Conway, Arkansas. HBI is a financial holding company
subject to
regulation by the Federal Reserve Board (hereafter defined). As of
December 31,
2004, HBI had Capital of $106,610,000, divided into common stock of
$266,000,
preferred stock of $21,000, preferred treasury stock of $(569,000),
accumulated
other comprehensive loss of $(858,000), capital surplus of
$90,455,000 and
retained earnings of $17,295,000. As of the date of this Agreement,
HBI has
5,000,000 authorized shares of common stock, $0.10 par value ("HBI
Common
Stock"). On April 18, 2005, the common shareholders of HBI voted to
reduce the
par value of the HBI Common Stock to $0.01 per share and increase
the number of
authorized shares to 25,000,000. There are 3,915,230 shares of HBI
Common Stock
issued and outstanding. HBI has 5,500,000 authorized shares of
preferred stock,
$0.01 par value, of which 2,500,000 shares of Class A Preferred
Stock are
authorized and 2,134,068 are issued and outstanding, and 3,000,000
shares of
Class B Preferred Stock are authorized, and none are issued and
outstanding.
In
consideration of their mutual promises and obligations, the
Parties
further agree as follows:
1
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DEFINITIONS
(A)
DEFINITIONS. Capitalized terms used in this Agreement have the
following meanings:
"Accredited Investor" has the meaning assigned to such term in Rule
501
promulgated under the Securities Act.
"Acquisition" has the meaning assigned to such term in Section
1.1.
"Affiliate" means, with respect to any Person, any other Person
that,
directly or indirectly, through one or more intermediaries,
Controls, is
Controlled by, or is under common Control with such Person.
"Agreement" means this Stock Purchase Agreement, together with all
Exhibits
and Schedules annexed hereto, and incorporated by specific
reference, as a part
of this Agreement.
"Arkansas Resident" means:
(1) A corporation,
partnership, trust or other form of business
organization which has a principal office within the State of
Arkansas on the
date of execution of this Agreement and on the Closing Date.
(2) An individual whose principal residence is in the State of
Arkansas on the date of execution of this Agreement and on the
Closing Date.
(3) A corporation, partnership, trust or other form of business
organization which is organized for the specific purpose of
acquiring part of an
issue offered pursuant to this Agreement, of which all of the
beneficial owners
of such organization are residents of the State of Arkansas on the
date of
execution of this Agreement and on the Closing Date.
"Asset Classification" has the meaning assigned to such term in
Section
4.1(U).
"BMV" means Bank of Mountain View, as set forth in paragraph (B) of
the
Recitals.
"Business Day" means any day other than a Saturday, Sunday, or a
day on
which the HBI Banks are not open for business.
"Capital" means capital stock, surplus and retained earnings
determined in
accordance with GAAP. Unrealized gains or losses in investment
securities will
be included when determining Capital.
"Cash Consideration" has the meaning assigned to such term in
Section 2.1.
"Closing Date" has the meaning assigned to such term in Section
1.2.
"Code" has the meaning assigned to such term in Section
4.1(R)(2).
2
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"Compensation and Benefit Plans" has the meaning assigned to such
term in
Section 4.1(R)(1).
"Contract" has the meaning assigned to such term in Section
4.1(O).
"Control" with respect to any Person means the possession, directly
or
indirectly, of the power to direct or cause the direction of the
management and
policies of such Person, whether through the ownership of voting
interests, by
Contract, or otherwise.
"Derivatives Contract" means an exchange-traded or over-the-counter
swap,
forward, future, option, cap, floor or collar financial contract or
any other
contract that (1) is not included on the balance sheet of the
Financial Reports
of MVBI, and (2) is a derivative contract (including various
combinations
thereof).
"Earnings Calculation" has the meaning assigned to such term in
Section
2.2.
"Environmental Law" means (1) any federal, state, and/or local
law,
statute, ordinance, rule, regulation, code, license, permit,
authorization,
approval, consent, legal doctrine, order, judgment, decree,
injunction,
requirement or agreement with any governmental entity, relating to
(a) the
protection, preservation or restoration of the environment
(including air, water
vapor, surface water, groundwater, drinking water supply, surface
land,
subsurface land, plant and animal life or any other natural
resource) or to
human health or safety, or (b) the exposure to, or the use,
storage, recycling,
treatment, generation, transportation, processing, handling,
labeling,
production, release or disposal of Hazardous Material, in each case
as amended
and as now in effect, including the Federal Comprehensive
Environmental
Response, Compensation, and Liability Act of 1980, the Superfund
Amendments and
Reauthorization Act, the Federal Water Pollution Control Act of
1972, the
Federal Clean Air Act, the Federal Clean Water Act, the Federal
Resource
Conservation and Recovery Act of 1976 (including the Hazardous and
Solid Waste
Amendments thereto), the Federal Solid Waste Disposal and the
Federal Toxic
Substances Control Act, and the Federal Insecticide, Fungicide and
Rodenticide
Act, the Federal Occupational Safety and Health Act of 1970, and
(2) any common
law or equitable doctrine (including injunctive relief and tort
doctrines such
as negligence, nuisance, trespass and strict liability) that may
impose
Liability or obligations for injuries or damages due to, or
threatened as a
result of, the presence of or exposure to any Hazardous
Material.
"ERISA" has the meaning assigned to such term in Section
4.1(R)(2).
"ERISA Affiliate" has the meaning assigned to such term in
Section
4.1(R)(3).
"ERISA Plans" has the meaning assigned to such term in Section
4.1(R)(2).
"FDIC" means the Federal Deposit Insurance Corporation.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve
System.
"Financial Reports" (1) as to HBI, means its respective audited
consolidated balance sheets and the related statements of income,
changes in
shareholders' equity and cash flows for
3
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the fiscal years or periods ended December 31, 2002, December 31,
2003 and
December 31, 2004, unaudited consolidated balance sheets and the
related
statements of income, changes in shareholders' equity and cash
flows for the
three (3)-month period ended March 31, 2005, and all financial
reports filed or
to be filed by HBI, subsequent to December 31, 2004, in the form
filed with the
Federal Reserve Board, FDIC and the Arkansas State Bank Department
and (2) as to
MVBI, means its respective unaudited, compiled consolidated balance
sheets and
the related statements of income, changes in shareholders' equity
and cash flows
for the fiscal years or periods ended December 31, 2002, December
31, 2003 and
December 31, 2004, prepared in accordance with GAAP, unaudited
consolidated
balance sheets and the related statements of income, changes in
shareholders'
equity and cash flows for the three (3)-month period ended March
31, 2005 and
all financial reports filed or to be filed by MVBI subsequent to
December 31,
2004, in the form filed with the Federal Reserve Board, FDIC and
the Arkansas
State Bank Department; and as to BMV, means its call reports for
the fiscal
years ended December 31, 2002, December 31, 2003, and December 31,
2004.
"GAAP" means generally accepted accounting principles consistently
applied.
"Governing Documents" means the articles of incorporation, charter,
and
bylaws of the subject entity, including all amendments thereto.
"Hazardous Material" means any substance presently listed,
defined,
designated or classified as hazardous, toxic, radioactive or
dangerous, or
otherwise regulated, under any Environmental Law, whether by type
or quantity,
including any oil or other petroleum product, toxic waste,
pollutant,
contaminant, hazardous substance, toxic substance, hazardous waste,
special
waste or petroleum or any derivative or by-product thereof, radon,
radioactive
material, asbestos, asbestos containing material, urea formaldehyde
foam
insulation, lead and polychlorinated biphenyl.
"HBI" means Home BancShares, Inc., an Arkansas corporation and
registered
financial holding company as set forth in paragraph (C) of the
Recitals.
"HBI
Banks" means the following wholly-owned subsidiary banks of HBI:
First
State Bank, an Arkansas banking corporation with its principal
office in Conway,
Arkansas, Community Bank, an Arkansas banking corporation with its
principal
office in Cabot, Arkansas, Twin City Bank, an Arkansas banking
corporation with
its principal office in North Little Rock, and upon the closing of
the merger
between HBI and Marine Bancorp, Inc., Marine Bank of the Florida
Keys, a Florida
banking corporation with its principal office in Marathon,
Florida.
"HBI
Common Stock" has the meaning assigned to such term in paragraph
(C)
of the Recitals.
"HBI
Transaction" means: (1) a merger, consolidation or similar
transaction
involving HBI, where HBI is not the corporation surviving such
transaction or
where a change of Control of HBI is otherwise effected, or (2) the
disposition,
by sale, lease, exchange or otherwise, of assets or deposits of HBI
or any of
its significant Subsidiaries representing in either case 25% or
more of the
consolidated assets or deposits of HBI and its Subsidiaries, or (3)
the
issuance, sale or other disposition (including by way of merger,
consolidation,
share exchange or any similar
4
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transaction) of securities representing 25% or more of the voting
power of HBI
or any of its significant Subsidiaries other than the issuance of
HBI Common
Stock upon the exercise of then outstanding options or the
conversion of then
outstanding convertible securities of HBI.
"Hinkle" means James G. Hinkle.
"Indemnified Party" has the meaning assigned to such term in
Section
8.5(A).
"Indemnifying Party" has the meaning assigned to such term in
Section
8.5(A).
"Insured Depository Institution" has the meaning given it in the
Federal
Deposit Insurance Act, as amended, and applicable regulations under
such
statute.
"Intellectual Property Rights" has the meaning given such term in
Section
4.1(L).
"Knowledge" (and "Know" or "Known") means the actual (but not
the
constructive) knowledge of the individual or, if an entity, the
Chairman, Chief
Executive Officer, President, Chief Financial Officer, and Chief
Lending Officer
of the entity.
"Liability" means any debts, liabilities and obligations of the
Party,
whether the same shall be matured or un-matured; whether by
Contract or
otherwise, whether accrued, absolute, contingent or otherwise.
"Loan/Fiduciary Property" means any property owned or Controlled by
MVBI or
any of its Subsidiaries or in which MVBI or any of its Subsidiaries
holds a
security or other interest, and, where required by the context,
includes any
such property where MVBI or any of its Subsidiaries constitutes the
owner or
operator of such property, but only with respect to such
property.
"Losses" has the meaning assigned to such term in Section 8.2.
"Material" means, with respect to either Party, an event,
occurrence or
circumstance (including (i) the making of any provisions for
possible loan and
lease losses, write-downs of other real estate owned and taxes, and
(ii) any
breach of a representation or warranty contained in this Agreement
by such
Party) that (a) has or is reasonably likely to have a material
adverse effect on
or constitute a material adverse change in the financial condition,
results of
operations, business, future operations or prospects of such Party
or, as
applicable, its Subsidiaries, or (b) would impair such Party's
ability to
perform its obligations under this Agreement or the consummation of
any of the
transactions contemplated by this Agreement; provided, however that
the
occurrence of the following event or circumstance will not be
deemed "Material":
(i) acts of terrorism or war (whether or not declared); (ii) a
change in laws or
regulations applicable to either Party; or (iii) general business
or financial
condition effecting the commercial banking industry generally.
"MVBI" means Mountain View Bancshares, Inc., an Arkansas
corporation as set
forth in paragraph (A) of the Recitals.
"MVBI Earnings" has the meaning assigned to such term in Section
2.2.
5
<PAGE>
"MVBI Stock" has the meaning assigned to such term in paragraph (A)
of the
Recitals.
"Multiemployer Plans" has the meaning assigned to such term in
Section
4.1(R)(2).
"Participation Facility" means any loan facility in which MVBI or
any of
its Subsidiaries participates in the management and, where required
by the
context, includes the owner or operator of such facility.
"Party" means a party to this Agreement.
"Pension Plan" has the meaning assigned to such term in Section
4.1(R)(2).
"Person" means any individual, corporation (including any
non-profit
corporation), general or limited partnership, limited liability
company, joint
venture, estate, trust, association, organization, labor union,
governmental
body, or other entity.
"Purchase Price" means the price to be paid by HBI for the MVBI
Stock as
set forth in Section 2.1.
"Regulatory Authorities" means federal or state governmental
agencies,
authorities or departments (1) charged with the supervision or
regulation of
depository institutions or (2) engaged in the insurance of
deposits.
"Rights" means securities or obligations convertible into or
exchangeable
for, or giving any Person any right to subscribe for or acquire, or
any options,
calls or commitments relating to, shares of capital stock.
"Securities Act" means the Securities Act of 1933, as amended,
together
with the rules and regulations promulgated under such statute.
"Sellers' Representatives" means James G. Hinkle and Kenneth W.
Sutton, as
appointed pursuant to Section 9.6.
"Short-Year Return" has the meaning assigned to such term in
Section 5.10.
"Stock Consideration" has the meaning assigned to such term in
Section 2.1.
"Stock Restrictions" has the meaning assigned to such term in
Section 1.1.
"Subsidiary" means, with respect to any entity, each partnership,
limited
liability company, or corporation the majority of the outstanding
partnership
interests, membership interests, capital stock or voting power of
which is (or
upon the exercise of all outstanding warrants, options and other
rights would
be) owned, directly or indirectly, at the time in question by such
entity. For
the avoidance of doubt, a Subsidiary shall not include any entity
Controlled by
Sellers except MVBI and its Subsidiaries.
"Sutton" means Kenneth W. Sutton.
6
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"Tax
Returns" has the meaning assigned to such term in Section
4.1(BB).
"Taxes" means federal, state, local or foreign income, gross
receipts,
windfall profits, severance, property, production, sales, use,
license, excise,
franchise, employment, withholding or similar taxes imposed on the
income,
properties or operations of the respective Party or its
Subsidiaries, together
with any interest, additions, or penalties with respect thereto and
any interest
in respect of such additions or penalties.
"Termination Date" has the meaning assigned to such term in Section
5.1.
"Third Party" means any person or group and their respective
directors,
officers, employees, representatives, and agents other than HBI,
MVBI, or any of
their Subsidiaries, and their respective directors, officers,
employees,
representatives, and agents.
"Third Party Claim(s)"
has the meaning assigned to such term in Section
8.5.
(B)
GENERAL INTERPRETATION. Except as otherwise expressly provided in
this
Agreement or unless the context clearly requires otherwise, the
terms defined in
this Agreement include the plural as well as the singular; the word
"including"
means including without limitation; the words "hereof," "herein,"
"hereunder,"
"in this Agreement" and other words of similar import refer to this
Agreement as
a whole and not to any particular Article, Section or other
subdivision; and
references in this Agreement to Articles, Sections, Schedules, and
Exhibits
refer to Articles and Sections of and Schedules and Exhibits to
this Agreement.
Unless otherwise stated, references to Subsections refer to the
Subsections of
the Section in which the reference appears. All pronouns used in
this Agreement
include the masculine, feminine and neuter gender, as the context
requires. All
accounting terms used in this Agreement that are not expressly
defined in this
Agreement have the respective meanings given to them in accordance
with GAAP.
ARTICLE I. STOCK PURCHASE
1.1.
PURCHASE OF SHARES. Subject to the provisions of this Agreement,
on
the Closing Date, the Sellers agree to sell and convey to HBI one
hundred
percent (100%) of the MVBI Stock issued and outstanding on the
Closing Date for
the consideration set forth herein, free and clear of all liens,
encumbrances,
security agreements, equities, options, claims, charges, and
restrictions of any
kind or nature whatsoever ("Stock Restrictions") and HBI agrees to
purchase the
MVBI Stock from the Sellers upon the terms and conditions set forth
herein (the
"Acquisition").
1.2.
CLOSING DATE. Unless the Parties agree upon another date, the
"Closing
Date" will be the tenth (10th) Business Day after the fulfillment
or waiver of
each condition precedent set forth in, and the granting of each
approval (and
expiration of any waiting period) required by, ARTICLE VI. If the
Acquisition is
not consummated in accordance with this Agreement on or prior to
the Termination
Date, either Party may terminate this Agreement in accordance with
ARTICLE VII.
7
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1.3.
CLOSING. The closing ("Closing") of the Acquisition shall take
place
on the Closing Date at the offices of Mitchell, Williams, Selig,
Gates &
Woodyard, P.L.L.C., 425 West Capitol Avenue, Suite 1800, Little
Rock, Arkansas
72201.
(A) At the Closing, the Sellers will deliver to HBI all of the
issued
and outstanding shares of MVBI Stock, properly endorsed in blank,
with
signatures guaranteed in form and substance satisfactory to HBI.
Such shares
shall be fully paid and non-assessable, and shall be free and clear
of all Stock
Restrictions. If any certificate representing such shares have been
lost or
destroyed, then the holder of such shares shall, at HBI's option,
deliver at the
Closing an affidavit to that fact, or such indemnity as may be
acceptable to
HBI.
(B) HBI shall pay the Cash Consideration at the Closing in
immediately
available funds in Little Rock, Arkansas. The Stock Consideration
shall be paid
as validly issued, fully paid and non-assessable shares of HBI
Common Stock,
which shall bear the restrictive legend set forth in Section
2.3(B).
(C) If not paid prior to Closing, MVBI may distribute to its
shareholders at Closing MVBI's earnings, calculated in accordance
with GAAP, for
the period beginning January 1, 2005 and ending March 3, 2005. This
distribution
shall be in addition to the Purchase Price and the MVBI
Earnings.
ARTICLE II. CONSIDERATION
2.1.
PURCHASE PRICE. On the Closing Date, HBI shall pay to the Sellers
the
total amount of $43,750,000 represented $39,374,984 by payments in
cash (the
"Cash Consideration") and $4,375,016 by the issuance by HBI of
115,132 shares of
HBI Common Stock valued for purposes of the exchange at $38.00 per
share (the
"Stock Consideration").
(A) The Cash Consideration shall be distributed to the Sellers
pro
rata in proportion to their percentage of ownership of MVBI Stock,
after taking
into account in the portions to be paid to Hinkle and Sutton, the
Stock
Consideration paid to them.
(B) The Stock Consideration will be paid fifty percent (50%),
or
57,566 shares, to Hinkle and fifty percent (50%), or 57,566 shares,
to Sutton,
subject to the provisions of Section 2.2.
(1) If prior to the issuance of HBI Common Stock as Stock
Consideration, the outstanding shares of HBI Common Stock are
increased,
decreased, or are changed into a different number of shares or a
different
class by reason of any merger, recapitalization, reclassification,
stock
split, or similar transaction, or if a stock dividend shall be
paid, an
appropriate and proportionate adjustment or adjustments will be
made to the
number of shares to be issued as Stock Consideration so that the
full
amount of the Stock Consideration is paid.
(2) If, at any time during the period beginning on March 3,
2005
and
ending within twelve (12) months following the Closing Date, HBI
offers
its
Common
8
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Stock in (i) a public offering or (ii) as stock consideration for
the
purchase of stock or assets of a Third Party for a value less than
$38 per
share, such value being adjusted for any of the changes in HBI
Common Stock
set
forth in Section 2.1(B)(1), the number of shares of HBI Common
Stock
required to pay the Stock Consideration shall be adjusted, and,
within ten
(10)
Business Days after the completion of such offering, HBI shall
issue
to
each of Hinkle and Sutton such additional number of shares of HBI
Common
Stock (to the nearest whole
share) so that the full amount of the Stock
Consideration of $4,375,016 is paid.
For example: if HBI Common Stock is offered in a public
offering
at
$31 per share, the additional number of shares of HBI Common
Stock
required to satisfy the Stock Consideration would be calculated as:
the
Stock Consideration of $4,375,016 divided by the offering price of
$31, the
dividend of which is 141,129, then subtracting 141,129 from 115,132
(the
number of shares
issued on the Closing Date) yielding an additional 25,997
shares of HBI Common Stock, or 12,998 shares to each of Hinkle and
Sutton.
2.2.
MVBI EARNINGS. In addition to the Purchase Price, MVBI and
Sellers
agree that MVBI shall not distribute the earnings of MVBI for the
period from
March 4, 2005 through the Closing Date (the "MVBI Earnings") to
Sellers, but
instead agree that an additional Purchase Price amount equal to
one-half (1/2)
such earnings shall be paid by HBI to Sellers. In addition, MVBI
and Sellers
agree that neither MVBI nor Sellers shall make any adjustments to
the books and
records of MVBI (other than in the ordinary and usual course of
business
consistent with past practices or as required for legal or
regulatory purposes)
that will have the affect of increasing or inflating the MVBI
Earnings, without
the prior written consent of HBI. Within ten (10) Business Days
following the
Closing Date, HBI will calculate the MVBI Earnings in accordance
with GAAP and
then pay one-half (1/2) of such amount to the Sellers by bank check
pro rata in
proportion to their percentage of ownership of MVBI Stock.
Following this
determination of MVBI's Earnings, a written memorandum showing
that
determination shall be prepared by HBI and annexed to this
Agreement.
2.3.
SECURITIES LAW EXEMPTION. The offering of HBI Common Stock to
Hinkle
and Sutton is being made pursuant to an exemption from registration
under the
Securities Act and in compliance with Rule 147. Therefore, Hinkle
and Sutton, in
their individual capacities, as evidenced by their signatures at
the end of this
Agreement, each hereby represents and warrants to HBI that, on the
date of this
Agreement and as of the Closing Date, he:
(A) acknowledges that the shares HBI Common Stock to be issued
hereunder are not registered under the Securities Act, nor under
the Arkansas
Securities Act and further acknowledges that the HBI Common Stock
is being
offered and sold pursuant to exemptions from registration pursuant
to Section
3(a)(11) of the Securities Act and Rule 147 promulgated thereunder
and Section
23-42-503(a)(3) of the Arkansas Securities Act.;
(B) acknowledges that pursuant to the exemption provided under
Section
3(a)(11) of the Securities Act and Rule 147: (i) for a period of
nine (9) months
from the date of the original issuance of the HBI Common Stock to
him, the
Shares may only be resold to persons resident within the State of
Arkansas; (ii)
HBI will issue stop transfer instructions to its
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Exchange Agent prohibiting the transfer of shares in violation of
Rule 147, and
(iii) the shares so issued will bear the following restrictive
legend:
"The securities evidenced by this certificate have not been
registered
under the Securities Act of 1933 or the securities laws of the
state
of Arkansas and are being offered and sold in reliance on
exemptions
from the registration requirements of the Securities Act of 1933
and
the Arkansas Securities Act. The securities are subject to
restrictions on transferability and resale. During the period in
which
the securities are being offered and sold by the issuer, and for
a
period of nine (9) months from the date of the last sale by the
issuer
of the securities, all resales of any part of the securities shall
be
made only to persons resident within the state of Arkansas."
(C) is an Arkansas Resident in that his principal residence is
located
in Arkansas at the address set forth following his signature;
(D) is an Accredited Investor as that term is defined in
Section
2(a)(15) of the Securities Act and Rule 501(a) promulgated
thereunder, and (i)
is fully familiar with HBI's business, financial condition, and
operations,
prospects and future potential, (ii) has such other information,
financial and
otherwise, including all of the information he would be provided in
an offering
registered under the Securities Act, which he has deemed material
in formulating
a decision to acquire the HBI Common Stock on the terms and
conditions set forth
herein, and (iii) has had the opportunity to ask questions of and
receive
answers from HBI;
(E) is acquiring the HBI Common Stock for his own account, solely
for
investment purposes, and not for a view to resale of said HBI
Common Stock;
(F) is able to bear the economic risks of this investment; and
(G) acknowledges that the shares of HBI Common Stock acquired
hereunder will not be resold or otherwise transferred or assigned
without
compliance with the registration provisions of the Securities Act
and applicable
state blue sky laws or exemption therefrom.
ARTICLE III. ACTIONS PENDING CLOSING
Unless HBI otherwise agrees in writing between the date hereof and
the
Closing Date, the Sellers shall cause MVBI, and MVBI shall and
shall cause each
of its Subsidiaries to conduct its respective business in the
ordinary and usual
course consistent with past practice and shall use their respective
best efforts
to maintain and preserve MVBI's and each of its Subsidiaries'
business
organization, employees and advantageous business relationships and
retain the
services of MVBI's or, as applicable, its Subsidiaries' officers
and key
employees identified by HBI, and Sellers shall cause MVBI not to do
any of the
following, and MVBI shall not do, and shall cause BMV not to do any
of the
following, without the prior written consent of HBI:
3.1.
CAPITAL STOCK. Except as disclosed in Schedule 4.1(C), issue, sell
or
otherwise permit to become outstanding any additional shares of
capital stock of
MVBI or BMV,
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or any Rights with respect thereto, or enter into any agreement
with respect to
the foregoing, or permit any additional shares of MVBI Stock to
become subject
to grants of employee stock options, stock appreciation rights or
similar
stock-based employee compensation rights.
3.2.
DIVIDENDS, ETC. Except as permitted by Section 1.3(C), declare or
pay
any dividend on or in respect of, or declare or make any
distribution on, or
directly or indirectly combine, split, subdivide, redeem,
reclassify, purchase
or otherwise acquire, any shares of its capital stock or, other
than as
permitted in or contemplated by this Agreement, authorize the
creation or
issuance of, or issue, any additional shares of its capital stock
or any Rights
with respect thereto.
3.3.
INDEBTEDNESS; LIABILITIES; ETC. Other than in the ordinary and
usual
course of business consistent with past practice, incur any
indebtedness for
borrowed money, assume, guarantee, endorse or otherwise as an
accommodation
become responsible or liable for the obligations of any other
individual,
corporation or other entity.
3.4.
LINE OF BUSINESS; OPERATING PROCEDURES; ETC. Except as may be
directed
by any regulatory agency: (A) change its lending, investment,
liability
management or other Material banking policies in any Material
respect, or (B)
commit to incur any further capital expenditures beyond those
disclosed in
Schedule 3.4 or incurred in the ordinary and usual course of
business consistent
with past practices and not exceeding $15,000 individually or
$25,000 in the
aggregate.
3.5.
LIENS AND ENCUMBRANCES. Except as disclosed in Schedule 3.5 or
incurred in the ordinary and usual course of business consistent
with past
practices, subject any of its assets to a lien, charge, or
encumbrance
(including mortgage, pledge or security interest), or permit any
such lien,
charge or encumbrance to exist.
3.6.
COMPENSATION; EMPLOYMENT AGREEMENTS; ETC. Except as disclosed
in
Schedule 3.6, enter into or amend any employment, severance or
similar agreement
or arrangement with any of its directors, officers or employees, or
grant any
salary or wage increase, or increase any employee benefit
(including incentive
or bonus payments), except normal individual increases in regular
compensation
to officers or employees in the ordinary and usual course of
business consistent
with past practice.
3.7.
BENEFIT PLANS. Except as provided in Section 5.11, or as disclosed
in
Schedule 3.7, enter into or modify (except as may be required by
applicable law
or by this Agreement) any pension, retirement, stock option, stock
purchase,
savings, profit sharing, deferred compensation, consulting, bonus,
group
insurance or other employee benefit, incentive or welfare contract,
plan or
arrangement, or any trust agreement related thereto, in respect of
any of its
directors, officers or other employees, including taking any action
that
accelerates the vesting or exercise of any benefits payable
thereunder.
3.8.
CONTINUANCE OF BUSINESS. Except pursuant to Sections 5.13, 5.14
and
5.15, or as disclosed in Schedule 3.8, dispose of or discontinue
any portion of
its assets, business or properties, that is in excess of $25,000
individually or
$100,000 in the aggregate, or merge or consolidate with, or acquire
all or any
portion of, the business or property of any other entity
11
<PAGE>
(except foreclosures or acquisitions by BMV in its fiduciary
capacity, in each
case in the ordinary and usual course of business consistent with
past
practice).
3.9.
AMENDMENTS. Amend its Governing Documents.
3.10. CLAIMS. Settle any claim, litigation, action or proceeding
involving
any Liability for money damages in excess of $25,000 or Material
restrictions
upon the operations of MVBI or BMV.
3.11. CONTRACTS. Except as disclosed on Schedule 3.11, enter into,
renew,
terminate or make any change in any Contract (excluding agreements
and loans
permitted under Section 3.12) of a value or requiring payments
during the life
of the Contract, including all options, in excess of $25,000,
except in the
ordinary and usual course of business consistent with past practice
with respect
to Contracts that are terminable by it without penalty on no more
than 60 days
prior written notice.
3.12. LOANS. Extend credit or account for loans and leases other
than in
the ordinary and usual course of business of MVBI and in accordance
with written
lending policies and accounting practices in existence at the date
of the
execution of this Agreement, except that BMV shall not, without the
prior notice
and consultation with HBI's Chairman or President make any new loan
or renew any
existing loan in a principal amount in excess of $1,000,000.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
4.1.
REPRESENTATIONS AND WARRANTIES OF SELLERS AND MVBI. Each of the
Sellers and MVBI hereby represents and warrants to HBI, now and as
of the
Closing Date, as follows:
(A) RECITALS. The facts set forth in the Recitals of this
Agreement
with respect to MVBI and BMV are true and correct.
(B) ORGANIZATION, STANDING AND AUTHORITY. Each of MVBI, BMV, and
any
other Subsidiary of MVBI, is incorporated under the laws of the
State of
Arkansas, and is in good standing under the laws of the State of
Arkansas and is
duly qualified to do business and is in good standing in the states
of the
United States and foreign jurisdictions where the failure to be
duly qualified,
individually or in the aggregate, is reasonably likely to have a
Material effect
on it. All of such foreign jurisdictions are set forth on Schedule
4.1(B). Each
of MVBI, BMV, and any other Subsidiary of MVBI has in effect all
federal, state,
local and foreign governmental authorizations necessary for it to
own or lease
its properties and assets and to carry on its business as it is now
conducted.
BMV is the only Subsidiary of MVBI that is an Insured Depository
Institution,
and its deposits are insured by the Bank Insurance Fund of the
FDIC. Except as
disclosed in Schedule 4.1(B), BMV is not subject to any orders,
resolutions,
commitments, agreements, undertakings, understandings, or consents
that affect
its status as such Insured Depository Institution.
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<PAGE>
(C) SHARES. The outstanding shares of MVBI's and its
Subsidiaries'
capital stock are validly issued and outstanding, fully paid and
non-assessable,
and subject to no preemptive rights. Except as disclosed in
Schedule 4.1(C),
there are no shares of capital stock or other equity securities of
MVBI or its
Subsidiaries outstanding and no outstanding Rights with respect
thereto.
(D) MVBI SUBSIDIARIES. MVBI has disclosed on Schedule 4.1(D) a list
of
all of its Subsidiaries, and the number of authorized, issued, and
outstanding
shares of each class of stock and percentages of ownership of MVBI
or BMV. No
equity securities of BMV are or may become required to be issued
(other than to
MVBI or one of its Subsidiaries) by reason of any Rights with
respect thereto.
There are no Contracts, commitments, understandings or arrangements
by which any
of its Subsidiaries is or may be bound to sell or otherwise issue
any shares of
such Subsidiary's capital stock, and there are no Contracts,
commitments,
understandings or arrangements relating to the rights of MVBI or
its
Subsidiaries, as applicable, to vote or to dispose of such shares.
All of the
shares of capital stock of each of its Subsidiaries held by MVBI
are fully paid
and non-assessable and are owned by MVBI or one of its Subsidiaries
free and
clear of any Stock Restrictions. Except as disclosed in Schedule
4.1(D), MVBI
does not own beneficially, directly or indirectly, any shares of
any equity
securities or similar interests of any corporation, bank,
partnership, joint
venture, business trust, association or organization other than
BMV.
(E) CORPORATE POWER. Each of MVBI and its Subsidiaries has the
corporate power and authority to carry on its business as it is now
being
conducted and to own all its Material properties and assets.
(F) AUTHORITY. This Agreement, and each of the MVBI obligations
set
forth herein, has been authorized by all necessary corporate action
of MVBI. To
the extent any of the Sellers is an entity, this Agreement has been
duly
authorized by all necessary action of that entity. This Agreement
is a valid and
binding agreement of the Sellers and MVBI, enforceable against them
in
accordance with its terms, subject to bankruptcy, insolvency and
other laws of
general applicability relating to or affecting creditors' rights
and to general
equity principles.
(G) NO DEFAULTS. Subject to the required regulatory approvals
referred
to in Section 6.1, any required filings under federal and state
securities laws,
and, except as disclosed in Schedule 4.1(G), the execution,
delivery and
performance of this Agreement and the consummation by the Sellers
and MVBI of
the transactions contemplated by this Agreement do not and will not
Materially
(1) constitute a breach of, or violation of, or a default under,
any law, rule
or regulation or any judgment, decree, order, governmental permit
or license, or
agreement, indenture or instrument of the Sellers or MVBI or any of
its
Subsidiaries or to which the Sellers or MVBI or any of its
Subsidiaries or any
of their properties is subject or bound, or (2) constitute a breach
of, or
violation of, or a default under, the Governing Documents of MVBI
or any of its
Subsidiaries, or (3) require any consent or approval under any such
law, rule,
regulation, judgment, decree, order, governmental permit or license
or the
consent or approval of any other party to any such agreement,
indenture or
instrument.
(H) MVBI FINANCIAL REPORTS. Except as disclosed in Schedule
4.1(H),
the Financial Reports of each of MVBI and BMV: (1) did not and will
not contain
any untrue
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<PAGE>
statement of a Material fact or omit to state a Material fact
required to be
stated therein or necessary in order to make the statements made
therein, and in
light of the circumstances under which they were made, not
Materially
misleading; (2) each of the balance sheets in or incorporated by
reference into
the Financial Reports (including the related notes and schedules
thereto) are
correct, complete, and in accordance with the books and records of
and fairly
presents and will fairly present the financial position of the
entity or
entities to which it relates as of its date; (3) each of the
statements of
income and changes in shareholders' equity and cash flows or
equivalent
statements in the Financial Reports (including any related notes
and schedules
thereto) are correct, complete, and in accordance with the books
and records of
and fairly presents and will fairly present the results of
operations, changes
in shareholders' equity and cash flows, as the case may be, of the
entity or
entities to which it relates for the periods set forth therein; and
(4) in each
case in accordance with GAAP during the periods involved, except in
each case as
may be noted therein, subject to normal and recurring year-end
adjustments,
related notes and schedules in the case of such statements.
(I) ABSENCE OF UNDISCLOSED LIABILITIES. Neither MVBI nor any of
its
Subsidiaries has any Material Liability, except (1) as disclosed on
Schedule
4.1(I), (2) as reflected in its Financial Reports prior to the date
of this
Agreement, and (3) for commitments and obligations made, or
Liabilities
incurred, in the ordinary and usual course of business consistent
with past
practice since December 31, 2004 and which are fully reflected as
liabilities on
that entity's books and records. Except (x) as disclosed on
Schedule 4.1(I) and
(y) for commitments and obligations made, or Liabilities incurred,
in the
ordinary and usual course of business consistent with past practice
since
December 31, 2004 and which are fully reflected as liabilities on
that entity's
books and records, since December 31, 2004, neither MVBI nor any of
its
Subsidiaries has incurred or paid any Material Liability (including
any
Liability incurred in connection with any acquisitions in which any
form of
direct financial assistance of the federal government or any agency
thereof has
been provided to any Subsidiary).
(J) NO EVENTS. Except (x) as disclosed on Schedule 4.1(J) and (y)
for
events occurring in the ordinary and usual course of business
consistent with
past practice since December 31, 2004 and which are fully reflected
as
liabilities on that entity's books and records, since December 31,
2004, no
event has occurred that, individually or in the aggregate, is
reasonably likely
to have a Material effect on MVBI or any of its Subsidiaries.
(K) PROPERTIES. Except as disclosed in Schedule 4.1(K), MVBI and
each
of its Subsidiaries have good and marketable title, free and clear
of all liens,
encumbrances, charges, defaults, or equities of any character, to
all of the
properties and assets, tangible and intangible, reflected in the
Financial
Reports of MVBI as being owned by MVBI or its Subsidiaries as of
the dates
thereof. All buildings and all Material fixtures, equipment, and
other property
and assets that are held under leases or subleases by MVBI or any
of its
Subsidiaries are held under valid leases or subleases enforceable
in accordance
with their respective terms, other than any such exceptions to
validity or
enforceability as are disclosed on Schedule 4.1(K). Other than
month-to-month
leases on operating equipment, all leases and subleases are
identified on
Schedule 4.1(K), and except as disclosed on such schedule, are
fully
transferrable to HBI upon consummation of this Agreement. MVBI
further
represents, covenants and warrants that, except as disclosed in
Schedule 4.1(K),
taking their age and ordinary wear and tear into account, the
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<PAGE>
assets and properties of MVBI or any of its Subsidiaries are in
good operating
condition and repair and have been operated and maintained in the
ordinary and
usual course of business, consistent with past practice, other than
those items
of personal property not in use by MVBI or its Subsidiaries as of
the date
hereof.
(L) INTELLECTUAL PROPERTY RIGHTS. Schedule 4.1(L) lists all
patents,
patent rights, licenses, trade secrets, trademarks, service marks,
trademark
rights, trade names or trade name rights, copyrights, inventions
and other
intellectual property rights ("Intellectual Property Rights")
necessary for the
ownership and operation of the business of MVBI or any of its
Subsidiaries in
the manner in which the business has been historically and
currently owned and
operated by MVBI or its Subsidiaries. none of the Intellectual
Property Rights
interferes with, infringes upon, misappropriates, or violates any
intellectual
property rights of third parties, and neither Sellers nor MVBI nor
any of its
Subsidiaries has received any written charge, complaint, claim,
demand, or
notice alleging any such interference, infringement,
misappropriation, or
violation. To MVBI's Knowledge, no Third Party has interfered with,
infringed
upon, misappropriated, or violated any of the Intellectual Property
Rights.
Neither Sellers nor MVBI nor any of its Subsidiaries has received
any written
notice with respect to any outstanding injunction, judgment, order,
decree,
ruling, or charge relating to any item of the Intellectual Property
Rights, and
no action, suit, proceeding, hearing, investigation, charge,
complaint, claim,
or demand is pending or, to the Knowledge of the Sellers or MVBI or
any of its
Subsidiaries, is threatened which challenges the legality,
validity,
enforceability, use, or ownership of any of the Intellectual
Property Rights.
(M) LITIGATION; REGULATORY ACTION. Except as disclosed in
Schedule
4.l(M), no litigation, proceeding or controversy before any court
or
governmental agency is pending to the Knowledge of the Sellers or
MVBI against
MVBI or any of its Subsidiaries, including, without limitation, any
litigation,
proceedings, or controversies that allege claims under any fair
lending law or
other law relating to discrimination, including the Equal Credit
Opportunity
Act, the Fair Housing Act, the Community Reinvestment Act and the
Home Mortgage
Disclosure Act, or allege claims under any fair credit reporting
laws or laws
for the protection of non-public personal information, including
the Fair Credit
Reporting Act, and the Gramm-Leach-Bliley Act, and, to the
Knowledge of the
Sellers or MVBI, no such litigation, proceeding or controversy has
been
threatened; and except as disclosed in Schedule 4.1(M), neither
MVBI nor any of
its Subsidiaries or any of its or their Material properties or
their officers,
directors or Controlling persons is a party to or is subject to any
order,
decree, agreement, memorandum of understanding or similar
arrangement with, or a
commitment letter or similar submission to, any Regulatory
Authority or other
governmental authority, and neither Sellers nor MVBI nor any of its
Subsidiaries
has been advised by any of such Regulatory Authorities or other
governmental
authority that such authority is contemplating issuing or
requesting (or is
considering the appropriateness of issuing or requesting) any such
order,
decree, agreement, memorandum or understanding, commitment letter
or similar
submission.
(N) COMPLIANCE WITH LAWS. Except as disclosed in Schedule 4.1(N),
each
of MVBI and its Subsidiaries:
15
<PAGE>
(1) has all permits, licenses, authorizations, orders and
approvals of, and has made all filings, applications and
registrations
with, all Regulatory Authorities or other governmental authority
that are
required in order to permit it to own its businesses presently
conducted
and
that are Material to the business of it and its Subsidiaries, taken
as
a
whole; all such permits, licenses, certificates of authority,
orders and
approvals are in full force and effect and, to the Knowledge of the
Sellers
and
MVBI, no suspension or cancellation of any of them is threatened;
and
all
such filings, applications and registrations are current;
(2) has received no notification or communication from any
Regulatory Authority or other governmental authority or the staff
thereof
(a)
asserting that MVBI or any of its Subsidiaries is not in
compliance
with
any of the statutes, regulations or ordinances which such
Regulatory
Authority or governmental authority enforces, (b) threatening to
revoke any
license, franchise, permit or governmental authorization of MVBI or
any of
its
Subsidiaries, or (c) requiring any of MVBI or BMV (or any of
its
officers, directors or Controlling persons) to enter into a cease
and
desist order, agreement or memorandum of understanding (or
requiring the
board of directors thereof to adopt any resolution or policy);
(3) is not required to give prior notice to any federal banking
or
thrift agency of the proposed addition of an individual to its
Board of
Directors or the employment of an individual as a senior executive;
and
(4) BMV is in compliance in all Material respects with all fair
lending laws or other laws relating to discrimination, including
the Equal
Credit Opportunity Act, the Fair Housing Act, the Community
Reinvestment
Act
and the Home Mortgage Disclosure Act, and all fair credit
reporting
laws
and laws for the protection of non-public personal information,
including the Fair Credit Reporting Act, the Gramm-Leach-Bliley
Act, and
the
Fair and Accurate Credit Transaction Act.
(O) MATERIAL CONTRACTS. Except as disclosed in Schedule 4.1(O)
(and
with a true and complete copy of the document or other item in
question attached
to such schedule), none of MVBI or its Subsidiaries, nor any of
their respective
assets, businesses or operations, is a party to, or is bound or
affected by, or
receives benefits under, any written or oral contract, indenture,
agreement,
lease, standby letter of credit, mortgage, loan or commitment
("Contract") or
Contracts obligating it or them to pay more than $25,000 in any
year and which
cannot be terminated upon notice of sixty (60) days or less. Except
as disclosed
in Schedule 4.1(O), neither MVBI nor any of its Subsidiaries is in
default under
any such Contract to which it is a party, by which its respective
assets,
business or operations may be bound or affected, or under which it
or any of its
respective assets, business or operations receives benefits, and
there has not
occurred any event that, with the lapse of time or the giving of
notice or both,
would constitute such a default. Except as disclosed in Schedule
4.1(O), neither
MVBI nor any of its Subsidiaries is subject to or bound by any
Contract
containing covenants that limit the ability of MVBI or any of its
Subsidiaries
to compete in any line of business or with any Person or that
involve any
restriction of geographical area in which, or method by which, MVBI
or BMV may
16
<PAGE>
carry on its business (other than as may be required by law or any
applicable
Regulatory Authority).
(P) REPORTS. Since January 1, 2002 each of MVBI and BMV has filed
all
reports and statements, together with any amendments required to be
made with
respect thereto, that it was required to file with (1) the Arkansas
State Bank
Department, (2) the FDIC, (3) the Federal Reserve Board, and (4)
any other
Regulatory Authorities or other governmental authority having
jurisdiction with
respect to MVBI and its Subsidiaries. As of their respective dates
(and without
giving effect to any amendments or modifications filed after the
date of this
Agreement with respect to reports and documents filed before the
date of this
Agreement), each of such reports and documents, including the
financial
statements, exhibits and schedules thereto, complied in all
Material respects
with all of the statutes, rules and regulations enforced or
promulgated by the
Regulatory Authority with which they were filed and did not contain
any untrue
statement of a Material fact or omit to state any Material fact
necessary in
order to make the statements made therein, in light of the
circumstances under
which they were made, not Materially misleading.
(Q) BROKERS AND FINDERS. Except as set forth in Schedule
4.1(Q),
neither the Sellers nor MVBI, BMV, any of their Subsidiaries, nor
any of their
respective officers, directors or employees has employed any broker
or finder,
or agreed to pay any fees to any director or former director or
incurred any
Liability for any financial advisory fees, brokerage fees,
commissions or
finder's fees, and no broker or finder, or director or former
director of MVBI
and BMV, has acted directly or indirectly for the Sellers or MVBI
or any of its
Subsidiaries in connection with this Agreement or the transactions
contemplated
hereby.
(R) EMPLOYEE BENEFIT PLANS.
(1) Schedule 4.1(R)(1) contains a complete list of all bonus,
deferred compensation, pension, retirement, profit-sharing, thrift
savings,
employee stock ownership, stock bonus, stock purchase, restricted
stock and
stock option plans, all employment or severance contracts, all
medical,
dental, health and life insurance plans, all other employee benefit
plans,
Contracts or arrangements and any applicable "change of control" or
similar
provisions in any plan, Contract or arrangement maintained or
contributed
to
by MVBI or any of its Subsidiaries for the benefit of employees,
former
employees, directors, former directors or their beneficiaries
(the
"Compensation and Benefit Plans"). True and complete copies of
all
Compensation and Benefit Plans of MVBI and its Subsidiaries,
including any
trust instruments and/or insurance contracts, if any, forming a
part
thereof, and all amendments thereto, have been supplied to HBI.
(2) All "employee benefit plans" within the meaning of Section
3(3)
of the Employee Retirement Income Security Act of 1974, as
amended
("ERISA"), other than "multiemployer plans" within the meaning of
Section
3(37) of ERISA ("Multiemployer Plans"), covering employees or
former
employees of MVBI and
