STOCK PURCHASE AGREEMENT by and between SIMMONS FIRST NATIONAL CORPORATION and ROGERS BANCSHARES, INC. Dated as of September 10, 2013 TABLE OF CONTENTS

environment, of, or exposure to, any Materials of Environmental Concern, or (ii) circumstances forming the basis of any violation, or alleged violation, of any Environmental Law.

 

a material and adverse effect on (1) the business, regulatory status, any Regulatory Agreement, assets, liabilities (including deposit liabilities), profits, prospects, condition (financial or otherwise) or results of operations of the Bank and its Subsidiaries, taken as a whole, or the Business, taken as a whole, or (2) the ability of the Company or the Bank to timely consummate the transactions contemplated by this Agreement and fulfill its respective obligations hereunder; or (b) any other act or omission that could reasonably be expected to materially impair the ability to operate the Business in the Ordinary Course, including after the Closing; provided, however, that none of the following shall be taken into account in determining whether there has been a “Material Adverse Effect” under (a)(1) or (b):  (i) generally applicable changes after the date hereof in GAAP or applicable regulatory accounting requirements, (ii) changes after the date hereof in laws, rules or regulations of general applicability to companies or banks in the U.S. banking industry, (iii) changes after the date hereof in global, national or regional political conditions or general economic or market conditions (including changes in prevailing interest rates, credit availability and liquidity, currency exchange rates, and price levels or trading volumes in the United States or foreign securities markets) affecting the U.S. banking industry generally and not specifically relating to the Bank or its Subsidiaries, (iv) any outbreak or escalation of hostilities, or declared or undeclared acts of war or terrorism, (v) any changes (in composition, value or otherwise) in the Bank’s investment portfolio that have been made upon consultation with the Purchaser pursuant to Section 5.10 hereof, (vi) with respect to the Bank, any pre-Closing restrictions or conditions imposed on the Bank as of the date of this Agreement pursuant to the Regulatory Agreements to which the Bank is a party as of the date of this Agreement and that have been provided to the Purchaser in writing prior to the date hereof; except, with respect to clauses (i), (ii), (iii) and (iv), to the extent that the effects of such change are disproportionately adverse to the business, regulatory status, any Regulatory Agreement, assets, liabilities (including deposit liabilities), profits, prospects, condition (financial or otherwise) or results of operations of the Bank and its Subsidiaries, taken as a whole, or the Business, taken as a whole, as compared to other banks organized in the United States or any of its States, and (vii) any loss of employees of the Bank or any of its Subsidiaries, or any change to the business, assets, liabilities (including deposit liabilities), profits, prospects, condition (financial or otherwise) or results of operations of the Bank or any of its Subsidiaries directly or indirectly resulting from such loss of employees.

 

“or” shall not be exclusive; (g) references to “written” or “in writing” include in electronic form; (h) provisions shall apply, when appropriate, to successive events and transactions; (i) the Company and the Purchaser have each participated in the negotiation and drafting of this Agreement and if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or burdening any party by virtue of the authorship of any of the provisions in this Agreement; (j) a reference to any Person includes such Person’s successors and permitted assigns; (k) any reference to “days” shall mean calendar days unless Business Days are expressly specified; and (l) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and if the last day of such period is not a Business Day, the period shall end at the close of business on the next succeeding Business Day.

 

($53,600,000) (the “Purchase Price”), which shall, subject to the terms and conditions hereof, be payable, as set forth in Section 2.03 below, at the Closing (subject to Section 5.26 (Payment of Broker’s Fees)).  Concurrently with the Closing, the Bank or, if designated by the Purchaser, a Subsidiary of the Bank shall assume the Assumed Contract Liabilities.

 

Business in the manner in which the Business is now being conducted.  The Bank is duly qualified to do business and is in good standing in each jurisdiction in which its ownership of properties or conduct of business requires such qualification except where the failure to be so qualified has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.  The Bank is a national banking association which is duly licensed by the OCC to engage in commercial banking.  The FDIC has not been appointed receiver of the Bank.  Complete and correct copies of the Charter Documents of the Bank, as currently in effect, have prior to the date hereof been delivered to the Purchaser.

 

Charter Documents of the Company, the Bank or any other Subsidiary of the Company or the Bank, or (B) any material note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument or obligation to which the Company, the Bank or any other Subsidiary of the Company or the Bank is a party or by which it may be bound, or to which the Company, the Bank or any other Subsidiary of the Company or the Bank or any of the properties or assets of the Company, the Bank or any other Subsidiary of the Company or the Bank may be subject, or (ii) assuming the Purchaser Required Approvals are duly obtained, violate in any respect any Legal Requirement or any Order applicable to the Company, the Bank or any other Subsidiary of the Company or the Bank or any of their respective properties or assets.

 

of its Subsidiaries is under investigation with respect to or has been threatened to be charged with or given notice of any material violation of, any Legal Requirement.

 

“controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.

 

and the Benefit Arrangement is not currently, and is not reasonably expected to be, in “at risk status” within the meaning of Section 430(i) of the Code or Section 303(i) of ERISA; (ii) the fair market value of the assets of such Benefit Arrangements equals or exceeds the actuarial present value of all accrued benefits under such Benefit Arrangements (whether or not vested) on a termination basis; (iii) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, and the consummation of the transactions contemplated by this Agreement will not result in the occurrence of any such reportable event; (iv) all premiums to the PBGC have been timely paid in full; (v) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by the Company, the Bank or any of the Bank’s Subsidiaries; (vi) the PBGC has not instituted proceedings to terminate any such Benefit Arrangement and, to the Company’s Knowledge, no condition exists that presents a risk that such proceedings will be instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such Benefit Arrangement and (vii) no written or oral communication has been received from the PBGC concerning the funded status of any such plan or any transfer of assets and liabilities from any such Benefit Arrangement.  In addition, no administrative investigation, audit or other administrative Proceeding by the Department of Labor, the PBGC, the Internal Revenue Service or other Governmental Authority is pending, threatened or in progress with respect to any Benefit Arrangement.

 

Ordinary Course and (B) in the case of Leased Properties consisting of Real Estate, Permitted Liens, and is in possession of the properties purported to be leased thereunder, and each such lease is valid without default thereunder by the lessee or, to the Knowledge of the Company, the lessor, and (c) owns or leases all properties and assets as are used by the Bank or its Subsidiaries in the Business or otherwise necessary to their respective operations as now conducted.  The Real Estate is in material compliance with all applicable zoning laws and building codes, and the buildings and improvements located on the Real Estate are in good operating condition and in a state of good working order, ordinary wear and tear excepted.  There are no pending or, to the Knowledge of the Company, threatened condemnation proceedings against any of the Real Estate.  The Bank and its Subsidiaries are in compliance with all applicable health and safety related requirements for the Real Estate, including those under the Americans with Disabilities Act of 1990 and the Occupational Safety and Health Act of 1970.

 

owned by or leased by the Bank or its Subsidiaries against theft, damage, destruction, acts of vandalism and all other risks customarily insured against, with such deductibles as are customary for companies in the same or similar business.  The Company has furnished to the Purchaser prior to the date hereof true and complete copies of all insurance policies and fidelity bonds relating to the assets, business, operations, employees, officers or directors of the Bank and its Subsidiaries, whether or not the Bank or its Subsidiaries are party to such insurance policies or fidelity bonds.  There is no claim by the Bank or its Subsidiaries pending under any of such policies or bonds as to which coverage has been questioned, denied or disputed by the underwriters of such policies or bonds or in respect of which such underwriters have reserved their rights.  All premiums payable under all such policies and bonds have been timely paid and the Company, the Bank and its Subsidiaries have otherwise in all material respects complied fully with the terms and conditions of all such policies and bonds.  Such policies of insurance and bonds (or other policies and bonds providing substantially similar insurance coverage) have been in effect since at least January 1, 2006, and remain in full force and effect.  The Company has no Knowledge of any threatened termination of, premium increase with respect to, or material alteration of coverage under, any of such policies or bonds.  The Bank and its Subsidiaries shall after the Closing continue to have coverage under such policies and bonds with respect to events occurring prior to the Closing, and such coverage will not be affected by any claims by the Company or any of its Subsidiaries other than the Bank and its Subsidiaries.

 

Company’s Knowledge, no valid basis exists for the assertion of any such charge, claim, allegation or litigation.  All licenses and other agreements to which the Bank or its Subsidiaries is a party relating to Proprietary Rights are in full force and effect and constitute valid, binding and enforceable obligations of the Bank and, to the Company’s Knowledge, each other party thereto, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles, as the case may be, and there have not been and there currently are not any defaults (or any event which, with notice or lapse of time or both, would constitute a default) by the Bank or, to the Company’s Knowledge, any other party thereto under any license or other agreement affecting Proprietary Rights used in the conduct of the Business as currently conducted, except for defaults, if any, which would not have any material impact on the Bank or its Subsidiaries.  The validity, continuation and effectiveness of all licenses and other agreements relating to the Proprietary Rights used in the conduct of Business as currently conducted and the current terms thereof will not be affected by the transactions contemplated by this Agreement.

 

protection laws and regulations applicable to any of the activities of the Bank and its Subsidiaries.

 

lending standards of the Bank.  All such Loans (and any related guarantees) and payments due thereunder are, and on the Closing Date will be, free and clear of any Encumbrance, and each of the Bank and its Subsidiaries has complied in all material respects, and on the Closing Date will have complied in all material respects, with all applicable loan policies and procedures of the Bank and applicable laws and regulations relating to such Loans, including any applicable laws and regulations with respect to documentation in connection with the origination, processing, underwriting (including credit approval), purchase and servicing of mortgage Loans, real estate settlement procedures, consumer protection, truth in lending, fair housing, transfers of servicing, collection practices, equal credit opportunity and adjustable rate mortgages, and the terms and provisions of any mortgage or other collateral documents and other loan documents with respect to such Loans.

 

commissions or other similar payments (or any expenses in connection therewith) in connection with the Contemplated Transactions, and any such fees, commissions or other payments due in connection with the transactions contemplated hereby are solely Liabilities of the Company (not including the Bank or its Subsidiaries).

 

material default under, or contravene, any material indenture, contract, agreement or instrument to which the Purchaser is a party or by which the Purchaser is bound.

 

customers, suppliers and employees, and retain the services of its key officers and employees; (iii) take no action that is intended to or would reasonably be expected to adversely affect or materially delay the ability of the Company, the Bank or the Purchaser to obtain any necessary approvals of any Governmental Authority required for the Contemplated Transactions or to perform its covenants and agreements under this Agreement or to consummate the Contemplated Transactions; and (iv) maintain its Books and Records in the usual, regular and ordinary manner.

 

Subsidiaries (and in any event not to exceed $500,000 individually or $3,000,000 in the aggregate);

 

Purchaser or its Affiliates, or (2) interfere with or delay any of the Contemplated Transactions; or (B) any other action, suit, claim or proceeding that is settled in a manner consistent with past practice in an amount or for consideration not in excess of $100,000 individually or $350,000 in the aggregate and that would not (1) impose any restriction on or adversely affect the Bank, its Subsidiaries, the Business or, after the Closing, the Purchaser or any of its Affiliates or (2) create precedent for claims that are reasonably likely to be adverse to the Bank, its Subsidiaries, the Business or, after the Closing, the Purchaser or its Affiliates;

 

otherwise dispose of, or extend or exercise any option to sell, assign, lease, transfer, license, or otherwise dispose of, any Proprietary Rights, or (B) fail to exercise a right of renewal or extension under any material agreement under which the Bank or its Subsidiaries is licensed or otherwise permitted by a third party to use any Proprietary Rights (other than “shrink wrap” or “click through” licenses), unless the Bank and/or its Subsidiaries, as applicable, obtains a substantially similar license or right to use such Proprietary Rights on terms as favorable as the terms under the existing agreement;

 

loan files, plans affecting employees and any other business activities or prospects; and (iii) all other information concerning the Business, its properties or personnel as the Purchaser may reasonably request, provided, that such access shall not unduly interfere with normal operations of the Business as currently conducted, or violate any Legal Requirement; and provided, further, that the Company reserves the right to exclude any records or other documentation which, upon the advice of legal counsel, would jeopardize the attorney-client privilege of the Company (after giving due consideration to the existence of any common interest, joint defense or similar agreement between the parties).  The Company shall instruct the employees, counsel and financial advisors of the Company and the Bank to cooperate with the Purchaser and the Transition Team in connection with the foregoing.  Without in any way limiting anything else contained in this Agreement, the Company and the Bank shall make their respective directors, officers, employees and agents and authorized representatives (including counsel and independent public accountants) available to confer with the Purchaser and its representatives; provided, that such access shall not unduly interfere with normal operations of the Business as currently conducted or violate any Legal Requirement.  No access or investigation by the Purchaser or other information received by the Purchaser shall operate as a waiver or otherwise modify or affect any representation, warranty, covenant or agreement given or made by the Company in this Agreement, nor shall any such information be deemed to change, supplement or amend the Disclosure Schedule or any condition set forth in Section 6.01 or Section 6.03 or otherwise affect the remedies available to the Purchaser hereunder.

 

Subsidiaries or the Business as confidential in accordance herewith and notwithstanding clause (b), (c) or (d) of the proviso to the first sentence of this Section 5.02.

 

related to the organizational terms of, or investors in, the Purchaser, or any of its Affiliates, or any other confidential information regarding the Purchaser, its Affiliates, or its or their investors, directors, officers, employees, managers, principals or partners (including any such information contained in documentation and filings made in connection with obtaining the Purchaser Required Approvals).  In addition, nothing herein shall require the Purchaser or any of its Affiliates to take any action that could reasonably be expected to result in the imposition of a Burdensome Condition.

 

Indemnified Parties in any manner that would adversely affect the rights thereunder of any of the Indemnified Parties relating to acts or omissions prior to the Closing.

 

change, supplement or amend the Disclosure Schedule or any condition set forth in Section 6.01 or Section 6.03, or otherwise affect the remedies available to the Purchaser hereunder.

 

Company or the bankruptcy estate by reason of any theory of law or equity, and none of the Purchaser nor any Affiliate of the Purchaser nor any designee of the Purchaser shall assume or in any way be responsible for any Liability of the Company and/or the bankruptcy estate, except as otherwise expressly provided in this Agreement;

 

obligations between the Company or any of its Subsidiaries (other than the Bank) on the one hand and the Bank or any of its Subsidiaries on the other hand, under any Tax allocation or Tax sharing agreement (including the Tax Sharing Agreement) in effect prior to the Closing Date (other than this Agreement) shall cease and terminate as of the Closing Date as to all past, present and future taxable periods.  Prior to the Closing, the Company and the Bank shall terminate the Tax Sharing Agreement; provided, that such termination shall be without any liability whatsoever to the Bank or any of its Subsidiaries or the Purchaser.

 

Course of Business occurring on the Closing Date after the Closing on the Purchaser’s federal and state income Tax Returns to the extent permitted by Treasury Regulations Section 1.1502-76(b)(1)(ii)(B).

 

documentary, filing and other similar non-income Taxes and administrative fees (including notary fees) (“Transfer Taxes”) arising in connection with the consummation of the Contemplated Transactions, whether levied on the Company, the Purchaser or its Affiliates.  The Purchaser shall timely prepare (or cause to be prepared) any Tax Returns with respect to Transfer Taxes arising in connection with the consummation of the Contemplated Transactions (the “Transfer Tax Returns”).  The Purchaser shall provide (or cause to be provided) to the Company a copy of any Transfer Tax Return at least twenty (20) days prior to the due date for filing such return, and the Company shall have ten (10) days in which to review and comment on such return prior to the filing thereof.  The Purchaser shall take any such Company comments into consideration in good faith; provided, however, that the Purchaser shall have final determination as to the contents of any Transfer Tax Return unless the Company believes and informs the Purchaser that, upon advice of its advisors, a position taken by the Purchaser is not permitted under applicable law; and provided, further, that if the Company so believes any position reflected on a Transfer Tax Return is not permitted under applicable law, the parties shall engage an independent third party accounting firm to determine whether such position is permitted under applicable law and the determination of such accounting firm shall control the treatment of the disputed position(s) on such Transfer Tax Return.  The expense of such accounting firm shall be borne 50% by the Company and 50% by the Purchaser.  The Company shall timely file all Transfer Tax Returns and the parties shall pay the amount shown as due on any such return on the due date of such return in the proportions set forth above.  Upon the request of the other party, each of the Company and the Purchaser agrees to pay the other 50% of any additional Transfer Taxes, along with related penalties and interest, if any, if and to the extent any such party is then liable for such Transfer Taxes pursuant to an audit or other proceeding by a taxing authority in respect of any Transfer Taxes that the other party has not previously paid over to the applicable party or taxing authority.  The Company and the Purchaser shall cooperate to minimize Transfer Taxes.  If a certificate or document of exemption is required to reduce or eliminate the Transfer Taxes, the Purchaser will promptly furnish such certificate or document to the Company or the Purchaser will cooperate with the Company to allow the Company to obtain such reduction or exemption from Transfer Taxes.

 

Contract relating to the Business, the Company will promptly give notice of that fact to the Purchaser and, if the Purchaser so requests, the Company will promptly cause such asset to be transferred to the Bank free and clear of all Encumbrances, or the rights and obligations (but not any obligations relating to a pre-transfer breach or default) under such Contract to be assigned to the Bank free and clear of all Encumbrances, as the case may be, for no additional consideration beyond that currently provided for herein.

 

agreements of the Company, the Bank or any other Subsidiary with the Broker, and the Company will cause the Broker to deliver to the Bank and the Purchaser a pay-off letter in respect thereof in form and substance reasonably satisfactory to the Purchaser.

 

Purchaser, the Bank and their respective Affiliates (and their successors and its and their respective officers, directors, employees, managers, partners, shareholders, members, and principals), other than Liabilities under this Agreement, and, in the case of the Bank or, if designated by the Purchaser, a Subsidiary of the Bank, the Assumed Contract Liabilities;

 

 

	SIMMONS FIRST NATIONAL CORPORATION
	By:	/s/ George A. Makris
		George A. Makris, CEO-Elect