1
EXHIBIT 2.5
AGREEMENT AND PLAN OF REORGANIZATION
2
AGREEMENT AND PLAN OF REORGANIZATION
TABLE OF CONTENTS
ARTICLE 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 "Agreement" . . . . . . . . . . . . . . . . . . . . . . 1
1.2 "Baker" . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 "Book Value" . . . . . . . . . . . . . . . . . . . . . 1
1.4 "Business Day" . . . . . . . . . . . . . . . . . . . . 1
1.5 "Closing" . . . . . . . . . . . . . . . . . . . . . . . 1
1.6 "Effective Date" . . . . . . . . . . . . . . . . . . . 2
1.7 "FDIC" . . . . . . . . . . . . . . . . . . . . . . . . 2
1.8 "FRB" . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.9 "HHC" . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.10 "Hancock Bank" . . . . . . . . . . . . . . . . . . . . 2
1.11 "OFI" . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.12 "Party" . . . . . . . . . . . . . . . . . . . . . . . . 2
1.13 "Person" . . . . . . . . . . . . . . . . . . . . . . . 2
1.14 "SEC" . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.15 "Valuation Date" . . . . . . . . . . . . . . . . . . . 3
ARTICLE 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
THE MERGER AND RELATED MATTERS . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Merger . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Effect of Merger . . . . . . . . . . . . . . . . . . . 3
2.3 Notice to Depositors . . . . . . . . . . . . . . . . . . 3
ARTICLE 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CONVERSION OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.1 Conversion Amount . . . . . . . . . . . . . . . . . . . 3
3.2 Conversion . . . . . . . . . . . . . . . . . . . . . . 4
3.3 Adjustments . . . . . . . . . . . . . . . . . . . . . . 5
i
3
ARTICLE 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
BAKER'S COVENANTS AND AGREEMENTS . . . . . . . . . . . . . . . . . . . . . 6
4.1 Operation of Business . . . . . . . . . . . . . . . . . 6
4.2 Preservation of Business . . . . . . . . . . . . . . . 7
4.3 Insurance . . . . . . . . . . . . . . . . . . . . . . . 8
4.4 Stockholders' Meeting . . . . . . . . . . . . . . . . . 8
4.5 Affiliates . . . . . . . . . . . . . . . . . . . . . . . 8
4.6 Due Diligence . . . . . . . . . . . . . . . . . . . . . 8
4.7 Surrender of Charter . . . . . . . . . . . . . . . . . . 9
4.8 Baker Financial and Other Reports . . . . . . . . . . . 9
ARTICLE 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
BAKER'S REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . 9
5.1 Organization and Authority . . . . . . . . . . . . . . 9
5.2 Authorization . . . . . . . . . . . . . . . . . . . . . 9
5.3 Baker Financial and Other Reports . . . . . . . . . . . 10
5.4 Investment and Loan Portfolios . . . . . . . . . . . . 10
5.5 Capital Structure of Baker . . . . . . . . . . . . . . . 11
5.6 Title to Properties . . . . . . . . . . . . . . . . . . 11
5.7 Accuracy of Information . . . . . . . . . . . . . . . . 11
5.8 Compliance with Laws and Contracts . . . . . . . . . . . 11
5.9 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.10 Litigation . . . . . . . . . . . . . . . . . . . . . . . 11
5.11 Registration and Proxy Statements . . . . . . . . . . . 12
5.12 Commitments and Contracts . . . . . . . . . . . . . . . 12
5.13 Liabilities . . . . . . . . . . . . . . . . . . . . . . 12
5.14 Vote Required . . . . . . . . . . . . . . . . . . . . . 13
5.15 Continuity of Interest . . . . . . . . . . . . . . . . . 13
5.16 Continuity of Business Enterprise . . . . . . . . . . . 13
ARTICLE 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
HHC'S REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS . . . . . . . . 13
6.1 Organization and Authority . . . . . . . . . . . . . . . 13
6.2 Capitalization of HHC . . . . . . . . . . . . . . . . . 14
6.3 Authorization . . . . . . . . . . . . . . . . . . . . . 14
6.4 Conduct of Business . . . . . . . . . . . . . . . . . . 14
6.5 Registration of Stock . . . . . . . . . . . . . . . . . 14
6.6 Continuity of Business Enterprise . . . . . . . . . . . 15
ii
4
ARTICLE 7 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
CONDITIONS TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.1 Conditions to Each Party's Obligations to Effect
the Merger. . . . . . . . . . . . . . . . . . . . . . . 15
a. Stockholder Approval. . . . . . . . . . . . . . . 15
b. Regulatory Approvals . . . . . . . . . . . . . . 15
c. Registration Statement. . . . . . . . . . . . . . 15
d. Pooling Treatment . . . . . . . . . . . . . . . . 15
e. Tax Opinion . . . . . . . . . . . . . . . . . . . 16
7.2 Conditions to Obligations of Baker to Effect the
Merger. . . . . . . . . . . . . . . . . . . . . . . . . 16
a. Representations and Warranties. . . . . . . . . . 16
B. Performance of Obligations . . . . . . . . . . . 16
c. Legal Opinion . . . . . . . . . . . . . . . . . . 16
7.3 Conditions to Obligations of HHC and Hancock Bank to
Effect the Merger . . . . . . . . . . . . . . . . . . . 17
a. Representations and Warranties. . . . . . . . . . 17
b. Performance of Obligations. . . . . . . . . . . . 17
c. Legal Opinion . . . . . . . . . . . . . . . . . . 17
ARTICLE 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.2 Deliveries at Closing . . . . . . . . . . . . . . . . . . 18
8.3 Documents . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
EMPLOYMENT MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
9.1 Employees . . . . . . . . . . . . . . . . . . . . . . . . 18
9.2 Retirement Plan . . . . . . . . . . . . . . . . . . . . . 19
9.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
10.1 Parties' Joint Remedies . . . . . . . . . . . . . . . . . 19
10.2 Baker's Remedies . . . . . . . . . . . . . . . . . . . . 19
10.3 HHC's Remedies . . . . . . . . . . . . . . . . . . . . . 20
10.4 Attorney Fees . . . . . . . . . . . . . . . . . . . . . . 20
iii
5
ARTICLE 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
11.1 Termination . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
APPRAISAL RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
12.1 Appraisal Rights of Baker . . . . . . . . . . . . . . . . 20
ARTICLE 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
13.1 Entire Agreement . . . . . . . . . . . . . . . . . . . . 21
13.2 Survival of Representations, Warranties and Agreements . 21
13.3 Headings . . . . . . . . . . . . . . . . . . . . . . . . 21
13.4 Duplicate Originals . . . . . . . . . . . . . . . . . . . 21
13.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . 21
13.6 Successors; No Third Party Beneficiaries . . . . . . . . 21
13.7 Modification; Assignment . . . . . . . . . . . . . . . . 21
13.8 Notice . . . . . . . . . . . . . . . . . . . . . . . . . 21
13.9 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . 22
13.10 Costs, Fees and Expenses . . . . . . . . . . . . . . . . 23
13.11 Press Releases . . . . . . . . . . . . . . . . . . . . . 23
13.12 Severability . . . . . . . . . . . . . . . . . . . . . . 23
13.13 Mutual Covenant of Best Efforts and Good Faith . . . . . 23
EXHIBITS AND SCHEDULES
Exhibit A Letter of Transmittal
Exhibit B Form of Affiliate Agreement
Exhibit C Joinder of Shareholder
Exhibit D Cashier's Certificate
Schedule A First State Bank Leased Properties
Schedule B First State Bank List of Claims
Schedule C First State Bank List of Contracts
iv
6
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement"), dated as
of November 30, 1993, is made between First State Bank & Trust Company of East
Baton Rouge Parish, Baker, Louisiana, a Louisiana state bank ("Baker"), Hancock
Holding Company, a Mississippi corporation ("HHC"), and Hancock Bank of
Louisiana, a Louisiana state bank ("Hancock Bank"), a wholly-owned subsidiary
of Hancock Holding Company.
WHEREAS, by a two-thirds affirmative vote, the respective Boards of
Directors of HHC, Hancock Bank, and Baker have approved the acquisition of
Baker by HHC and subsequent merger of Baker with and into Hancock Bank (the
"Merger");
NOW, THEREFORE, it is agreed:
ARTICLE 1
DEFINITIONS
Certain Defined Term. As used in this Agreement, the following terms
shall have the following meanings (such meaning to be equally applicable to
both the singular and plural forms of the terms defined):
1.1 "Agreement" shall mean this Agreement and Plan of
Reorganization by and among HHC, Hancock Bank, and Baker and any amendments
thereto. References to Articles, Sections, Schedules and the like refer to the
Articles, Sections, Schedules and the like of this Agreement unless otherwise
indicated.
1.2 "Baker" means First State Bank & Trust Company of East Baton
Rouge Parish, a Louisiana state bank chartered, organized and existing under
and pursuant to the laws of the State of Louisiana and maintaining its
principal place of business at 3033 Ray Weiland, in Baker, East Baton Rouge
Parish, Louisiana.
1.3 "Book Value" with respect to stockholders' equity of Baker
shall mean the difference between the dollar amount of total liabilities of
Baker reflected on the books and records of Baker as of the Valuation Date and
the dollar amount of total assets of Baker reflected on the books and records
of Baker as of Valuation Date.
1.4 "Business Day" shall mean a day on which Hancock Bank is open
for business and which is not a Saturday, Sunday or legal bank holiday.
1.5 "Closing" The closing (the "Closing") of the transactions
contemplated herein will take place at Hancock Bank's office at 3854 American
Way, in Baton Rouge, Louisiana, on a date that is mutually agreed to by both
parties ("Closing Date") that is within thirty (30) days following the later of
the date of receipt of all applicable regulatory approvals relating to the
transactions contemplated herein, the expiration of all applicable statutory
and
1
7
regulatory waiting periods relative thereto, or the date the Registration
Statement (the "Registration Statement") filed with the SEC is declared
effective, or such later date as may be agreed to by the parties. At the
Closing the parties shall each deliver to the other such evidence of the
satisfaction of the conditions to the Merger as may reasonably be required
(including material required to be delivered under this Agreement).
1.6 "Effective Date" The Agreement shall be filed with and
recorded by the Commissioner of Financial Institutions of Louisiana immediately
following, or concurrently with, the Closing, and the Merger shall be effective
at Midnight, Central (Standard or Daylight, whichever is in effect in Baton
Rouge, Louisiana on said date) Time, on the date the Commissioner issues a
certificate of merger.
1.7 "FDIC" means that agency of the United States of America known
as the Federal Deposit Insurance Corporation, or any successor United States
governmental agency which insures deposits of commercial banks.
1.8 "FRB" means that agency of the United States of America which
acts in the capacity of a governmental central bank known as the Federal
Reserve System represented by actions of its Board of Governors, having
regulatory authority over bank holding companies, or any successor United
States governmental agency performing the function of exercising such
regulatory authority.
1.9 "HHC" means Hancock Holding Company, a corporation chartered,
organized and existing under and pursuant to the laws of the State of
Mississippi and maintaining its principal place of business at One Hancock
Plaza, in Gulfport, Harrison County, Mississippi.
1.10 "Hancock Bank" means Hancock Bank of Louisiana, a Louisiana
state bank chartered, organized and existing under and pursuant to the laws of
the State of Louisiana and maintaining its principal place of business at One
American Place in Baton Rouge, East Baton Rouge Parish, Louisiana.
1.11 "OFI" means the Office of Financial Institutions of the State
of Louisiana having regulatory authority over Hancock Bank and Baker or any
successor Louisiana governmental agency exercising such regulatory authority.
1.12 "Party" shall mean HHC, Hancock Bank, or Baker and "Parties"
shall mean HHC, Hancock Bank, and Baker.
1.13 "Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
2
8
1.14 "SEC" means that agency of the United State of America known
as the Securities and Exchange Commission.
1.15 "Valuation Date" shall mean December 31, 1993.
ARTICLE 2
THE MERGER AND RELATED MATTERS
2.1 Merger. On the Effective Date, Baker shall be merged with and
into Hancock Bank in accordance with the provisions of this Agreement and in
accordance with the provisions of applicable law, rules and regulations. For
federal income tax purposes, it is intended that the Merger shall qualify as a
non-taxable reorganization under and in accordance with Section 368(a)1(A) and
Section 368 (a)(2)(D) of the Internal Revenue Code of 1986, as amended, and the
applicable IRS regulations. The Parties expect that the Merger will further
certain of their business objectives, including, and without limitation, the
expansion of operations as a financial institution.
2.2 Effect of Merger. Upon consummation of the Merger, the
separate existence of Baker shall cease and Hancock Bank shall continue as the
surviving corporation. The name of Hancock Bank, as the surviving corporation,
shall by virtue of the Merger remain unchanged. On the Effective Date, as
hereinabove provided, all of the assets and property of every kind and
character, real, personal and mixed, tangible and intangible, choses in action,
rights, and credits then owned by Baker, or which would inure to it, shall
immediately by operation of law and without any conveyance or transfer or
without any further action or deed, be vested in and become the property of
Hancock Bank, which shall have, hold, and enjoy the same in its own right as
fully and to the same extent as the same were possessed, held, and enjoyed by
Baker prior to such merger; and Hancock Bank shall be deemed to be and shall be
a continuation of the original entities and all of the rights and obligations
of Baker shall remain unimpaired, and Hancock Bank, on the Effective Date of
the Merger shall succeed to all such rights, obligations, duties and
liabilities connected therewith.
2.3 Notice to Depositors. Hancock Bank shall give notice of the
Merger within the time and in the manner required by law or regulation, if any,
to depositors of Baker.
ARTICLE 3
CONVERSION OF STOCK
3.1 Conversion Amount. The Parties agree that, by virtue of the
Merger, shares of Baker common stock shall be converted into shares of HHC
common stock. The conversion amount shall be determined based on 1.5 times the
book value of the outstanding stock of Baker calculated as of the Valuation
Date, except $86,625 representing the first quarter, 1994 dividend, which shall
be based on 1.0 times said amount.
3
9
3.2 Conversion. Shares of HHC common stock shall be issued to
holders of Baker common stock plus cash for any fractional shares as follows:
a. HHC shall calculate the conversion amount for
each of Baker's stockholders by dividing the total conversion amount
by the number of Baker's shares outstanding on the Effective Date and
multiplying the per share value so determined by the number of shares
owned by each holder as shown on a certified list prepared by Baker on
the Effective Date.
b. HHC shall issue to each Baker stockholder the
number of whole shares of HHC's stock calculated by dividing the
conversion amount for each stockholder by the market value of a share
of HHC's common stock. Market value shall be deemed to mean the
average of the daily average of the high and low prices of such common
stock, as reported on the National Market Systems NASDAQ quotation
service ("NASDAQ") for all of the trading days during the month of
December, 1993 ("Market Value").
c. Notwithstanding any other provision hereof,
each holder of shares of Baker's common stock who would otherwise have
been entitled to receive a fraction of a share of HHC's common stock
(after taking into account all certificates delivered by such holder)
shall receive, in lieu thereof, cash in an amount equal to such
fractional part of a share of HHC's common stock multiplied by the
Market Value of such common stock.
d. On or after the Effective Date, each holder
of a certificate or certificates theretofore representing outstanding
shares of Baker's common stock (any such certificate being hereinafter
referred to as a "Certificate") other than a holder of Certificates
who has elected to exercise dissenters' rights pursuant to Louisiana
Revised Statutes 6:376 shall surrender the same to HHC or its agent
for cancellation and each such holder shall be entitled upon such
surrender to receive in exchange therefor certificate(s) representing
the number of shares of HHC common stock to which such holder is
entitled as provided herein and a check in an amount equal to the
amount of cash, if any, without interest, to which such holder is
entitled. Immediately after the Effective Date, HHC shall mail to each
holder of record of Baker's common shares a form letter of transmittal
and instructions, in the form of that set forth in Exhibit A, for use
in effecting the surrender of the Certificates representing shares of
Baker common stock to be exchanged for shares of HHC common stock and
cash pursuant to this Agreement. Until so surrendered, each
Certificate shall be deemed for all purposes to evidence ownership of
the number of shares of HHC common stock into which the shares
represented by such Certificates have been changed or converted as
aforesaid. Certificates surrendered for exchange by any person who is
an "affiliate" of Baker for purposes of Rule 145(c) under the
Securities Act of 1933, as amended, shall not be exchanged for
certificates representing shares of HHC common stock until Baker has
received the written
4
10
agreement of such person contemplated by Article 4 of this Agreement.
If any certificate for shares of Baker common stock is to be issued in
a name other than that in which a Certificate surrendered for exchange
is issued, the Certificate so surrendered shall be properly endorsed
and otherwise in proper form for transfer.
e. HHC reserves the right to withhold any cash
dividends payable in respect to Certificates not surrendered by the
holder thereof after the sixth (6th) month following the Effective
Date. Cash dividends so withheld will be paid to the holder thereof,
without interest, upon proper presentation as provided in this Section
3.2. In the event that any such holder fails to surrender either such
Certificate or the documents and information contemplated by the
letter of transmittal and instructions, set forth in Exhibit A
attached hereto, on or before the fifth (5th) anniversary of the
Effective Date, HHC shall not have any obligation to deliver the
amount to which any such holder would have been entitled in-accordance
with the provisions of this Agreement and any such holder shall not be
entitled to receive from HHC any amount in substitution and exchange
for each share cancelled and extinguished in accordance with this
Agreement.
f. Upon the Effective date, the stock transfer
books of Baker shall be closed and no transfer of Baker common stock
shall thereafter be made or recognized. Any other provision of this
Agreement notwithstanding, neither HHC or its agent nor any party to
the Merger shall be liable to a holder of Baker common stock for any
amount paid or property delivered in good faith to a public official
pursuant to any applicable abandoned property, escheat or similar law.
g. No conversion under this Article 3 shall be
made in respect of any share of Baker common stock as to which a
shareholder of Baker has elected to exercise dissenters' rights
pursuant to Louisiana Revised Statute 6:376, if any, until such time
as such shareholder shall have effectively lost dissenters' rights.
3.3 Adjustments. It is understood that the book value of Baker as
reflected in its books and records may not be complete as of the Valuation Date
due to lack of complete information concerning Baker's operations through such
date and that certain transactions occurring on the Valuation Date may not have
been posted on such date or are carried in Baker's suspense accounts as of the
Valuation Date. Baker, as soon as possible after the Valuation Date, shall
provide HHC with a Statement of Financial Condition as of the Valuation Date
reflecting the balances of all asset, liability and stockholders' equity
accounts included in Baker's books and records maintained in accordance with
generally accepted accounting principles consistently applied. HHC shall have
access to Baker's books and records in order to confirm to its satisfaction
that all material items have been recorded and that the assets and liabilities
are fairly reported in Baker's Statement of Financial Condition. In the event
any omissions or errors are discovered, the Parties agree to make any required
adjustments to the Statement of Financial Condition. The Parties agree that the
process of
5
11
financial statement preparation, review and adjustment, if necessary, should be
completed as soon as possible so that closing can occur on the Effective date.
ARTICLE 4
BAKER'S COVENANTS AND AGREEMENTS
4.1 Operation of Business. Between the date hereof and the
Effective Date, Baker will operate its business solely in the ordinary course
consistent with prudent business practices and in compliance with all
applicable laws, regulations and rules; and, without prior written consent of
HHC, it will not:
a. Amend or otherwise change its articles of
incorporation or bylaws, as each such document is in effect on the
date hereof;
b. Issue or sell, or authorize for issuance or sale,
the shares of Baker or any additional shares of any class of capital
stock of Baker;
c. Issue, grant, or enter into any subscription,
option, warrant, right, convertible security, or other agreement or
commitment of any character obligating Baker to issue securities;
d. Declare, set aside, make, or pay any dividend or
other distribution with respect to its capital stock, provided,
however, that Baker shall to the extent lawfully permitted declare and
pay dividends for the purpose of allowing Baker's stockholders to
receive the normal and customary fourth quarter, 1993 and first
quarter, 1994 dividend in the amount of $86,625, respectfully, subject
to the provisions and limitations set forth in Article 3 herein;
e. Redeem, purchase, or otherwise acquire, directly or
indirectly, any of its capital stock;
f. Authorize any capital expenditure(s) which,
individually or in the aggregate, exceed $20,000;
g. Extend any new, or renew any existing, loan, credit,
lease, or other type of financing which individually exceeds $50,000;
h. Except in the ordinary course of business, sell,
pledge, dispose of, or encumber, or agree to sell, pledge, dispose of,
or encumber, any assets of Baker;
i. Acquire (by merger, consolidation, lease or other
acquisition of stock, ownership interests or assets) any corporation,
partnership, or other business organization or division thereof, or
enter into any contract, agreement, commitment,
6
12
or arrangement with respect to any of the foregoing, (ix) excluding
normal and customary banking transactions, incur any indebtedness for
borrowed money, issue any debt securities, or enter into or modify any
contract, agreement, commitment, or arrangement with respect thereto,
(x) enter into, amend, or terminate any employment agreement,
relationship or responsibilities with any director, officer, or key
employee or representative of Baker, or enter into, amend, or
terminate any employment agreement with any other person otherwise
than in the ordinary course of business, or take any action with
respect to the grant or payment of any severance or termination pay
except as expressly consented to in writing by HHC;
j. Enter into, extend, or renew any lease for office
or other space;
k. Except as required by law, adopt or amend any bonus,
profit sharing, compensation, stock option, pension, retirement,
deferred compensation, employment, or other employee benefit plan,
agreement, trust, fund, or arrangement for the benefit or welfare of
any officer, employee or representative of Baker;
l. Grant any increase in compensation to any director,
officer, or key employee or representative of Baker;
m. Grant any increase in compensation to any other
employee or representative of Baker except in the ordinary course of
business consistent with past practice; or
n. Take any action or omit to take any action which
would cause any of Baker's representations or warranties to be untrue
or misleading in any material respect or any covenant of Baker under
this Agreement incapable of being performed;
o. Subject to the fiduciary duty of the Board of
Directors, encourage, solicit or initiate offers from or negotiate
with, or provide information or assistance to, any party other than
HHC with respect to a merger, sale of assets, or similar transaction
involving it, its common stock or its assets; provided, however, that
if it receives, from time to time, an inquiry, proposal, plan, offer,
bid or contract from any third party with respect to any of the
foregoing, it will promptly notify HHC, and, subject to the fiduciary
duty of the Board of Directors, will promptly furnish HHC with a copy
of any document received or a summary of any other communication with
respect thereto; or
p. Agree in writing or otherwise to do any of the
foregoing.
4.2 Preservation of Business. Between the date hereof and the
Effective Date, Baker will use its best efforts to preserve its existing
business and to keep its business
7
13
organization intact, including its present relationships with its employees and
customers and others having business relations with it.
4.3 Insurance. Pending the Closing, Baker shall cause the real
property owned by Baker to be insured at full insurable value against all
insurable risks under policies with reasonable deductibles and in full
compliance with any co-insurance provision.
4.4 Stockholders' Meeting. Baker will promptly give proper notice
of a stockholders' meeting for the purpose of approving this Agreement. Said
notice shall include notice of dissenter's rights, if any, and shall solicit
stockholders' proxies in favor of this Agreement, and all notices shall be
given in accordance with all applicable laws, regulations, and rules. Baker and
its directors and principal stockholders will, to the extent not inconsistent
with their fiduciary duties, support and vote in favor of a stockholder
resolution approving this Agreement.
4.5 Affiliates. Baker and HHC shall cooperate and use their best
efforts to identify those persons who may be deemed to be "affiliates" of Baker
within the meaning of Rule 145 under the Securities Act of 1933 (the
"Securities Act"). Baker shall use its best efforts to cause each person so
identified to deliver to HHC, no later than 30 days prior to the Effective
Date, a written agreement in the form set forth in Exhibit B attached hereto,
satisfactory to HHC that such person will not sell, pledge, transfer or
otherwise dispose of the shares of HHC's common stock to be received by such
person pursuant to this Agreement except in compliance with applicable
provisions of the Securities Act and rules and regulations thereunder and until
such time as financial results covering at least 30 days of combined operations
of HHC and Baker have been published within the meaning of Section 201.01 of
the Securities and Exchange Commission's Codification of Financial Reporting
Policies. If the transaction contemplated hereby will qualify for pooling of
interests accounting treatment, shares of HHC's common stock received pursuant
to this Agreement by such affiliates shall not be transferable until such time
as financial results covering at least 30 days of combined operations of HHC
and Baker have been published within the meaning of Section 201.01 of the
Securities and Exchange Commission's Codification of Financial Reporting
Policies, regardless of whether each such affiliate has provided the written
agreement referred to in this section. HHC shall be entitled to place
appropriate legends on the certificates evidencing shares of HHC's common stock
to be received pursuant to this Agreement by such affiliates and to issue
appropriate stop transfer instructions to the transfer agent for HHC's common
stock.
4.6 Due Diligence. From the date of this Agreement to the
Effective Date, Baker shall afford to Hancock Bank (including without
limitation, Hancock Bank's counsel, financial advisers and independent
accountants) full access to the properties, personnel, books, records and
affairs of Baker and will furnish such information about its business and
properties as may be reasonably requested.
8
14
4.7 Surrender of Charter. Concurrent with the Merger, and receipt
of appropriate regulatory approval, Baker's Charter will be surrendered to the
OFI.
4.8 Baker Financial and Other Reports. Baker has made or will make
available to HHC and Hancock Bank the following statements and other reports
and documents ("Baker Financial Statements"):
a. Baker's audited financial statements for the years
ended December 31, 1991, 1992 and 1993;
b. All correspondence with the OFI and the FDIC from
January 1, 1993 through the date of Closing (for inspection, but
copying may be restricted by legal limitations); and
c. Such additional financial or other information as
may be required for the regulatory applications and Registration
Statement in connection with the consummation of the Merger (subject
to any legal limitations).
ARTICLE 5
BAKER'S REPRESENTATIONS AND WARRANTIES
Baker represents and warrants to HHC and Hancock Bank as follows:
5.1 Organization and Authority. Baker is a Louisiana state
chartered bank duly organized, validly existing and in good standing under the
laws of the State of Louisiana and has the corporate power and authority to own
its property and assets and to carry on its business as it is now being
conducted.
5.2 Authorization. The execution, delivery and performance of this
Agreement by Baker and the consummation of the transactions contemplated hereby
have been duly authorized by the Board of Directors of Baker, subject to
regulatory approval. No other corporate proceedings on the part of Baker are
necessary to authorize consummation of this Agreement, except for the approval
of the transaction by Baker's stockholders, and the performance by Baker of the
terms hereof. This Agreement is a valid and binding obligation of Baker
enforceable against Baker in accordance with its terms except as may be limited
by applicable bankruptcy, insolvency, reorganization or moratorium or other
similar laws affecting creditors' rights generally and except that the
availability of equitable remedies is within the discretion of the appropriate
court and except that it is subject to approval by its stockholders and
applicable regulatory agencies.
Neither the execution, delivery or performance of this Agreement by
Baker, nor the consummation of the transactions contemplated hereby, nor
compliance by Baker with any of the provisions hereof, will (a) in any material
respect violate, conflict with, or result in a breach of any provision of, or
constitute a default (or an event which, with notice or lapse
9
15
of time or both, would constitute a default) under or result in the termination
of, or accelerate the performance required by, or result in a right of
termination or acceleration, or the creation of any lien, security interest,
charge or encumbrance upon any of the properties or assets of Baker under any
terms, conditions or provisions of (i) Baker's Charter or Bylaws or other
charter documents of Baker, or (ii) any material note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other instrument or
obligation to which Baker is a party or by which Baker may be bound, or to
which Baker or the properties or assets of it may be subject, or (b) violate in
any material respect any judgment, ruling, order, writ, injunction, decree,
statute, rule or regulation applicable to Baker or any of its properties or
assets.
5.3 Baker Financial and Other Reports. Baker's Financial
Statements (i) will have been prepared in accordance with generally accepted
accounting principles, consistently applied, (ii) will present fairly the
results of operations and financial position of Baker for the periods and at
the times indicated, and (iii) will be true and correct in all material
respects for the periods and at the times indicated.
5.4 Investment and Loan Portfolios. All investment securities
shown in Baker's Financial Statements at September 30, 1993, or which were
purchased after September 30, 1993 but before the Effective Date were and will
be carried in the aggregate at no more than cost adjusted for amortization of
premiums and accretion of discounts, i.e., historical costs. All loans shown in
Baker's Financial Statements at September 30, 1993 or which were entered into
after September 30, 1993 but before the Effective Date were and will be made
for good, valuable and adequate consideration in accordance with prudent
business standards and in substantial compliance with all laws, regulations and
rules and are enforceable, valid, true and genuine and what they purport to be
and all security interests constitute good and valid first liens against the
collateral. Substantially, all of the loans which were made based on the value
of collateral are secured by collateral having value at the time the loan was
made at least equal to the amount of the loan. Baker owns all interests in
loans on its books and has not sold or agreed to sell any interest in such
loans except as disclosed on its books and/or in Baker's Financial Statements.
Baker has not agreed to any modification of loan terms, released any collateral
or borrowers or otherwise made any agreements regarding the loans except as
disclosed in writing in the loan files; and Baker has no knowledge of any
defenses or offsets by any borrower to any loan. Baker has the exclusive right
to service all loans owned by it. Baker's allowance for possible loan losses
shown on Baker's Financial Statements as of September 30, 1993, or which was
allocated after September 30, 1993, but before the Valuation Date will include
those amounts required by applicable regulations and will be adequate to absorb
reasonably anticipated losses in the loan portfolios of Baker in view of the
size and character of such portfolios, current economic conditions, and other
pertinent factors, and no facts have subsequently come to the attention of
management of Baker which would cause it to restate in any material way the
level of such allowance for possible losses on loans.
10
16
5.5 Capital Structure of Baker. On the date hereof, the
authorized capital of Baker consists of 57,750 shares of common stock. On the
date hereof 57,750 shares of such authorized common stock are issued and
outstanding, all of which is validly issued, fully paid and nonassessable.
There are no outstanding options, conversion rights, warrants, calls, rights,
commitments or agreements to issue any form of stock of Baker. There are no
outstanding obligations or commitments to purchase, redeem or otherwise acquire
any outstanding shares of common stock of Baker.
5.6 Title to Properties. Baker has good and marketable fee simple
title to all its owned properties and assets, real and personal, subject to no
mortgage, pledge, lien, encumbrance, security interest or charge, except such
minor imperfections of title which do not materially detract from the value of
the properties, and Baker has no knowledge of any actual or claimed hazardous
waste, toxic substance or environmental contaminant in, on or under said real
property. A list of all leased or non-owned property used by Baker is attached
as Schedule A and copies of all leases and/or contracts relating to such leases
are attached to said Schedule and no default exists as to any such lease or
contract.
5.7 Accuracy of Information. To the best of Baker's and its
officers' and directors' knowledge, all information furnished by Baker to HHC
and Hancock Bank relating to the assets, liabilities, and this Agreement is
accurate, and Baker has not omitted to disclose any information which is or
would be material to this Agreement.
5.8 Compliance with Laws and Contracts. To the best of Baker's and
its officers' and directors' knowledge, Baker is not in violation of any laws,
regulations, or agreements to which it is a party and has not failed to file
any material reports required by any governmental or other regulatory body.
5.9 Taxes. Baker will make available to HHC and Hancock Bank
copies of all the federal and state tax returns for Baker and all tax
adjustments and notices related thereto for the five fiscal years immediately
preceding the date of this Agreement. Baker has filed all material federal,
state and local tax returns due in respect of any of its businesses or
properties in a timely fashion and has paid or made appropriate provisions for
all amounts due as shown on such returns. All such returns fairly reflect in
all material respects the information required to be presented therein. All
provisions for accrued but unpaid taxes contained in the Baker Financial
Statements were made in accordance with generally accepted accounting
principles and in the aggregate do not materially fail to provide for
reasonable expected tax liabilities.
5.10 Litigation. To the best of Baker's and its officers' and
directors' knowledge, Baker has no knowledge of any pending or threatened
litigation, claim or other proceeding before any judicial, administrative or
regulatory agency or tribunal to which Baker is a party or to which the
property of Baker is subject, and Baker has no knowledge of any facts which
could give rise to any presently unasserted claim against Baker or its
property, except as listed on Schedule B attached hereto. For purposes of this
provision, the parties agree that
11
17
as to pending and threatened litigation and as to claims, only those matters as
to which liability is asserted against Baker for more than $10,000.00 shall be
considered material and listed on the Schedule. However, all matters such as
injunctions, restraining orders, and cease and desist orders shall be listed.
5.11 Registration and Proxy Statements. None of the information
supplied or to be supplied by Baker for inclusion in (a) the Registration
Statement to be filed by HHC with the SEC (b) the Notice of Meeting and Proxy
Statement to be mailed by Baker to its stockholders in connection with the
meeting referred to in Section 4.4 hereof (the "Proxy Statement"), and (c) any
other documents to be filed with the SEC or any regulatory agency in connection
with the transactions contemplated hereby will, as amended or supplemented at
the time the Registration Statement is filed with the SEC or at the time it
becomes effective, at the time the Proxy Statement is mailed to holders of
Baker's stock, as may be amended at the time of Baker Stockholders' Meeting,
and at the time of filing of such other documents, respectively, contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. All documents,
financial statements, or other information or materials which Baker shall
provide for filing with the SEC and any regulatory agency in connection with
the Merger will comply with generally accepted accounting principles.
5.12 Commitments and Contracts. Baker is not a party or subject to
any of the following (whether written or oral, express or implied):
a. Except as listed on Schedule C attached
hereto and with a complete copy attached thereto, any employment
contract (including any obligations with respect to severance or
termination pay liabilities or fringe benefits) with any present or
former officer, director, employee or consultant (other than those
which are terminable at will by Baker);
b. Except as listed on Schedule C attached
hereto and with a complete copy attached thereto, any plan or contract
providing for any bonus, pension, option, deferred compensation,
retirement payment, profit sharing or similar arrangement with respect
to any present or former officer, director, employee or consultant; or
c. Any contract not made in the ordinary course
of business containing covenants which limit the ability of Baker to
compete in any line of business or with any person or which involves
any restriction of the geographical area in which, or method by which,
Baker may carry on its business (other than as may be required by law
or applicable regulatory authorities).
5.13 Liabilities. To the best of Baker's and its officers' and
director's knowledge, all liabilities of Baker were, and will be created, for
good, valuable and adequate
12
18
consideration in accordance with prudent business standards and in substantial
compliance with all laws, regulations and rules and the accounts or evidence of
ownership of accounts are and will be genuine, true, valid and enforceable in
accordance with their written terms. Baker has not agreed to any modification
or extension of accounts or account terms or otherwise made any agreements
regarding such accounts except as disclosed in writing on the books and records
of Baker; and Baker has no knowledge of any claim of ownership to any account
other than as shown on the written ownership records of Baker for each account,
and Baker has no knowledge of any alleged improper or wrongful withdrawal or
payment of any such account.
5.14 Vote Required. The affirmative vote of the holders of at least
two-thirds of the outstanding shares of Baker common stock, is the only vote of
the stockholders of Baker necessary to approve the Merger and other
transactions contemplated hereby.
5.15 Continuity of Interest. To the best knowledge of Baker, there
is no plan or intention by the stockholders of Baker to sell, exchange, or
otherwise dispose of a number of shares of HHC common stock, to be received in
the Merger that would reduce Baker stockholders' ownership of the HHC common
stock to a number of shares having a value, as of the date of the Merger, of
less than 50% of the value of all of the formerly outstanding Baker common
stock as of the same date. For purposes of this assumption, shares of Baker
common stock surrendered by dissenters or exchanged for cash in lieu of
fractional shares of Baker common stock will be treated as outstanding Baker
common stock on the date of the Merger. Furthermore, shares of Baker common
stock and shares of HHC common stock held by Baker stockholders and otherwise
sold, redeemed, or disposed of prior to or subsequent to the Merger are
considered in this assumption. See Exhibit B for additional representations
regarding continuity of shareholder interest under Section 368(a)(1)(A) and
Section 368(a)(2)(D) of the Internal Revenue Code of 1986, as amended.
5.16 Continuity of Business Enterprise. Baker operates at least
one significant historic business line, namely, financial services, and owns at
least a significant portion of its historic business assets within the meaning
of Treasury Regulation Section 1.368-1(d).
ARTICLE 6
HHC'S REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
HHC represents and warrants to Baker as follows: for purposes of this
Agreement, except in Section 6.1 and where the context requires otherwise, any
reference to HHC in this Article 6 shall be deemed to include HHC and Hancock
Bank and any reference to "material", material adverse effect or a similar
standard shall refer to the financial condition, operations or other aspects of
HHC and its subsidiaries including Hancock Bank taken as a whole.
6.1 Organization and Authority. HHC is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Mississippi and has the
13
19
corporate power and authority to own its properties and assets and to carry on
its business as it is now being conducted.
6.2 Capitalization of HHC. As of September 30, 1993, the
authorized capital stock of HHC consisted of 20,000,000 shares of common stock,
of which at September 30, 1993, 7,177,966 such shares were issued and
outstanding.
Other than as permitted pursuant to HHC's Employee Stock Purchase Plan
described in HHC's Proxy Statement for the 1993 stockholders' meeting, and
HHC's Automatic Dividend Reinvestment and Stock Purchase Plan, there are no
other shares of capital stock or other equity securities of HHC outstanding and
no other outstanding options, warrants, scrip, rights to subscribe, calls or
commitments of any character whatsoever relating to, or securities or rights
convertible into or exchangeable for, shares of any capital stock of HHC, or
contracts, commitments, understandings, or arrangements by which HHC was or may
become bound to issue additional shares of its capital stock or options,
warrants or rights to purchase or acquire any additional shares of its capital
stock. However, nothing in this Agreement shall be construed as limiting the
future number and amount of outstanding shares of HHC's stock pending
settlement of this transaction.
6.3 Authorization. The execution, delivery and performance of this
Agreement by HHC and the consummation of the transactions contemplated hereby
have been duly authorized by the Board of Directors of HHC and Hancock Bank,
subject to regulatory approval. No other corporate proceedings on the part of
HHC are necessary to authorize the execution and delivery of this Agreement and
the performance by HHC of the terms hereof. This Agreement is a valid and
binding obligation of HHC enforceable against HHC in accordance with its terms
except as may be limited by applicable bankruptcy, insolvency, reorganization
or moratorium or other similar laws affecting creditors' rights generally and
except that the availability of equitable remedies is within the discretion of
the appropriate court and except that it is subject to approval of applicable
regulatory agencies.
HHC covenants and agrees as follows:
6.4 Conduct of Business. HHC agrees to operate its business solely
in the ordinary course consistent with prudent business practices and in
compliance with all applicable laws, regulations, and rules; but nothing herein
shall be construed as limiting or restricting HHC in its assets, liability, or
capital structure or limiting any action of HHC or its affiliates, nor shall
anything in this Agreement be construed as limiting the future number and
amount of outstanding shares of HHC stock pending settlement of this
transaction.
6.5 Registration of Stock. HHC agrees to register the shares to be
issued to Baker stockholders pursuant to this Agreement with the Securities and
Exchange Commission.
14
20
6.6 Continuity of Business Enterprise. It is the present
intention of HHC to continue at least one significant historic business line of
Baker, namely, financial services, and to use at least a significant portion of
Baker's historic business assets in a business within the meaning of Treasury
Regulation Section 1.368-1(d).
ARTICLE 7
CONDITIONS TO CLOSING
The obligations of Baker, HHC and Hancock Bank under this Agreement,
except as otherwise provided herein, shall be subject to the satisfaction or
waiver of the following conditions on or prior to the Closing:
7.1 Conditions to Each Party's Obligations to Effect the Merger.
The respective obligation of each party to effect the Merger shall be subject
to the following conditions:
a. Stockholder Approval. The Merger shall have been
approved by the requisite vote of the holders of the outstanding
shares of Baker common stock at Baker's Stockholders' Meeting.
b. Regulatory Approvals. The transactions contemplated
by this Agreement shall have been approved by all governing regulatory
authorities, without any condition or requirement that either HHC,
Hancock Bank, or Baker deem burdensome, or which otherwise would have
a material adverse effect on the business, operations, properties,
assets or financial condition of HHC, Hancock Bank, or Baker after the
Effective Date, all conditions required to be satisfied shall have
been satisfied, and all waiting periods relating to such approvals
shall have expired.
c. Registration Statement. The Registration Statement
shall have been declared effective and shall not be subject to a stop
order or any threatened stop order, and all state securities and blue
sky permits or approvals required to consummate the transactions
contemplated by this Agreement shall have been received.
d. Pooling Treatment. HHC shall be satisfied that the
Merger will qualify for accounting by HHC as a pooling of interests
under generally accepted accounting principles and under applicable
rules and regulations of the Securities and Exchange Commission. In
connection therewith, if requested by HHC, HHC shall have received, on
or before the Closing Date, a letter from Deloitte & Touche (or any
other accountants of HHC's choosing) dated as of the Closing Date to
the effect that the transactions contemplated by this Agreement may be
treated by HHC as a "pooling of interests" for accounting purposes.
15
21
e. Tax Opinion. If requested by HHC, HHC and Baker
shall have received an opinion from Heidelberg & Woodliff, P.A. to the
effect that the Merger will constitute a reorganization within the
meaning of Section 368 of the Internal Revenue Code and no gain or
loss will be recognized by those Baker stockholders who exchange their
Baker common stock for HHC common stock, except for cash paid in lieu
of fractional shares or to dissenting stockholders.
7.2 Conditions to Obligations of Baker to Effect the Merger. The
obligations of Baker to effect the Merger shall be subject to the following
additional conditions:
a. Representations and Warranties. The representations
and warranties of HHC set forth in this Agreement shall be true and
correct in all material respects as of the date of this Agreement and
as of the Closing as though made at and as of the Closing, except as
otherwise contemplated by this Agreement or consented to in writing by
Baker.
b. Performance of Obligations. HHC shall have performed
in all material respects all obligations required to be performed by
it under this Agreement prior to the Closing.
c. Legal Opinion. An opinion of HHC's legal counsel
shall be delivered to Baker dated the Closing Date and in form and
substance reasonably satisfactory to Baker and its counsel to the
effect that:
i. HHC is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of Mississippi, and has corporate authority to own and
operate its businesses and properties and to carry on its
business as presently conducted by it;
ii. Hancock Bank is a Louisiana state chartered
bank, duly organized and validly existing and in good standing
under the laws of the State of Louisiana, and has corporate
authority to own and operate its businesses and properties and
to carry on its business as presently conducted by it;
iii. HHC and Hancock Bank had and have corporate
authority to make, execute and deliver this Agreement, it has
been duly authorized and approved by all necessary corporate
action of HHC and Hancock Bank and has been duly executed and
delivered and is as of the Closing Date its valid and binding
obligation subject, however, to bankruptcy, insolvency and
similar laws affecting the enforcement of creditors' rights
generally and to the availability of equitable remedies in
general;
iv. All required regulatory approvals have been
obtained; and
16
22
v. To such counsel's knowledge after inquiry,
there is no litigation or proceeding pending or threatened
against HHC or Hancock Bank relating to the participation in
or consummation of this Agreement by HHC or Hancock Bank and
consummation will not violate any other contract, agreement,
charter or bylaw of HHC or Hancock Bank.
7.3 Conditions to Obligations of HHC and Hancock Bank to Effect
the Merger. The obligations of HHC and Hancock Bank to effect the Merger shall
be subject to the following additional conditions:
a. Representations and Warranties. The representations
and warranties of Baker set forth in this Agreement shall be true and
correct in all material respects as of the date of this Agreement and
as of the Closing as though made at and as of the Closing, except as
otherwise contemplated by this Agreement or consented to in writing by
HHC and Hancock Bank.
b. Performance of Obligations. Baker shall have
performed in all material respects all obligations required to be
performed by it under this Agreement prior to the Closing.
c. Legal Opinion. An Opinion of Baker's legal counsel
shall be delivered to HHC dated the Closing Date, and in form and
substance reasonably satisfactory to HHC to the effect that:
i. Baker is a Louisiana state chartered bank,
duly organized and validly existing and in good standing under
the laws of the State of Louisiana, and has corporate
authority to own and operate its businesses and properties and
to carry on its business as presently conducted by it;
ii. Baker had and has corporate authority to
make, execute and deliver this Agreement and it has been duly
authorized and approved by all necessary corporate action of
Baker and has been duly executed and delivered and is as of
the Closing Date its valid and binding obligation subject,
however, to bankruptcy, insolvency and similar laws affecting
the enforcement of creditors' rights generally and to the
availability of equitable remedies in general;
iii. All required regulatory approvals have been
obtained;
iv. To such counsel's knowledge after inquiry,
there is no litigation or proceeding pending or threatened
against Baker relating to the participation in or consummation
of this Agreement by Baker and consummation will not violate
any other contract, agreement, charter or bylaw of Baker; and
17
23
v. Baker has complied with all laws and
regulations relating to dissenters' rights and all stock in
Baker will be acquired by HHC pursuant to the terms of this
Agreement and that the title and/or ownership interest in the
shares of Baker stock are as represented in Baker's
certificate at closing and that no known dispute exists as to
the title and/or ownership of any such shares.
ARTICLE 8
CLOSING
8.1 Closing. The Closing shall be held at the offices of Hancock
Bank or such other place as HHC and Baker shall mutually designate.
8.2 Deliveries at Closing. At the Closing, all documents and
instruments shall be duly and validly executed and delivered by HHC to Baker,
and possession of all liabilities and assets shall be transferred and
delivered.
8.3 Documents. The Parties shall execute any and all documents
reasonably requested by them or their legal counsel for the purpose of
effecting the transaction contemplated, including but not limited to the
following:
a. endorsement, negotiation, and/or assignment of all
original notes and Security Agreements relating to all loans;
b. warranty deeds for the real property;
c. commitments for owners title insurance for the real
property;
d. such other endorsements, assignments or other
conveyances as may be appropriate or necessary to effect the transfer
to HHC of the assets, duties, responsibilities and obligations as
referred to herein; and
e. listing of dissenting stockholders, if any, including
name, address, and number of shares owned.
ARTICLE 9
EMPLOYMENT MATTERS
9.1 Employees. Neither HHC nor Hancock Bank shall be obligated to
retain in any capacity any of Baker's officers, directors, or employees or to
pay any stipulated compensation to any employees. Hancock Bank will make
reasonable efforts to maintain compensation levels for any retained personnel
commensurate with the employees' experience and qualifications, upon such terms
as Hancock Bank desires. With regard to any
18
24
retained employee, HHC shall be free of any obligation to honor any past
agreement of Baker to such person.
Baker's group health and life benefit plan will be continued through
1994 and effective January 1, 1995, all retained employees will be eligible to
participate in Hancock Bank's group health and life benefit plan. Retained
employees will be given full credit for past service and Hancock Bank will
waive pre-existing medical conditions for health insurance purposes as to all
retained personnel.
9.2 Retirement Plan. Baker currently maintains a 401(k) Plan
which will remain operative and in effect through December 31, 1994. Hancock
Bank will make the normal and customary match to the 401(k) Plan for the
calendar year 1994. However, Baker's 401(k) Plan will be terminated on
December 31, 1994 and distributed to vested employees of Baker in accordance
with the terms of the 401(k) Plan. The 401(k) Plan trustees will be
responsible for the termination, allocation and distribution of plan assets and
related notices and other reporting responsibilities to the IRS, Department of
Labor and other government agencies. All such termination costs will be paid
from the 401(k) Plan assets.
Effective January 1, 1995, all retained employees will be eligible to
enter the Hancock Bank Profit Sharing Plan and Hancock Bank Pension Plan with
full credit for all prior service for vesting. Effective January 1, 1995, all
retained employees will be eligible to participate in all other employment
benefit plans.
9.3 Notices. Baker shall be responsible for notifying its
employees of the terms of this Agreement as it affects and/or relates to them
and for complying with any applicable laws regarding such notices.
ARTICLE 10
REMEDIES
For purposes of this Agreement, any reference to HHC in this Article
10 shall be deemed to include HHC and Hancock Bank.
10.1 Parties' Joint Remedies. In the event regulatory authorities
impose requirements which do not materially alter this Agreement and which are
not otherwise burdensome or objectionable to the Parties, then the Parties
agree to amend this Agreement to conform to such regulatory requirements, and
specific performance shall be available as a remedy for this purpose.
10.2 Baker's Remedies. In the event HHC breaches this Agreement,
then Baker shall give HHC notice of the breach, and HHC shall have a reasonable
amount of time to cure the breach, and HHC shall be liable for such economic
damages that are the direct result of any uncured breach, but HHC shall not be
liable for consequential or punitive damages. If HHC breaches a warranty,
representation or covenant that does not materially
19
25
affect the entire transaction, then the amount of the damages shall be mutually
agreed upon by the Parties, and if they cannot agree as to the damage, then by
an arbitrator mutually agreeable to them, and the damage determined shall be
conclusively binding on both Parties and shall be treated as an adjustment to
the Conversion Amount.
10.3 HHC's Remedies. In the event Baker breaches this Agreement,
then HHC shall give Baker notice of the breach, and Baker shall have a
reasonable amount of time to cure the breach, and Baker shall be liable for
such economic damages that are the direct result of any uncured breach, but
Baker shall not be liable for consequential or punitive damages. If Baker
breaches a warranty, representation or covenant that does not materially affect
the entire transaction, then the amount of the damages shall be mutually agreed
upon by the Parties, and if they cannot agree as to the damage, then by an
arbitrator mutually agreeable to them, and the damage determined shall be
conclusively binding on both Parties and shall be treated as an adjustment to
the Conversion Amount.
10.4 Attorney Fees. Each Party shall bear its own attorney fees
except attorney fees may be awarded by the presiding judge if the trier of fact
finds that the other Party has committed fraud against the other Party.
ARTICLE 11
TERMINATION
11.1 Termination. This Agreement may be terminated, either before
or after approval by the stockholders of Baker as follows:
a. At any time on or prior to the Effective
Date, by the mutual consent in writing of the Board of Directors of
the Parties hereto;
b. By HHC if the Merger will not qualify for
accounting by HHC as a pooling of interests under generally accepted
accounting principles and under applicable rules and regulations of
the Securities and Exchange Commission; or
c. By the Board of Directors of HHC or Hancock
Bank in writing or by the Board of Directors of Baker in writing, if
the Merger shall have not become effective on or before December 31,
1994, unless the absence of such occurrence shall be due to the
failure of the Party seeking to terminate this Agreement to perform
each of its obligations under this Agreement required to be performed
by it on or prior to the Effective Date.
ARTICLE 12
APPRAISAL RIGHTS
12.1 Appraisal Rights of Baker. Notwithstanding any other
provision of this Agreement to the contrary, dissenting stockholders of Baker
who comply with the procedural
20
26
requirements of the Louisiana Revised Statutes 6:376 will be entitled to
receive payment of the fair cash value of their shares if the Merger is
effected upon approval by less than eighty percent of Baker's total voting
power.
ARTICLE 13
MISCELLANEOUS
13.1 Entire Agreement. This Agreement embodies the entire
understanding of the Parties in relation to the subject matter herein and
supersede all prior understandings or agreements, oral or written, between the
Parties hereto.
13.2 Survival of Representations, Warranties and Agreements. The
representations, warranties and agreements made herein shall survive the
Closing.
13.3 Headings. The headings and subheadings in this Agreement,
except the terms identified for definition in Article 1 and elsewhere in this
Agreement, are inserted for convenience only and shall not affect the meaning
or interpretation of this Agreement or any provision hereof.
13.4 Duplicate Originals. This Agreement may be executed in any
number of duplicate originals, any one of which when fully executed by all
Parties shall be deemed to be an original without having to account for the
other originals.
13.5 Governing Law. This Agreement and the rights and obligations
hereunder shall be governed and construed by the laws of the State of
Mississippi.
13.6 Successors; No Third Party Beneficiaries. All terms and
conditions of this Agreement shall be binding on the successors and assigns of
Baker, HHC and Hancock Bank. Except as otherwise specifically provided in this
Agreement, nothing expressed or referred to in this Agreement is intended or
shall be construed to give any person other than Baker, HHC or Hancock Bank any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provisions contained herein, it being the intention of the Parties
hereto that this Agreement, the obligations and statements of responsibilities
hereunder, and all other conditions and provisions hereof are for the sole and
exclusive benefit of Baker, HHC and Hancock Bank and for the benefit of no
other person.
13.7 Modification; Assignment. No amendment or other modification
of any part of this Agreement shall be effective except pursuant to a written
agreement subscribed by the duly authorized representatives of all of the
Parties hereto. This Agreement may not be assigned without the express written
consent of both Parties.
13.8 Notice. Any notice, request, demand, consent, approval or
other communication to any Party hereof shall be effective when received and
shall be given in writing, and delivered in person against receipt thereof, or
sent by certified mail, postage
21
27
prepaid or courier service at its address set forth below or at such other
address as it shall hereafter furnish in writing to the others. All such
notices and other communications shall be deemed given on the date received by
the addressee or its agent.
Baker
First State Bank & Trust Company of East Baton Rouge Parish
3033 Ray Weiland
Baker, Louisiana 70714
Attn: W. R. Allison, Chairman of the Board
HHC
Hancock Holding Company
Post Office Box 4019
Gulfport, MS 39502
Attn: Mr. George A. Schloegel, Vice Chairman
Copy to: Carl J. Chaney, Esquire
Heidelberg and Woodliff
P. O. Box 23040 Jackson, MS 39225
or
Suite 1400
125 South Congress
Jackson, Mississippi 39201
Hancock Bank
Hancock Bank of Louisiana
Post Office Box 591
Baton Rouge, Louisiana 70821
Attn: Mr. A. Bridger Eglin, President
Copy to: Carl J. Chaney, Esquire
Heidelberg and Woodliff
P. O. Box 23040 Jackson, MS 39225
or
Suite 1400
125 South Congress
Jackson, Mississippi 39201
13.9 Waiver. Baker, HHC and Hancock Bank may waive their respective
rights, powers or privileges under this Agreement; provided that such waiver
shall be in writing; and further provided that no failure or delay on the part
of Baker, HHC or Hancock Bank
22
28
to exercise any right, power or privilege under this Agreement will operate as
a waiver thereof, nor will any single or partial exercise of any right, power
or privilege under this Agreement preclude any other or further exercise
thereof or the exercise of any other right, power or privilege by Baker, HHC or
Hancock Bank under the terms of this Agreement, nor will any such waiver
operate or be construed as a future waiver of such right, power or privilege
under this Agreement.
13.10 Costs, Fees and Expenses. Each Party hereto agrees to pay all
costs, fees and expenses which it has incurred in connection with or incidental
to the matters contained in this Agreement, including without limitation any
fees and disbursements to its accountants and counsel, except that HHC or
Hancock Bank will bear all costs and fees related to filing for regulatory
approval of this Merger Agreement and filing the Registration Statement with
the SEC. Baker will be responsible for the cost of its accountants and legal
counsel and will bear all costs related to conducting and obtaining
stockholders' approval of the Merger.
13.11 Press Releases. Baker and HHC shall consult with each other as
to the form and substance of any press release related to this Agreement or the
transactions contemplated hereby, and shall consult each other as to the form
and substance of other public disclosures related thereto, provided, however,
that nothing contained herein shall prohibit HHC, following notification to
Baker, from making any disclosures which its counsel deems necessary to conform
with requirements of law or the rules of the National Association of Securities
Dealers Automated Quotation System.
13.12 Severability. If any provision of this Agreement is invalid or
unenforceable then, to the extent possible, all of the remaining provisions of
this Agreement shall remain in full force and effect and shall be binding upon
the Parties hereto.
13.13 Mutual Covenant of Best Efforts and Good Faith. The Parties
mutually covenant and agree with each other that they will use their best
efforts to consummate the transactions herein contemplated and that they will
act and deal with each other in good faith as to this Agreement and all matters
arising from or related to it.
[THIS SPACE LEFT BLANK INTENTIONALLY]
23
29
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed by their duly authorized representatives on the date first above
written.
FIRST STATE BANK & TRUST COMPANY
OF EAST BATON ROUGE PARISH
Directors:
/s/ LUCY C. BILLINGS, JR.
/s/ W. R. ALLISON
/s/ GLEN GRIFFIN, JR.
/s/ H. A. GREY
/s/ BRYANT D. HAYES
/s/ J. C. KELLER, JR.
/s/ MANSEL S. SLAUGHTER, SR.
/s/ B. M. STAN, JR.
/s/ A. J. FURR
HANCOCK HOLDING COMPANY
By: /s/ LEO W. SEAL, JR.
Name: Leo W. Seal, Jr.
Title: President and CEO
HANCOCK BANK OF LOUISIANA
By: /s/ A. BRIDGER EGLIN
Name: A. Bridger Eglin
Title: President
30
HANCOCK BANK OF LOUISIANA
Directors:
/s/ G. MISSIMO
/s/ M. ALREDI
/s/ GEORGE A. SCHLOEGEL
/s/ CHARLES A WEBB, JR.
(consisting of a mojority of its
directors)
____________________________________
____________________________________
31
EXHIBIT A
LETTER OF TRANSMITTAL
FOR COMMON STOCK OF FIRST STATE BANK & TRUST COMPANY
OF EAST BATON ROUGE PARISH
BAKER, LOUISIANA
(Please read carefully the Instructions on the Reverse Side of this Letter)
(Affix Label)
_____________________________
Mail or Deliver Letters of Transmittal to: Hancock Bank
ATTN: Ms. Dot Miller
Post Office Box 4019
Gulfport, Mississippi 39502
_______________________, 1994
(Please print date)
Dear Sir:
The undersigned hereby delivers to Hancock Bank, as Transfer Agent,
all shares of common stock of First State Bank & Trust Company of East Baton
Rouge Parish ("First State Bank") owned by the undersigned, which are evidenced
by the certificates enclosed herewith, for exchange and conversion into shares
of Hancock Holding Company, ("Hancock") common stock, $3.33 par value per
share, pursuant to the terms of the Agreement and Plan of Reorganization dated
November 30, 1993 and adopted by First State Bank's stockholders on
____________________, 1994.
FILL IN ONLY IF DELIVERY IS TO BE MADE
TO DIFFERENT ADDRESS THAN SHOWN ON THE ABOVE LABEL
SPECIAL MAILING INSTRUCTIONS
Name:____________________________________
(Type or print)
Address:_________________________________
(Number) (Street)
_________________________________________
(City) (State) (Zip)
Witnessed: Signature of Stockholder(s)
__________________________________ __________________________________
__________________________________
(Sign exactly as name appears on
stock certificate or assignment)
32
INSTRUCTIONS
1. Completion and Delivery of Letter of Transmittal
This Letter of Transmittal must be filled in properly, signed and delivered or
forwarded with the certificate(s) of stock to Hancock Bank, Attn: Ms. Dot
Miller, Post Office Box 4019, Gulfport, Mississippi 39502. SINCE THE RISK OF
LOSS IN TRANSIT IS YOURS, THE USE OF INSURED REGISTERED MAIL IS SUGGESTED IN
TRANSMITTING YOUR CERTIFICATE(S).
2. Signing Letter of Transmittal
The stockholder's name on the Letter of Transmittal should be signed in exactly
the same manner as the name appears on the stock certificate(s). If the
certificate(s) is to be registered in a name other than that currently
appearing on the certificate(s) then the signatures on the certificate(s) must
be guaranteed by a Medallion Member. Signatures by the stockholder(s) should be
witnessed by another person, who shall sign this Letter of Transmittal. When
the Letter of Transmittal is signed by an attorney, administrator, trustee or
guardian, or anyone acting in a fiduciary capacity, or by an officer of a
corporation, the person executing the letter must give his full title in such
capacity, and proper certified evidence of authority to act in such capacity,
reasonably satisfactory to Hancock Bank, must be forwarded with the Letter of
Transmittal. If a certificate is in the name of more than one holder, each
holder named in the certificate should sign. (This shall apply in the event
your certificate is registered in an "and", "or" or "joint tenants with right
of survivorship" capacity.) If a joint tenant has deceased, the surviving joint
tenant must submit to Hancock Bank a certified death certificate.
3. Lost or Destroyed Certificates
If the certificate(s) representing your shares have been either lost or
destroyed, notify Hancock Bank of this fact promptly at its address set forth
on the reverse side hereof. In the event of lost or destroyed certificate(s),
you will be required to take the following steps prior to the transmission and
issuance of new Hancock certificates to you:
(a) The delivery of an indemnity bond in an amount equal
to or greater than the current market value of the
securities, to indemnify and hold Hancock Bank
harmless; and
(b) The presentation of evidence to Hancock's reasonable
satisfaction that you are the owner of the shares
theretofore represented by the certificate(s) claimed
by you to be lost, wrongfully taken or destroyed and
that you are the person who would be entitled to
present each such certificate for exchange pursuant
to the terms of the Agreement and Plan of
Reorganization.
4. Dividends Withheld
In accordance with Section 3.2(e) of the Agreement and Plan of Reorganization,
all dividends and similar distributions of Hancock payable to stockholders
after ______________, 1994, may be withheld by Hancock until you have properly
surrendered your First State Bank share certificate(s) for conversion into
shares of Hancock.
5. Delivery of New Certificates
Upon receipt of the properly executed Letter of Transmittal and related stock
certificate(s), Hancock Bank will mail to the address indicated hereon, new
stock certificate(s) of Hancock within five (5) business days of such receipt.
6. Questions or Clarifications
Any questions regarding the completion of the Letter of Transmittal should be
directed to Ms. Dot Miller at (601) 868-4414.
33
EXHIBIT B
FORM OF AFFILIATE AGREEMENT
____________________, 1993
Hancock Holding Company
One Hancock Plaza
Gulfport, Mississippi 39502
Gentlemen:
I, the undersigned director, executive officer or significant
stockholder of First State Bank and Trust Company of East Baton Rouge Parish,
Baker, Louisiana ("Baker"), acknowledge and understand that, as an affiliate of
Baker, Rule 145 promulgated under the Securities Act of 1933, as amended (the
"Act"), restricts my ability to sell, pledge, transfer or otherwise dispose of
the shares of Hancock Holding Company ("HHC") common stock to be issued to me
in the Agreement and Plan of Reorganization ("Merger") between HHC and Baker,
unless the requirements of Rule 145(d) are satisfied or the sale, pledge,
transfer or disposition is otherwise in compliance with the Act.
Accordingly, I represent and agree that:
1. I will not sell, pledge, transfer or otherwise dispose of any
shares of HHC common stock received in the Merger during the
period beginning on the effective date of the Merger and
ending 30 days following HHC's publication (within the meaning
of Section 201.01 of the Securities and Exchange Commission's
Codification of Financial Reporting Policies) of the results
of combined operations of HHC and Baker;
2. I will not sell, pledge, transfer or otherwise dispose of said
securities unless in accordance with the provisions of
paragraphs (c), (e), (f) and (g) of Rule 144 under the Act or
otherwise in compliance with the Act;
3. I have no plan or intention to sell, pledge, transfer or
otherwise dispose of a number of said securities to be
received in the Merger that would reduce Baker stockholders'
ownership of the HHC common stock to a number of shares having
a value, as of the date of the Merger, of less than 50% of the
value of all of the formerly outstanding Baker common stock as
of the same date.
4. I understand that the certificates for shares of HHC received
pursuant to the Merger will bear a restrictive legend, to the
effect that the shares were received in a transaction to which
Rule 145 applies, as follows:
"The shares represented by this certificate have been
issued or transferred to the registered holder as a
result of a transaction to which Rule 145 under the
Securities Act of 1933, as amended (the "Act"),
applies. The shares represented by this certificate
may not be sold, transferred, pledged or assigned,
and the issuer shall not be required to give effect
to any attempted sale, transfer, pledge or
assignment, except in accordance with the
requirements of the Act and the other conditions
specified in that certain Affiliates Agreement dated
as of _________________________, 1993 between the
issuer and the shareholder, a copy of which Agreement
will be furnished, without charge, by Hancock Holding
Company to the holder of this certificate upon
written request therefor."
5. I agree to be bound by the terms of this letter until the
expiration of the time period set forth in Rule 145(d)(2) or
(3), whichever may apply.
Sincerely,
_____________________________________
Title:_______________________________
Accepted and agreed to:
HANCOCK HOLDING COMPANY
By:___________________________________
Title:________________________________
34
EXHIBIT C
JOINDER OF SHAREHOLDER
In consideration of the foregoing Agreement, the undersigned joins
therein, agrees, subject to his fiduciary duty as an officer and director of
First State Bank & Trust Company of East Baton Rouge Parish, to use his best
efforts to cause the transactions contemplated thereby to be accomplished, and
agrees not to sell or otherwise dispose of any of his shares of common stock of
First State Bank & Trust Company of East Baton Rouge Parish, or enter into any
agreements or understandings with respect thereto, or grant any proxy or other
right to vote such shares (other than to persons designated to vote in favor of
the Agreement) unless this Agreement is terminated.
Gulfport, Mississippi
Dated as of ______________, 1994 /s/_____________________________
Guy C. Billups, Jr.
35
EXHIBIT D
CASHIER'S CERTIFICATE
I certify that I am the Cashier of Hancock Bank of Louisiana ("Hancock
Bank") located in Baton Rouge, Louisiana, and that I have been appointed and
that I am presently serving in that capacity in accordance with the Bylaws of
Hancock Bank.
I further certify that the Agreement and Plan of Reorganization dated
as of November 30, 1993 (the "Agreement") by and among First State Bank & Trust
Company of East Baton Rouge Parish, Baker, Louisiana; Hancock Holding Company,
Gulfport, Mississippi; and Hancock Bank, a wholly owned subsidiary of Hancock
Holding Company, does not amend the Articles of Hancock Bank as the surviving
bank, and the shares of Hancock Holding Company common stock to be issued under
the Agreement do not exceed fifteen percent (15%) of the shares of Hancock
Holding Company or Hancock Bank outstanding immediately prior to effectiveness
of the Merger, and thus pursuant to Louisiana Revised Statutes 6:352(6), the
approval of the Agreement by Hancock Holding Company's stockholders or Hancock
Bank's stockholders is not required.
IN WITNESS WHEREOF, I have hereupon set the seal of this Bank, this
the 19th day of January, 1994.
HANCOCK BANK OF LOUISIANA
By: /s/ JAMES D. LABAUVE
___________________________
James D. LaBauve, Cashier
36
SCHEDULE A
FIRST STATE BANK & TRUST COMPANY
OF EAST BATON ROUGE PARISH
LEASED PROPERTIES
See Attached
37
SCHEDULE B
FIRST STATE BANK & TRUST COMPANY
OF EAST BATON ROUGE PARISH
LIST OF CLAIMS
None
38
SCHEDULE C
FIRST STATE BANK & TRUST COMPANY
OF EAST BATON ROUGE PARISH
LIST OF CONTRACTS
None