EXHIBIT 10.2
BANK DEVELOPMENT AGREEMENT
This Bank Development Agreement (the "Agreement") is made as of this 19th
day of June, 1998, by and among The First Bancshares, Inc., a Mississippi
corporation (the "Holding Company"), and the undersigned organizers (the
"Organizers") of First National Bank of the Pine Belt (in organization) (the
"Bank").
The Holding Company and the Organizers have jointly pursued the formation
of the Bank in Laurel, Mississippi. This Agreement formalizes the ongoing
terms of this joint pursuit.
NOW, THEREFORE, in consideration of these premises and the mutual
covenants hereafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
Statement of Agreement
1. Structure. The Bank will be organized as a wholly-owned subsidiary
of the Holding Company and is anticipated to be a national bank, chartered by
the Office of the Comptroller of the Currency.
2. Capitalization. The initial capitalization of the Bank is expected
to be $5,000,000 (or such other amount as may be necessary to satisfy
applicable regulatory requirements). This initial capitalization is
anticipated to be funded as set forth in Section 5 below and will be
accomplished pursuant to the terms of a Conditional Subscription Agreement
between the Holding Company and the Bank, substantially in the form attached
hereto as Exhibit A.
3. Development. Each of the parties has agreed to cooperate in all
aspects of the development of the Bank and to exercise their good faith and
best efforts to accomplish the goals contemplated by this Agreement.
Notwithstanding the foregoing, the division of responsibilities related to the
organization and formation of the Bank shall be as follows:
A. Subject to the Organizers' approval of all material documents
and issues related thereto, which approval shall not be unreasonably withheld,
the Holding Company shall be responsible for the legal and accounting aspects
of organization of the Bank and all state and federal regulatory approvals.
B. Subject to the Holding Company's approval, which approval shall
not be unreasonably withheld, the Organizers may procure and provide
professional bank consultant services to the Holding Company to assist with the
formation of the Bank and all state and federal regulatory approvals.
C. The Organizers shall be responsible for the acquisition or
leasing of certain real or personal property related to the proposed operation
of the Bank, but the Holding Company shall be consulted and have opportunity
for input and comment on the selection of such property and all material
documents and issues related hereto.
D. Until such time as the parties mutually agree to the contrary, the
Holding Company shall have the right to approve the annual budget and all
capital expenditures for the Bank.
4. Allocation of Expenses.
A. Expenses Paid By Holding Company.
1. Legal and Accounting Fees. The Holding Company shall be
responsible for, and shall advance, all legal and accounting fees incurred by
the Holding Company or Bank which are associated with the Public Offering (as
defined below) and the formation of the Bank.
2. Pre-Opening Employee Expenses. As set forth in that
certain Employment Agreement by and between William M. Renovich and the Holding
Company, dated June 10, 1998 (the "Employment Agreement"), Mr. Renovich is
employed, initially as an employee of the Holding Company, to assist with the
formation of the Bank, and then as President and CEO of the Bank, for an
initial term of three years. Subject to reimbursement as set forth in Section
4(B)(2) hereof, until the Bank assumes the payment of Mr. Renovich's salary and
benefits as set forth in Section 9 hereof, the Holding Company shall be
responsible for, and shall advance, salary, FICA, perquisites and fringe
benefits to Mr. Renovich as set forth in the Employment Agreement.
B. Expenses Paid By Organizers. Subject to reimbursement as set
forth in Section 6, the Organizers shall advance the costs and expenses related
to the following:
1. General Expenses. All costs and expenses, other than the
costs and expenses to be paid by the Holding Company as set forth in Section
4(A), incurred by any party in connection with the formation of the Bank,
including but not limited to acquisition or leasing of real or personal
property, professional bank consulting fees, legal and other professional fees
related to the internal affairs among the organizers and the acquisition of
real or personal property as contemplated herein, FDIC and other federal
regulatory fees, and state filing fees, shall be the responsibility of, and
shall be advanced by, the Organizers.
2. Reimbursement of a Portion of Mr. Renovich's Salary
Expenses. Until the Bank assumes the payment of Mr. Renovich's salary and
benefits as set forth in Section 9, the Holding Company shall advance and pay
all salary, FICA, perquisites and fringe benefits to Mr. Renovich as set forth
in the Employment Agreement and Section 4(A)(2) above. Notwithstanding the
forgoing, 60% of the expenses for Mr. Renovich's salary, FICA, perquisites and
fringe benefits incurred by the Holding Company for the period commencing with
Renovich's employment by the Holding Company and ending upon the opening date
of the Bank shall be billed to the Organizers by the Holding Company and
immediately reimbursed by the Organizers to the Holding Company.
C. Funding of Organizers' Expense Obligations. To facilitate the
payment of such expenses by the Organizers, the Organizers will obtain a
$300,000 line of credit (the "Line of Credit") from The First National Bank of
South Mississippi, a wholly-owned subsidiary of the Holding Company, and will
enter into a contribution agreement among the Organizers to allocate liability
for the Line of Credit. The contribution agreement will provide that each
Organizer will be jointly and severally liable for the Line of Credit, up to a
maximum of $35,000 per Organizer.
5. Public Offering. The initial capitalization and reimbursement of
organizational costs for the Bank are anticipated to be funded from the
proceeds of a proposed estimated $5,000,000 to $10,000,000 public offering of
securities (at a price of $15.00 per share) to be conducted by the Holding
Company (the "Public Offering"). Such capitalization may, in the Holding
Company's sole discretion, be funded from sources other than the Public
Offering. The Organizers agree to cooperate in good faith with the preparation
of all documents related to the Public Offering as reasonably requested from
time to time by the Holding Company. The Organizers further agree to abide by
all applicable restrictions under federal and state securities laws which apply
to the Public Offering and the Holding Company's participation in the
development of the Bank. The parties agree that the Organizers will be
allocated five-eighths (5/8) of the offering to sell in the Jones County market
and the current members of the Board of Directors of the Holding Company will
be allocated three-eighths (3/8) of the offering of Holding Company securities
to sell in the Forrest/Lamar County markets in the Public Offering. It is
further agreed that: (a) no individual (or household) may purchase more than
$250,000.00 worth of stock in the Public Offering; and (b) the maximum amount
of stock that the Organizers will be allowed to purchase in the Public Offering
will be $2,500,000.00.
6. Reimbursement.
A. Reimbursement to Organizers. Upon the first of the following to
occur, the Holding Company shall assume the Line of Credit or otherwise satisfy
or cause the Bank to satisfy the Line of Credit (from the Bank's initial
capitalization or other source) thereby causing each Organizer to be relieved
of liability pursuant to the Line of Credit, up to an aggregate of $300,000:
1. The Bank lawfully opens for business and commences banking
operations, and the Organizers are not in material breach of this Agreement; or
2. The Organizers in the aggregate have irrevocably subscribed
and paid for at least $2,000,000 of securities in the Holding Company, and the
Bank fails to become licensed as a lawfully chartered bank as a result of facts
or circumstances which are the result or product of, in whole or in substantial
part, a negligent, willful or intentional act or omission of the Holding
Company or any authorized representative of the Holding Company.
B. No Reimbursement to Organizers. The Holding Company shall not
assume the Line of Credit or otherwise satisfy the Line of Credit, and the
Organizers shall remain liable for the Line of Credit in all circumstances
other than those set forth in Section 6(A) above, including any circumstance in
which the Bank fails to open for business for any reason other than as the
result or product of, in whole or in substantial part, a negligent, willful or
intentional act or omission of the Holding Company or any authorized
representative of the Holding Company. In any such case, the allocation of
expenses provided for in Section 4 above shall control.
7. Bank Directors. The Holding Company agrees to structure the initial
Board of Directors of the Bank to include and to be limited to each of the
Organizers, plus the Chief Executive Officer and the Chief Financial Officer of
the Holding Company, who are currently David E. Johnson and Charles Ruffin.
Upon the organization of the Bank, the Holding Company further agrees to elect
and re-elect each of the Organizers to the Board of Directors of the Bank until
such time as the Board of Directors of the Bank, by a two-thirds vote (with or
without cause) with the concurrence of the Holding Company, which concurrence
shall not be unreasonably withheld, requests that one or more of the Bank's
directors be replaced. In this event, the Holding Company shall replace the
appropriate directors of the Bank, in accordance with the instructions of the
Bank's Board of Directors, at the earliest practicable time in accordance with
the Bank's bylaws and applicable regulatory restrictions. Notwithstanding the
foregoing, the Board of Directors of the Bank shall not include any individual:
(i) who does not agree to serve on the Board of Directors, (ii) who is
prohibited by federal or state law, rule, or regulation, or the Bank's bylaws
or otherwise fails to receive the approval of the relevant bank regulatory
agencies, to serve on the board of directors of a bank or subsidiary of a
publicly held company, (iii) who has materially violated this Agreement, or
(iv) who is not approved by the Board of the Holding Company, which approval
will not be unreasonably withheld. The Holding Company hereby approves each of
the initial 16 Organizers who have executed this Agreement to serve on the
Bank's initial Board of Directors.
8. Holding Company Directors.
A. In the event (i) the Organizers in the aggregate have
irrevocably subscribed and paid for at least $2,000,000 of securities of the
Holding Company, and (ii) the incorporation and organization of the Bank is
completed and the Bank lawfully opens for business, the following shall occur:
1. The Holding Company will adopt appropriate corporate
resolutions to expand the size of the Holding Company's Board of Directors by a
sufficient number of members to permit the appointment of the nominees
described in Section 8(A)(2); and
2. Subject to the approval of the Holding Company, which shall
not be unreasonably withheld, a majority of the Board of Directors of the Bank
shall select four members of the Board of Directors of the Bank to be appointed
by the Holding Company's Board of Directors to fill four vacancies on the
Holding Company's Board of Directors which exist or are created pursuant to
Section 8(A)(1).
3. The Board of Directors of the Bank may, by a two-thirds
vote (with or without cause), replace any or all of the four individuals
initially selected by the Board of Directors of the Bank to serve on the
Holding Company's Board of Directors. Only members of the Board of Directors
of the Bank shall be eligible to be selected under this provision. Any
individuals selected by the Board of Directors of the Bank under this provision
shall be subject to the approval of the Holding Company. In the event of a
replacement selection by the Board of Directors of the Bank, the Holding
Company's Board of Directors shall replace the appropriate individuals on the
Holding Company's Board of Directors at the earliest practicable time in
accordance with the Holding Company's bylaws. The Holding Company's Board of
Directors shall also nominate and recommend the newly-selected individuals for
election to the Holding Company's Board of Directors at the Holding Company's
next annual meeting of shareholders.
B. Upon the satisfaction of the conditions precedent set forth in
Section 8(A) above, the Holding Company's Board of Directors shall nominate and
recommend for election to the Board of Directors of the Holding Company at the
next annual shareholder meeting of the Holding Company after the satisfaction
of the conditions precedent, four Directors of the Bank submitted to the Board
of Directors of the Holding Company by the Board of Directors of the Bank.
C. In the event that the conditions precedent set forth in Section
8(A) above have been satisfied, upon the expiration of the term of each
proposed director set forth in Section 8(B) above, the Board of Directors of
the Holding Company hereby agrees annually to nominate and recommend for
election or re-election as a director of the Holding Company the appropriate
number of individuals, whose names are submitted by the Board of Directors of
the Bank, to allow for the Bank's continued representation by four members of
the Bank's Board of Directors on the Holding Company's Board of Directors. All
individuals whose names are submitted to the Holding Company's Board of
Directors under this provision shall be subject to the approval of the Holding
Company, which shall not be unreasonably withheld.
D. Notwithstanding anything contained herein to the contrary, the
Holding Company shall not elect, nominate or recommend for election as a
director of the Holding Company any individual: (i) who does not agree to elect
or serve on the board of directors of the Holding Company, (ii) who is
prohibited by federal or state law, rule, or regulation, or the Holding
Company's bylaws, or otherwise fails to receive the approval of the relevant
bank regulatory agencies to serve on the board of directors of a bank or
publicly held company, or (iii) who has materially violated this Agreement.
The obligation of the Holding Company to elect or nominate directors under this
Section 8 shall terminate in the event the Bank ceases to be a wholly-owned
subsidiary of the Holding Company or the Organizers materially breach this
Agreement.
9. Mr. Renovich's Salary Assumption. Upon the Bank's lawful
commencement of business in Laurel, Mississippi, the Bank shall assume the
Holding Company's obligations under the Employment Agreement and shall pay to
Mr. Renovich, for the remainder of the initial term of the Employment Agreement
and any extensions thereof, his salary, FICA, perquisites, and fringe benefits
in pay periods as determined by the Bank, but no event less frequently than
monthly, unless Mr. Renovich's employment has been sooner terminated pursuant
to his Employment Agreement.
10. Assignment of Property Interests. Upon the incorporation and initial
capitalization of the Bank in an amount necessary to satisfy all applicable
state and federal bank regulatory requirements (or at any sooner time
designated by the Holding Company in its discretion, and then only upon the
Holding Company relieving the Organizers of liability under the Line of
Credit), the Organizers shall convey or assign to the Bank any and all right,
title and interest in and to any and all real or personal property which is
associated with or related to the proposed operation of the Bank, and which is
acquired by, or held in the name of, one or more Organizers or any entity
controlled by one or more Organizers, including but not limited to any fee
interest, leasehold interest, or option to acquire a fee or leasehold interest.
In the event of such conveyance or assignment as described in this Section 10,
the real and personal property conveyed, or interest therein which is assigned,
shall be free and clear of all liens or encumbrances except liens or
encumbrances in favor of the Holding Company or any subsidiary of the Holding
Company.
11. Office Support. Until the initial capitalization of the bank in an
amount necessary to satisfy all applicable state and federal bank regulatory
requirements, the Organizers will make available facilities, furniture,
fixtures, equipment, and clerical support for the initial operations of the
Bank.
12. Lock-Up. In consideration for the incurring of costs and expenses by
the Holding Company and the Organizers for the transactions contemplated
herein, for a period commencing the date hereof and ending on June 30, 1999:
(a) each of the Organizers agrees not to participate directly or indirectly in
any activity related to the formation of a new financial institution, or the
affiliation with or expansion of an existing financial institution, within a
50-mile radius of Laurel, Mississippi, other than the Bank contemplated herein
or a modification thereof which is to be a wholly-owned subsidiary of the
Holding Company, provided, however, that this restriction on the Organizers
shall not apply in the event that the Holding Company fails to receive
preliminary regulatory approval from the Federal Reserve to own 100% of the
stock of the Bank by December 31, 1998, as a result of facts or circumstances
which are not the result or product of, in whole or in substantial part, any
negligent, willful or intentional act or omission of one or more Organizers,
and (b) the Holding Company agrees not to participate directly or indirectly in
any activity related to the formation of a new financial institution within a
50-mile radius of Laurel, Mississippi, other than the Bank contemplated herein
or a modification hereof, which is to be affiliated with all the Organizers who
have neither materially violated either this Agreement or any other agreement
related to the formation of the Bank contemplated hereby and who have not
withdrawn from participation in this venture. After June 30, 1999 the parties'
restrictions, if any, on the ownership of, and participation in, other
competing financial institutions shall be governed and dictated by the parties'
fiduciary and other duties, if any, arising from the relationship of the
parties on such date and any applicable state and federal rule or regulation
applicable hereto. Each party hereto has carefully read and considered the
provisions of this Section 12, and, having done so, agrees that the
restrictions set forth in this Section 12 are fair and reasonable and are
reasonably required for the protection of the interests of each party hereto.
The parties hereto acknowledge that each party's services hereunder are a
special and unusual character with a unique value to the other parties hereto,
the loss of which cannot adequately be compensated by damages in an action at
law. In the event of a breach or threatened breach by a party hereto of any of
the provisions of this Section 12, the other parties hereto, or any one of
them, in addition to and not in limitation of, any other rights, remedies, or
damages available under this Agreement, shall be entitled to a permanent
injunction in order to prevent or restrain any such breach by the breaching
party or such party's partners, agents, representatives, servants, employers,
employees, consulting clients, or any and all persons directly or indirectly
acting for or with such breaching party.
13. Publicity and Confidentiality. All press releases and public
announcements about the Bank and any other activities contemplated by this
Agreement require the prior approval of the Holding Company after consultation
with securities counsel for the Holding Company. Each of the Organizers (i)
will abide by any disclosure and confidentiality guidelines to be provided from
time to time by the Holding Company and its counsel, (ii) will not make any
disclosures that are harmful to the development of the Bank unless legally
required to do so, in which case the Organizer shall notify the Holding Company
and its counsel before making any disclosure in order to give the Holding
Company and its counsel an opportunity to protest or appeal the requirement for
the disclosure, and (iii) will not make any disclosure respecting any matters
contemplated in this Agreement that will adversely affect the Holding Company's
compliance with federal or state securities laws. The Holding Company will,
with assistance of its counsel, adopt an insider trading policy, which shall
contain appropriate provisions for trading in the stock of the Holding Company
by insiders during certain periods or "trading windows" following the release
to the public of material information concerning the Holding Company. No
Organizer will trade in any of the Holding Company's stock when in possession
of material nonpublic information respecting the Holding Company, whether or
not during a "trading window." Each Organizer will at all times abide by all
insider-trading and other compliance policies as determined and distributed to
the Organizers by the Holding Company and its counsel from time to time.
14. Stock Options. Subject to the approval of its shareholders, and
assuming a $7.5 million offering, the Holding Company will grant the following
numbers of options to purchase shares of the common stock of the Holding
Company, at fair market value as of the date of grant, to the following groups
of individuals on a date after the successful opening of the Bank:
A. Approximately 30,000 options in the aggregate to the initial
members of the Board of Directors of the Bank;
B. Approximately 20,000 options in the aggregate to the initial
executive officers of the Bank; and
C. Approximately 15,000 options in the aggregate to members of the
Holding Company's Board of Directors (excluding those members appointed
from the Board of Directors of the Bank).
In the event the offering is either greater than or less than $7.5
million, the number of options provided for in this section 14 will be adjusted
proportionately.
15. Termination. This Agreement shall terminate upon the mutual written
consent of the Holding Company and a majority of the Organizers.
16. Legal Compliance. This Agreement constitutes neither an offer or a
sell, nor a solicitation of an offer to buy, securities of any kind whatsoever.
The parties acknowledge that securities will only be offered or sold after
compliance with all applicable federal and state securities laws. Each of the
Organizers and the Holding Company represent and warrant to the other parties
hereto that execution and performance of this Agreement and the transactions
contemplated herein will not violate any contract, commitment, or other legal
requirement binding upon such party.
17. Modifications. This Agreement can only be modified by a written
agreement duly signed by the Holding Company and a majority of the Organizers.
Moreover, in order to avoid uncertainty, ambiguity and misunderstandings in
their relationships, the parties hereto covenant and agree not to enter into
any oral agreement or understanding inconsistent or in conflict with this
Agreement; and the parties hereto further covenant and agree that any oral
communication allegedly or purportedly constituting such an agreement or
understanding shall be absolutely null, void and without effect.
18. Waiver. Any waiver by a party of any breach or any term or condition
hereof shall be affective only if in writing and such writing shall not be
deemed to be a waiver of any subsequent or other breach, term or condition of
this Agreement.
19. Relationship of the Parties. Nothing herein shall be deemed to
create any partnership or joint venture relationship between the parties. No
party shall make any representation or statement (whether written or oral) to
any person or entity inconsistent with this Section 19.
20. Third Parties. The provisions of this Agreement are not intended to
be for, and shall not inure to, the benefit of any third parties, and no third
party shall be deemed to have any privity of contract with any of the parties
hereto by virtue of this Agreement.
21. Assignments. Neither this Agreement nor any rights hereunder may be
assigned or otherwise transferred by any party, except that the Holding Company
may assign this Agreement to any corporation controlled by or under common
control with the Holding Company.
22. Cumulative Remedies. All rights and remedies of a party hereunder
shall be cumulative and in addition to such rights and remedies as may be
available to a party at law or equity.
23. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes
all prior or contemporaneous written or oral agreements and representations
between the parties with respect thereto.
24. Notices. Any notice, request, approval, consent, demand or other
communication shall be effective upon the first to occur of the following: (i)
upon receipt by the party to whom such notice, request, approval, consent,
demand or other communication is being given; or (ii) three business days after
being duly deposited in the United States mail, registered or certified, return
receipt requested, and addressed as follows:
Holding Company: The First Bancshares, Inc.
6480 U.S. Highway 98 W
P.O. Box 15549
Hattiesburg, Mississippi
Attn: David Johnson
Organizers: First National Bank of the Pine Belt
(in organization)
c/o Robert D. Gholson, P.A.
P.O. Box 6523
Laurel, Mississippi 39441-6523
The parties hereto may change their respective addresses by notice in writing
given to the other party to this Agreement.
25. Severability. If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
26. Governing Law. This Agreement has been executed and delivered in the
State of Mississippi, and its validity, interpretations, performance, and
enforcement shall be governed by the internal laws but not the conflicts of law
rules of such State. Venue for any action arising out of or related to this
Agreement shall be the Chancery Court for the Second Judicial District of Jones
County, Mississippi.
27. Agreement to Arbitrate. The parties agree that all controversies,
disputes, or claims between the parties arising out of or related to this
Agreement or the validity of this Agreement or any other agreement between the
parties or any other provision of any such agreements, will be submitted for
arbitration on demand of either party. All arbitration proceedings shall take
place in Hattiesburg, Mississippi or the closest hearing site to Hattiesburg,
Mississippi offered by the American Arbitration Association. If either party
is not a resident of or does not maintain a presence in Mississippi in which
the designated hearing site is situated, then such party hereby agrees to
submit personally to the jurisdiction of the arbitration proceeding and, with
respect to any award entered thereon, to the jurisdiction of a court of
competent subject matter jurisdiction located in the above designated state and
county. Except as otherwise provided in this Agreement, arbitration
proceedings will be heard by one arbitrator in accordance with the then current
commercial arbitration rules of the American Arbitration Association. All
matters relating to arbitration will be governed by the Federal Arbitration Act
(9 U.S.C. Section 1 et seq.) and not by any state arbitration law.
28. No Inference Against Author. No provision of the Agreement shall be
interpreted against any party because such party or its legal representative
drafted such provision.
29. Captions and Headings/Usage. The captions and headings are inserted
in the Agreement for convenience only, and in no event be deemed to define,
limit or describe the scope or intent of this Agreement, or of any provision
hereof, nor in any way affect the interpretation of this Agreement. All
pronouns and defined terms appearing herein shall be deemed to include both the
singular and plural, and to refer to all genders, unless the context clearly
requires otherwise.
30. Counterparts. This Agreement may be executed simultaneously in
several counterparts, each of which shall be deemed an original but which
together shall constitute one and the same original.
[signatures on following page]
IN WITNESS HEREOF, the parties hereto have duly executed this Bank
Development Agreement to be legally binding and effective as of the date first
above written.
THE FIRST BANCSHARES, INC.
By: /s/ David E. Johnson
Its: Chief Executive Officer
ORGANIZERS OF THE FIRST NATIONAL BANK OF THE PINE BELT:
/s/ Charels R. Lightsey /s/ Josephine C. Waites
Charles R. Lightsey Josephine C. Waites
/s/ J. Douglas Seidenburg /s/ M. Ray Cole
J. Douglas Seidenburg M. Ray Cole
/s/ Peeler Lacey, M.D. /s/ Roy H. Boutwell
Peeler Lacey, M.D. Roy H. Boutwell
/s/ Trent A. Mulloy /s/ Ralph T. Simmons
Trent A. Mulloy Ralph T. Simmons
/s/ John J. McGraw, M.D. /s/ Nick Welch
John J. McGraw, M.D. Nick Welch
/s/ Michael W. Chancellor /s/ William H. Wells
Michael W. Chancellor William H. Wells
/s/ William M. Renovich /s/ Eric E. Lindstrom, Jr.
William M. Renovich Eric E. Lindstrom, Jr.
/s/ David L. Rice, III
David L. Rice, III, D.M.D.
EXHIBIT A
Conditional Subscription Agreement
CONDITIONAL SUBSCRIPTION AGREEMENT
TO: First National Bank of the Pine Belt (in organization)
________________________
Laurel, Mississippi 29267
Attn: _____________________
In consideration for your agreement to sell and issue shares of the common
stock (the "Shares") of First National Bank of the Pine Belt (in organization),
a national bank (the "Bank"), to the undersigned subscriber (the "Holding
Company"), and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Holding Company hereby
conditionally agrees to acquire from the Bank and does hereby conditionally
subscribe for 500,000 Shares at a cash purchase price of $10.00 per share, for
a total subscription price of $5,000,000.
It is expressly understood and agreed by the Bank and Holding Company that
the Holding Company's obligations to acquire and pay for the Shares is subject
to and conditioned upon satisfaction of each of the following: (a) the receipt
by the Holding Company of at least $2,000,000 in gross proceeds from the
purchase of Holding Company securities by the Organizers of the Bank; (b) the
filing of all applications and other documentation with the Office of the
Comptroller of the Currency and the Federal Deposit Insurance Corporation and
either receipt or continued active pursuit of all regulatory approvals for this
investment and the Bank's proposed banking business; (c) the Holding Company,
upon completion of this subscription, will be the sole shareholder of the Bank;
and (d) the absence of any materially adverse changes in condition or
circumstances which would make the acquisition, development, or operation of
the Bank's proposed banking business unlawful, impracticable, or commercially
unreasonable.
The Holding Company agrees that in order for any of the foregoing
conditions to be effective for the benefit of the Holding Company, the Holding
Company shall have exercised its good faith and best efforts towards the
satisfaction of such conditions to the fullest extent that the same is within
the control of the Holding Company and is commercially feasible.
This Agreement shall be governed by the laws of the state of Mississippi
and the parties hereto agree to jurisdiction and venue, subject to proper
service of process, in the State of Mississippi. All terms and provisions
hereof are severable in the event of unenforceability of any one or more of
them. The terms hereof may only be amended, modified, or waived in writing
signed by the party to be bound thereby.
[signatures on following page]
IN WITNESS WHEREOF, the Holding Company has executed this Conditional
Subscription Agreement to be effective as of the _____ day of _____________,
1998.
HOLDING COMPANY
THE FIRST BANCSHARES, INC.
By: ________________________________
Its: ________________________________
ACCEPTED as of the _____ day
of ______________, 1998.
First National Bank of the Pine Belt (in organization)
By: _________________________
Its: _________________________