Exhibit 10.1
STOCK PURCHASE
AGREEMENT
by and
between
TOMBIGBEE
BANCSHARES, INC.
and
BANCTRUST FINANCIAL
GROUP, INC.
dated April 7,
2005
STOCK PURCHASE
AGREEMENT
This Stock Purchase Agreement ("Agreement"), dated the 7th day of
April, 2005, has been entered into by and between TOMBIGBEE
BANCSHARES, INC., an Alabama corporation ("Buyer"), and
BANCTRUST FINANCIAL GROUP, INC., an Alabama corporation
("Seller").
RECITALS
Seller is the beneficial and record owner of all the issued and
outstanding shares of the capital stock (hereinafter referred to as
the "Shares") of SWEET WATER STATE BANK , an Alabama state
bank (the "Bank"), which it desires to sell and convey to Buyer,
and Buyer desires to acquire and purchase the Shares from Seller,
all upon the terms and subject to the conditions set forth in this
Agreement (the "Acquisition").
NOW THEREFORE, in consideration of these premises and the
undertakings described herein, the parties hereto, intending to be
legally bound hereby, agree as follows:
ARTICLE I
PURCHASE AND SALE OF
SHARES
1.01
Purchase and Sale of Shares . Subject to and in
accordance with the terms of this Agreement, at the Closing, as
defined in Section 1.03, Seller shall sell, assign, transfer and
deliver unto Buyer all the Shares, free and clear of any and all
liens, claims, rights of third parties, charges or encumbrances of
any kind or character whatsoever, and Buyer shall acquire and
purchase the Shares from Seller for the sum in cash of Six Million
Five Hundred Thousand Dollars ($6,500,000.00) (the "Purchase
Price").
1.02
Delivery of Stock Certificates . At the Closing,
Seller shall deliver to Buyer valid stock certificates issued by
the Bank evidencing the Shares duly endorsed in blank. The stock
certificates shall be in such form and content as counsel to Buyer
may reasonably require.
1.03
Closing and Closing Date . The sale and delivery of
the Shares to Buyer, the payment of the Purchase Price to Seller
and the consummation of the other transactions contemplated hereby
to occur contemporaneously therewith (herein called the "Closing")
shall take place at the offices of Seller's Counsel on that
business day which is the fifth business day immediately following
the date of expiration of the statutory and regulatory waiting
periods referenced in Section 7.01 hereof, provided all the other
conditions described in Article VII below, to the extent not
waived, have been satisfied, or at such other place, time or date
as the parties hereto may hereafter agree to in writing (the date
of Closing being herein referred to as the "Closing Date").
ARTICLE II
INVESTIGATION OF
BANK
2.01 Access to
Records . Between the date hereof and the Closing Date,
Seller shall give to Buyer and Buyer's counsel, accountants and
other representatives full access during normal business hours to
all the properties, documents, contracts and records of Bank
relating to its assets or operations and shall furnish Buyer with
copies of such documents, contracts and records and with such
information with respect thereto as Buyer may from time to time
reasonably request ("Due Diligence Information"). At Closing, Buyer
will furnish to Seller, the following written acknowledgement:
"Buyer acknowledges that Seller has provided Buyer with all
requested information, including all Due Diligence Information,
with full and complete access to the records and personnel of the
Bank, and with the opportunity to ask questions and receive
answers, to any and all inquiries or questions of Buyer in
connection with the Acquisition," provided that exceptions, if
appropriate, may be noted in writing.
2.02
Confidentiality .
(a)
Neither party will disclose the negotiations or the status of the
Acquisition without the express consent of the other party, other
than to those of its affiliates, directors, officers, employees,
lenders, regulatory authorities, investment bankers, attorneys,
accountants, or other advisors or agents (its "Representatives")
who have a need to know such information for the purpose of the
Acquisition, except as may be required by law.
(b)
Buyer will use the Due Diligence Information solely for the purpose
of its due diligence investigations of Bank, and unless and until
the parties consummate the Acquisition, Buyer and its
Representatives will keep the Due Diligence Information strictly
confidential. Buyer will disclose the Due Diligence Information
only to those of its Representatives who need to know such
information for the purposes of the Acquisition. Buyer agrees to be
responsible for any breach of this Section 2.02 by any of its
Representatives. Buyer also will not use any Due Diligence
Information to compete with Seller in the event that this
Acquisition is not consummated.
(c)
It is understood and agreed that either party would be irreparably
injured by a breach of this Section 2.02 by the other party or its
or their Representatives, that money damages would not be a
sufficient remedy for any such breach and that the injured party
shall be entitled to equitable relief, including injunctive relief
and specific performance, as a remedy for any such breach (which
shall not be the exclusive remedy for any such breach of this
Agreement). The injured party shall further be entitled to
reasonable attorney's fees and other costs reasonably incurred to
remedy any and all breaches by the other party or its
Representatives of this Section 2.02.
(d)
The provisions of this Section 2.02 shall survive the termination
of this Agreement and shall be binding upon the successors and
assigns of each party. The provisions of this Section 2.02 are in
addition to and not in lieu of any of the requirements or remedies
set forth in the confidentiality letter agreement (the
"Confidentiality Agreement") between Seller and certain
shareholders of Buyer dated September 29, 2004, which Seller and
Buyer each adopts as its own as if executed by it as of the date of
this Agreement. In the event of any conflict between the provisions
of this Agreement and the Confidentiality Agreement, the terms of
this Agreement shall prevail.
2.03
Return of Documents . If the Closing is not
consummated and this Agreement is terminated, Buyer shall promptly
return all documents, contracts or records of Bank furnished to it
by Seller, without retaining any copies or summaries thereof, and
shall refrain from using any such documents, contracts and records,
or any information obtained therefrom, to compete with Seller.
ARTICLE III
REPRESENTATIONS AND
WARRANTIES OF SELLER
Notwithstanding any
independent investigation or verification undertaken by the Buyer,
or its Representatives, Seller hereby represents and warrants to
Buyer the following:
3.01
Organization and Corporate Power . Seller is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Alabama having all corporate power
and authority necessary to own its property and operate its
businesses as now conducted. Seller has all corporate power,
authority and legal right necessary to execute and deliver this
Agreement and, subject to receipt of the required regulatory
actions, approvals and consents described in Section 3.16 hereof,
to perform and carry out the Acquisition pursuant to the terms and
conditions of this Agreement.
3.02
Authorization and Effect . This Agreement and the
performance of the actions provided for herein have been duly and
validly authorized by all necessary corporate action on the part of
Seller. This Agreement has been executed and delivered by duly
authorized and acting officers of Seller, and assuming the due
authorization, execution and delivery of this Agreement by Buyer,
constitutes a legal, valid and binding obligation of Seller,
enforceable in accordance with its terms except as such may be
limited by bankruptcy, insolvency, reorganization or other laws
generally affecting the enforcement of creditors' rights or by
applicable principles of equity if equitable remedies are sought.
Other than the regulatory actions, approvals and consents referred
to in Section 3.16 hereof, no authorization or approval from any
party, governmental agency, public or quasi-public body or
authority of the United States, or any state thereof, is necessary
for the due execution and delivery by Seller of this Agreement, or
for the validity or enforceability of all the provisions of this
Agreement against Seller, or for the sale or delivery of the Shares
to Buyer, or any other action on the part of the Seller or Bank, or
any affiliate of Seller, contemplated by this Agreement.
3.03
Title to Shares and Power to Convey . Seller is the
record and beneficial owner of all the issued and outstanding
shares of the capital securities of the Bank and has, or will have
by the time of Closing, good and marketable title to the Shares
free and clear of any and all liens, claims, rights of third
parties, charges or encumbrances of any kind or character
whatsoever. Seller has, or will have by the time of Closing, full
right, power and authority to sell the Shares as provided herein,
subject only to receipt of the approvals and consents referred to
in Section 3.16 hereof. The execution and delivery of this
Agreement by Seller, the consummation of the transactions herein
contemplated and the fulfillment of the terms and conditions
hereof, when taken either singly or in the aggregate, will not
conflict with or result in a breach or violation of any applicable
law, regulation, order, writ, judgment, injunction or decree of any
court, agency or governmental instrumentality, or of any term,
condition or provision of, or constitute a default (or an event
which, with notice or lapse of time or both, would constitute a
default) under or pursuant to the charter, articles of
incorporation or by-laws of the Seller or Bank, or any indenture,
mortgage, agreement or other instrument to which the Seller or
Bank, or any affiliate of the Seller, is a party or by which they
or any of them may be or are bound.
3.04
Organization, Corporate Power and Licensing . The
Bank is duly organized, validly existing and in good standing under
the laws of Alabama, possessing all corporate power and authority
necessary to own its properties and carry on its business as now
conducted. The Bank is properly licensed and in good standing in
the State of Alabama where it currently is doing business. The Bank
has all licenses, permits or other authorizations from governmental
authorities necessary or advisable to operate its business as now
conducted, and such licenses, permits and authorizations are
currently in full force and effect.
3.05
Capital Stock of the Bank . The authorized capital
stock of the Bank consists solely of 30,000 shares of voting common
stock, par value $1.00 per share, of which 30,000 shares are issued
and outstanding, all being owned of record and beneficially by
Seller free and clear of any and all liens, claims, rights of third
parties, charges or encumbrances of any kind or character
whatsoever. The Shares as of the date of this Agreement are not
subject to any restriction with respect to their transferability
other than those regulatory approvals and consents referred to in
Section 3.16 hereof. Upon the transfer and delivery of the Shares
to Buyer at Closing, as herein contemplated, Buyer will receive
good and absolute title to the Shares free and clear of all liens,
claims, rights of third parties, charges or encumbrances of any
kind or character whatsoever, and free from any restriction with
respect to transferability other than applicable securities law
requirements, regulatory approvals, consents and filings. The
Shares have been duly authorized, validly issued and are fully
paid, being nonassessable and free of preemptive rights, with no
personal liability attaching to the ownership thereof. To Seller's
knowledge, the Bank has no outstanding subscriptions, options,
warrants or other agreements or commitments obligating the Bank to
issue shares of its capital stock or any securities representing
the right to purchase or otherwise receive, directly or indirectly,
any shares of the capital stock of the Bank, nor is there any
agreement providing for an amendment to its Articles of
Incorporation so as to increase the amount of authorized capital
stock. There are no voting trusts or other agreements, arrangements
or understandings with respect to the voting of the Shares. Except
as provided herein, there are no restrictions on the ability of the
Bank to declare and pay dividends, other than those imposed by
applicable state laws and regulations.
3.06
Subsidiaries . The Bank does not own, directly or
indirectly, any interest in another corporation. The Bank does not
have any investment in a subsidiary or partnership, nor does it,
directly or indirectly, own or control outstanding shares of the
stock of any corporation sufficient to constitute the voting power
to elect a majority of such corporation's board of directors. The
Bank does not have any continuing obligations or duties in
connection with a prior acquisition, merger or sale of the stock,
business or assets of the Bank.
3.07
Financial Statements . The Bank's financial
statements for the periods ending December 31, 2003 and 2004 are
set forth in Schedule 3.07 (such annual financial statements are
collectively referred to herein as the "Financial Statements") and
are, and, in the case of those delivered subsequent to the date
hereof will be, materially true, correct and complete, and fairly
present the financial, operational and changes in capital and
surplus and other positions of the Bank as of the dates indicated
and have been prepared in conformity with accounting practices
prescribed or permitted by the bank regulatory authorities
exercising jurisdiction over the Bank, and fairly present all the
information therein included in accordance with such basis of
accounting.
3.08
Taxes .
(a)
Except as set forth on Schedule 3.08, all tax returns required to
be filed by or on behalf of the Bank have been timely filed (or
requests for extensions therefor have been timely filed and granted
and have not expired), and all returns filed are complete and
accurate in all material respects. All taxes shown on these returns
to be due and all additional assessments received have been paid.
The amounts recorded for taxes on the Financial Statements are, to
the knowledge of the Seller, sufficient in all material respects
for the payment of all unpaid federal, state, county, local,
foreign and other taxes (including any interest or penalties) of
the Bank accrued for or applicable to the period ended on the dates
thereof, and all years and periods prior thereto and for which the
Bank may at such dates have been liable in its own right or as a
transferee of the assets of, or as successor to, any other
corporation or other party. No audit, examination or investigation
is presently being conducted or, to the knowledge of Seller,
threatened by any taxing authority which is likely to result in a
material tax liability, no material unpaid tax deficiencies or
additional liability of any sort has been proposed by any
governmental representative and no agreements for extension of time
for the assessment of any material amount of tax have been entered
into by or on behalf of the Bank. The Seller has not executed an
extension or waiver of any statute of limitations on the assessment
or collection of any tax due that is currently in effect.
(b)
The Bank has withheld from its employees (and timely paid to the
appropriate governmental entity) proper and accurate amounts for
all periods in material compliance with all tax withholding
provisions of applicable federal, state, foreign and local laws
(including without limitation, income, social security and
employment tax withholding for all types of compensation). The Bank
is in compliance with, and its records contain all information and
documents (including properly completed IRS Forms W-9) necessary to
comply with, all applicable information reporting and tax
withholding requirements under federal, state and local tax laws,
and such records identify with specificity all accounts subject to
backup withholding under applicable federal law.
3.09
Annual Statements . The Seller and the Bank have at
all times, to Seller's knowledge, filed or caused to be filed in a
timely manner all returns, reports, notices, documents and
information required by those laws, regulations, rules and orders
applicable to either the Bank, or Seller, or any affiliate of
Seller, which filings are due to or on account of, the Seller's
ownership of, or relationship to, the Bank.
3.10 Title and
Related Matters .
(a)
Title . To Seller's knowledge, the Bank has good and
marketable title to all the properties, interest in properties and
assets, real and personal, that are material to the business of the
Bank (except properties, interests and assets sold or otherwise
disposed of since such date, in the ordinary course of business),
free and clear of all mortgages, liens, pledges, charges or
encumbrances except (i) mortgages and other encumbrances reflected
in the financial statements of the Bank, (ii) liens for current
taxes not yet due and payable, and (iii) such imperfections of
title and easements as do not materially detract from or interfere
with the present use of the properties subject thereto or affected
thereby, or otherwise materially impair present business operations
at such properties. To the knowledge of Seller, the material
structures and equipment of the Bank comply in all material
respects with the requirements of all applicable laws.
(b)
Computer Hardware and Software . Schedule 3.10 contains a
description of all agreements relating to data processing computer
software and hardware now being used in the business operations of
the Bank. Seller is not aware of any defects, irregularities or
problems with any of its computer hardware or software which
renders such hardware or software unable to satisfactorily perform
the tasks and functions to be performed by them in the business of
the Bank.
3.11
Contracts . To Seller's knowledge, except as set
forth in Schedule 3.11:
(a)
The Bank does not have in effect any lease for real or personal
property, whether as lessor or lessee, other than those set forth
in Schedule 3.11 hereto;
(b)
The Bank has not incurred any contractual obligations (i) other
than in the usual and ordinary course of its business in accordance
with past practice, (ii) which are to be performed in any material
respect on or after the Closing Date, (iii) which involve future
payments to or by the Bank of more than $10,000 (other than a
pending purchase of a video surveillance system with an estimated
cost of $15,000), or (iv) which extend beyond one year;
(c)
There are no outstanding contracts between the Bank, on the one
part, and any salesman, producer, solicitor, broker, sales
representative or the like on the other, except for contracts
terminable by the Bank at any time upon not less than thirty (30)
nor more than one hundred eighty (180) days notice;
(d)
Other than for service of process, the Bank does not have any power
of attorney outstanding, whether general or specific, for any
purpose; and
(e)
Each contract to which the Bank is a party or pursuant to which it
has rights or obligations is at the date hereof in full force and
effect in accordance with its terms, the parties thereto not being
in default, and no event has occurred or shall occur as the result
of any transactions contemplated by this Agreement which, with the
giving of notice or passage of time or both, would constitute a
default.
3.12
Insurance Coverage . The Bank, either directly or
through Seller, has in full force and effect all such policies or
contracts of insurance naming it or its officers, directors or
employees as the insured or an additional assured or insured as are
prudent and reasonable for entities of like kind and character,
such policies or contracts of insurance being in those amounts and
affording the coverages against those risks as are described in
Schedule 3.12 hereto.
3.13
Licenses . To Seller's knowledge, since December 31,
2004, the Bank has not had any license, permit, certificate of
authority or other governmental or regulatory authorization revoked
or suspended, nor has the Seller received any notice or acquired
any knowledge of, a fact or condition that could result in the
revocation, suspension, limitation, condition or non-renewal of any
license, permit, certificate of authority or governmental or
regulatory authorization now held by the Bank.
3.14
Regulatory Reports and Compliance . During each of
the fiscal years for which Financial Statements have been provided
and to date, to Seller's knowledge, the Bank has filed all
statements, reports and other documents, in substantially accurate
form, as required by the laws, regulations and governmental
agencies of each jurisdiction in which it is required to be or is
qualified or licensed or otherwise authorized to do business as a
foreign or alien corporation, and the Bank's business has been and
is being conducted in substantial compliance with all applicable
statutes, laws, regulations and ordinances, as well as all orders,
writs, injunctions and decrees of any court, administrative agency
or governmental body. The Seller has not received during such
period any written communications directed to it or the Bank by any
bank regulatory agency pursuant to which such agency has imposed or
has indicated it may impose any material restrictions on the
operations or business conducted by the Bank or in which such
agency has raised any material question concerning the condition,
financial or otherwise, of the Bank.
3.15
Charter and Bylaws . Schedule 3.15 contains true and
correct copies of the articles of incorporation and bylaws of the
Bank, including all amendments thereto, as currently in effect.
There will be no changes in such articles of incorporation or
bylaws prior to the Closing Date, without the prior written consent
of Buyer.
3.16
Regulatory Approvals . Except for consents and
regulatory actions which may be required by the laws of the State
of Alabama, the Federal Deposit Insurance Act and the Bank Holding
Company Act of 1956, no consent, approval or authorization of, or
declaration, filing or registration with, any governmental or
regulatory authority is required in connection with the execution
and delivery of this Agreement and the consummation of the
Acquisition. Seller is not aware of any reason why all consents,
approvals and authorizations required to permit the sale by Seller
and the purchase by Buyer of the Shares as contemplated herein
would not be obtained solely as a result of any characteristic of
the Bank or Seller.
3.17
Pension and Employee Benefit Plans .
(a)
To the knowledge of Seller, all employee benefit plans of the Bank
have been established in compliance with, and such plans have been
operated in material compliance with, all applicable laws. Except
as set forth in Schedule 3.17, the Bank does not sponsor or
otherwise maintain a "pension plan" within the meaning of section
3(2) of ERISA or any other retirement plan that is intended to
qualify under section 401 of the Code, nor do any unfunded
liabilities exist with respect to any employee benefit plan, past
or present. To the knowledge of Seller, no employee benefit plan,
any trust created thereunder or any trustee or administrator
thereof has engaged in a "prohibited transaction," as defined in
Section 4975 of the Internal Revenue Code of 1986, as amended (the
"Code"), which may have a material adverse effect on the condition,
financial or otherwise, of the Bank.
(b)
To the knowledge of Seller, no amounts payable to any employee of
the Bank will fail to be deductible for federal income tax purposes
by virtue of Section 280G of the Code and regulations
thereunder.
ARTICLE IV
REPRESENTATIONS AND
WARRANTIES OF BUYER
Notwithstanding any independent investigation or verification
undertaken by Seller or its representatives, Buyer hereby
represents and warrants to Seller the following:
4.01
Organization and Corporate Power . Buyer is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Alabama having all corporate power
and authority necessary to own its property and operate its
business as now conducted. At least 51% of the voting capital stock
of Buyer is or will at Closing be owned, in the aggregate, by the
following shareholders of Buyer: Stratton Lewis, Jr., A.W. Compton,
Jr., J.O. Kerby, James M. Lewis, Mary Jane Loftin, and Pat Young
(collectively, the "Buyer Principals"), together with other former
shareholders of Sweet Water State Bancshares, Inc. and the lineal
descendants of the Buyer Principals and such other former
shareholders. Buyer has all corporate power, authority and legal
right necessary to execute and deliver this Agreement and, subject
to receipt of the regulatory approvals and actions described in
Section 4.05 hereof, to perform and carry out the Acquisition
pursuant to the terms and conditions hereof.
4.02
Authorization and Effect . This Agreement and the
performance of the actions provided for herein have been, or will
at Closing have been, duly and validly authorized by all necessary
corporate action on the part of Buyer. This Agreement, assuming its
due authorization, execution and delivery by Seller, constitutes a
legal, valid and binding obligation of Buyer, enforceable in
accordance with its terms, except as such may be limited by
bankruptcy, insolvency, reorganization or other laws generally
affecting the enforcement of creditors' rights or by applicable
principles of equity if equitable remedies are sought.
4.03
Securities Act; Intent to Hold . Buyer acknowledges
that the Shares have not been registered under the Securities Act
of 1933, as amended, or any state "Blue Sky" laws, and agrees not
to sell the Shares in violation of any federal or state securities
law or the regulations issued thereunder. The Shares being acquired
by Buyer are being purchased by Buyer for its own account and not
with a view to resale in connection with any distribution or public
offering. Buyer covenants that it shall not engage in or permit any
change of control transaction involving Buyer or the Bank for a
period of eighteen (18) months following the Closing; provided that
the foregoing shall not restrict or impair a change of control that
occurs solely as a result of the death and transfer by will or
intestacy of stock of the Buyer.
4.04
No Breach of Statute or Contract . Neither the
execution and delivery of this Agreement nor compliance with its
terms and conditions on the part of Buyer will conflict with or
result in a breach or violation of any of the terms, conditions or
provisions of, or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under
(i) the Articles of Incorporation or Bylaws of Buyer, or (ii)
assuming all requisite regulatory approvals are duly obtained, any
law, rule, regulation, judgment, order, decree or injunction
applicable to Buyer, or any of its properties or assets.
4.05
Regulatory Approvals . Except for the consents and
the regulatory actions which may be required by the State of
Alabama, the Federal Deposit Insurance Act and the Bank Holding
Company Act of 1956, no consent, approval or authorization of, or
declaration, filing or registration with, any governmental or
regulatory authority is required in connection with the execution
and delivery of this Agreement and the consummation of the
Acquisition solely as a result of a characteristic of Buyer. Buyer
is not aware of any reason why any such consent, approval or
authorization as is required to permit the sale by Seller and
purchase by Buyer of the Shares would not be obtained solely as a
result of any characteristic of Buyer or the Buyer Principals.
4.06 Seller's
Representations and Warranties . To the knowledge of Buyer,
the representations and warranties of Seller set forth in Sections
3.04, 3.05, 3.06, 3.07, 3.08, 3.09, 3.10, 3.11, 3.13, 3.14 and 3.15
of this Agreement, to the extent that they relate to the day to day
operations of the Bank, are true and correct.
ARTICLE V
COVENANTS OF THE
PARTIES
5.01 Conduct of
the Business Prior to Closing . Except as set forth in
Schedule 5.01, during the period from the date hereof until
Closing, Seller will cause the Bank to conduct its business only in
the ordinary course, consistent with past practices (except as
required to consummate the transactions contemplated hereby or as
otherwise permitted in this Agreement) and will cause the Bank to
maintai
