(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
RISK
FACTORS
In addition
to general investment risks and the other information contained in or incorporated by reference into this proxy statement/prospectus,
including the matters addressed in the section entitled “Cautionary Statement Regarding Forward-Looking Statements,”
and the matters discussed under the captions “Risk Factors” and “Management’s Discussion and Analysis
of Financial Condition and Results of Operations” sections of Simmons’ Annual Report on Form 10-K for the year ended
December 31, 2020 and any updates to those risk factors set forth in Simmons’ Quarterly Reports on Form 10-Q, Current Reports
on Form 8-K and other filings, which have been filed with the SEC, Landmark shareholders and Triumph shareholders should carefully
consider the following factors in deciding whether to vote for the proposals presented in this proxy statement/prospectus. See
also the section entitled “Where You Can Find More Information.”
Risks Relating to the
Mergers
Because the market price
of Simmons common stock will fluctuate, the value of the Landmark stock consideration to be received by Landmark shareholders
and the value of the Triumph stock consideration to be received by Triumph shareholders is uncertain.
Based on the assumptions
set forth herein, upon completion of the Landmark merger, each share of outstanding Landmark common stock (except for shares of Landmark
common stock held directly or indirectly by Landmark or Simmons and any dissenting shares) will be converted into the right to receive
the Landmark stock consideration, with cash paid in lieu of any remaining fractional shares, and the Landmark cash consideration. Based
on the assumptions set forth herein, upon completion of the Triumph merger, each share of outstanding Triumph common stock (except for
shares of Triumph common stock held directly or indirectly by Triumph or Simmons and any dissenting shares) will be converted into the
right to receive the Triumph stock consideration, with cash paid in lieu of any remaining fractional shares, and the Triumph cash consideration.
Any change in the market price of Simmons common stock prior to the completion of the mergers will affect the market value of the Landmark
stock consideration and the Triumph stock consideration that Landmark shareholders and Triumph shareholders, respectively, will receive
upon completion of the applicable merger. At the time of the Landmark special meeting and the Triumph special meeting, you will not know
or be able to calculate the value of the Simmons common stock that you will receive upon completion of the applicable merger. Stock price
changes may result from a variety of factors, including general market and economic conditions, changes in the respective businesses,
operations and prospects of Simmons, Landmark or Triumph, and regulatory considerations, among other things. Many of these factors
are beyond the control of Simmons, Landmark and Triumph. You should obtain current market quotations for shares of Simmons common stock
before voting your shares at the applicable special meeting.
Other than
as described in this proxy statement/prospectus, there will be no adjustment to the Landmark merger consideration based upon changes
in the market price of Simmons common stock or Landmark common stock prior to the time the Landmark merger is completed, and the
Landmark merger agreement cannot be terminated due to a change in the price of Simmons common stock. The Triumph stock consideration
will be adjusted if the Triumph/Simmons average closing price is greater than $37.28 and the difference between the percentage
change in the Nasdaq Bank Index and the percentage change in the Triumph/Simmons average closing price exceeds 20% over a designated
measurement period. See the section entitled “The Merger Agreements—The Merger Consideration.” In addition,
the Triumph merger agreement can be terminated by Triumph if, at any time during the five-day period commencing on the Triumph
determination date, the Triumph/Simmons average closing price is less than $24.85 and the difference between the percentage change
in the Nasdaq Bank Index and the percentage change in the Triumph/Simmons average closing price exceeds 20% over a designated
measurement period, unless Simmons agrees to increase the Triumph cash consideration by a specified amount. See the section entitled
“The Merger Agreements—Termination of the Merger Agreements.”
Regulatory approvals
may not be received, may take longer than expected or may impose conditions that are not presently anticipated or cannot be met.
Before either
merger may be completed, various approvals must be obtained from bank regulatory authorities. In determining whether to grant
these approvals, the applicable regulatory authorities consider a variety of factors, including the competitive impact of the
applicable proposal in the relevant geographic markets; financial, managerial and other supervisory considerations, including
the future prospects, of each party; potential effects of the applicable merger on the convenience and needs of the communities
to be served and the record of the insured depository institutions under the Community Reinvestment Act of 1977 and the regulations
promulgated thereunder, or the Community Reinvestment Act, including the insured depository institutions’ respective overall
compliance records and recent fair lending examinations; effectiveness of the parties in combatting money laundering activities;
the extent to which the applicable proposal would result in greater or more concentrated risks to the stability of the United
States banking or financial system; and whether Simmons controls or would after consummation of the applicable merger control
deposits in excess of certain limits. These regulatory authorities may impose conditions on the granting of such approvals. Such
conditions or changes and the process of obtaining regulatory approvals could have the effect of delaying completion of either
merger or of imposing additional costs or limitations on the combined company following either merger. The regulatory approvals
may not be received at all, may not be received in a timely fashion, or may contain conditions on the completion of either merger
that are not anticipated or cannot be met. Furthermore, such conditions or changes may constitute a burdensome condition that
may allow Simmons to terminate either merger agreement and if so, Simmons may exercise its right to terminate either merger agreement.
If the consummation of either merger is delayed, including by a delay in receipt of necessary regulatory approvals, the business,
financial condition and results of operations of each party to the applicable merger may also be materially and adversely affected.
See the section entitled “The Mergers—Regulatory Approvals Required for the Mergers and the Triumph Bank Merger.”
Failure of either merger
to be completed, the termination of either merger agreement or a significant delay in the consummation of either merger could
negatively impact Simmons and Landmark or Triumph, as applicable.
Each merger agreement
is subject to a number of conditions which must be fulfilled in order to complete the applicable merger. Please see the section
entitled “The Merger Agreements—Conditions to Consummation of the Mergers.” These conditions to the consummation
of the mergers may not be fulfilled and, accordingly, either merger may not be completed. In addition, if either the Landmark
merger or Triumph merger is not completed by March 1, 2022, either Simmons or Landmark, in the case of the Landmark merger, and
either Simmons or Triumph, in the case of the Triumph merger, may choose to terminate the applicable merger agreement at any time
after such date if the failure to consummate the transactions contemplated by such merger agreement is not caused by any breach
of such merger agreement by the party electing to terminate such merger agreement, before or after shareholder approval of the
applicable merger.
If either merger
is not consummated, the ongoing business, financial condition and results of operations of each party may be materially adversely
affected and the market price of Simmons common stock may decline significantly, particularly to the extent that the current market
price reflects a market assumption that the mergers will be consummated. If the consummation of either merger is delayed, including
by the receipt of a competing acquisition proposal, the business, financial condition and results of operations of each party
may be materially adversely affected.
In addition,
each party to the mergers has incurred and will incur substantial expenses in connection with the negotiation and completion of
the transactions contemplated by the applicable merger agreement, as well as the costs and expenses of filing, printing and mailing
this proxy statement/prospectus and all filing and other fees paid to the SEC and other regulatory agencies in connection with
the applicable merger. If either merger is not completed, the parties would have to recognize these expenses without realizing
the expected benefits of
the applicable merger. Any of the foregoing, or other risks arising in connection with the failure of
or delay in consummating either merger, including the diversion of management attention from pursuing other opportunities and
the constraints in the applicable merger agreement on the ability to make significant changes to each party’s ongoing business
during the pendency of the applicable merger, could have a material adverse effect on each party’s business, financial condition
and results of operations.
Additionally,
Simmons’, Landmark’s or Triumph’s business may have been adversely impacted by the failure to pursue other beneficial
opportunities due to the focus of management on the applicable merger, without realizing any of the anticipated benefits of completing
the applicable merger, and the market price of Simmons common stock might decline to the extent that the current market price
reflects a market assumption that the mergers will be completed. If either merger agreement is terminated and a party’s
board of directors seeks another merger or business combination, such party’s shareholders cannot be certain that such party
will be able to find a party willing to engage in a transaction on more attractive terms than the applicable merger.
Some of the conditions
to each merger may be waived by Simmons or Landmark, in the case of the Landmark merger, or Simmons or Triumph, in the case of
the Triumph merger, without resoliciting shareholder approval of the applicable merger agreement.
Some of the conditions
to the Landmark merger and the Triumph merger set forth in the applicable merger agreement may be waived by Simmons or Landmark,
with respect to the Landmark merger agreement, or Simmons or Triumph, with respect to the Triumph merger agreement, subject to
the agreement of the other party in specific cases. See the section entitled “The Merger Agreements—Conditions to
Consummation of the Mergers.” If any such conditions are waived, Simmons and Landmark or Triumph, as applicable, will evaluate
whether an amendment of this proxy statement/prospectus and solicitation of proxies is warranted. In the event that the Landmark
board of directors or Triumph board of directors, as applicable, determines that solicitation of Landmark shareholders or Triumph
shareholders, respectively, is not warranted, Simmons and Landmark, in the case of the Landmark merger, and Simmons and Triumph,
in the case of the Triumph merger, will have the discretion to complete the applicable merger without seeking further shareholder
approval.
Simmons, Landmark and
Triumph will be subject to business uncertainties and contractual restrictions while the mergers are pending.
Uncertainty about
the effect of the mergers on employees, customers (including depositors and borrowers), suppliers and vendors may have an adverse
effect on the business, financial condition and results of operations of the parties to each merger. These uncertainties may impair
Simmons’, Landmark’s or Triumph’s ability to attract, retain and motivate key personnel and customers (including
depositors and borrowers) pending the consummation of the mergers, as such personnel and customers may experience uncertainty
about their future roles and relationships following the consummation of the mergers. Additionally, these uncertainties could
cause customers (including depositors and borrowers), suppliers, vendors and others who deal with Simmons, Landmark and/or Triumph
to seek to change existing business relationships with Simmons, Landmark and/or Triumph or fail to extend an existing relationship
with Simmons, Landmark and/or Triumph. In addition, competitors may target each party’s existing customers by highlighting
potential uncertainties and integration difficulties that may result from the mergers.
The pursuit of
the mergers and the preparation for the integration may place a burden on each party’s management and internal resources.
Any significant diversion of management attention away from ongoing business concerns and any difficulties encountered in the
transition and integration process could have a material adverse effect on each party’s business, financial condition and
results of operations.
In addition,
each merger agreement restricts each party thereto from taking certain actions without the other party’s consent while the
applicable merger is pending. These restrictions could have a material adverse effect
on each party’s business, financial
condition and results of operations. See the section entitled “The Merger Agreements—Covenants and Agreements”
for a description of the restrictive covenants applicable to Simmons and Landmark, in the case of the Landmark merger agreement,
and to Simmons and Triumph, in the case of the Triumph merger agreement.
Landmark’s and
Triumph’s respective directors and executive officers have interests in the applicable merger that may be different from
the interests of Landmark shareholders and Triumph shareholders, respectively.
Landmark’s
and Triumph’s respective directors and executive officers have interests in the applicable merger that may be different
from, or in addition to, the interests of Landmark shareholders and Triumph shareholders, respectively. The Landmark board of
directors and Triumph board of directors were aware of these applicable interests and considered them, among other matters, in
approving the Landmark merger agreement and Triumph merger agreement, respectively, and the transactions contemplated by the applicable
merger agreement and recommending to the Landmark shareholders and Triumph shareholders, respectively, that they vote to approve
the applicable merger proposal. These interests are described in more detail in the sections entitled “The Landmark Merger—Interests
of Landmark’s Directors and Executive Officers in the Landmark Merger” and “The Triumph Merger—Interests
of Triumph’s Directors and Executive Officers in the Triumph Merger.”
The merger agreements
contain provisions that may discourage other companies from pursuing, announcing or submitting a business combination proposal
to Landmark, in the case of the Landmark merger agreement, and Triumph, in the case of the Triumph merger agreement, that might
result in greater value to Landmark shareholders or Triumph shareholders, respectively.
The merger agreements
contain provisions that may discourage a third party from pursuing, announcing or submitting a business combination proposal to
Landmark, in the case of the Landmark merger agreement, and Triumph, in the case of the Triumph merger agreement, that might result
in greater value to Landmark shareholders or Triumph shareholders, respectively, than the applicable merger. These provisions
include a general prohibition on Landmark and Triumph, respectively, from soliciting or entering into discussions with any third
party regarding any acquisition proposal or offers for competing transactions, as described in the section entitled “The
Merger Agreements—Agreement Not to Solicit Other Offers.” Furthermore, if the Landmark merger agreement or the Triumph
merger agreement is terminated, under certain circumstances, Landmark may be required to pay Simmons a termination fee equal to
$7,000,000 upon termination of the Landmark merger agreement, and Triumph may be required to pay Simmons a termination fee equal
to $6,500,000 upon termination of the Triumph merger agreement, as described in the section entitled “The Merger Agreements—Termination
Fees.” Each of Landmark and Triumph also has an unqualified obligation to submit its respective merger-related proposals
to a vote by its respective shareholders, including if Landmark or Triumph, as applicable, receives an unsolicited proposal that
the Landmark board of directors or Triumph board of directors, respectively, has determined in good faith is superior to the applicable
merger. See the section entitled “The Merger Agreements—Special Meetings and Recommendations of the Board of Directors
of Landmark and Triumph.”
In connection with the
Landmark merger agreement, each of the directors and certain executive officers of Landmark, in their capacities as individuals, have
separately entered into Landmark voting agreements pursuant to which they agreed to vote their beneficially owned shares of Landmark
common stock in favor of the Landmark merger proposal and certain related matters and against alternative transactions. In connection
with the Triumph merger agreement, each of the directors and certain executive officers of Triumph, in their capacities as individuals,
have separately entered into Triumph voting agreements pursuant to which they agreed to vote their beneficially owned shares of Triumph
common stock in favor of the Triumph merger proposal and certain related matters and against alternative transactions. As of the Landmark
record date, shares constituting approximately 21.54% of the Landmark common stock entitled to vote at the Landmark special meeting
are subject to Landmark
voting agreements; and as of the Triumph
record date, shares constituting approximately 44.49 % of the Triumph common stock entitled to vote at the Triumph special meeting
are subject to Triumph voting agreements. For further information, see the section entitled “The Merger Agreements—Voting
Agreements.”
Each of the Landmark
merger and the Triumph merger is expected to, but may not, qualify as a reorganization under Section 368(a) of the Code.
The parties expect
that and intend for each of the Landmark merger and the Triumph merger to be treated as a “reorganization” within
the meaning of Section 368(a) of the Code. The respective obligations of Simmons and Landmark to complete the Landmark merger
are contingent upon Simmons and Landmark receiving a legal opinion from Covington that the Landmark merger will qualify as a “reorganization”
within the meaning of Section 368(a) of the Code. Similarly, the respective obligations of Simmons and Triumph to complete
the Triumph merger are conditioned upon Simmons and Triumph receiving a legal opinion from Covington to the effect that the Triumph
merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. These tax opinions represent
the legal judgment of counsel rendering the opinions and are not binding on the United States Internal Revenue Service, or the
IRS, or the courts. The expectations that each of the mergers will be treated as a “reorganization” within the meaning
of Section 368(a) of the Code reflect assumptions and takes into account the relevant information available to Simmons and Landmark
or Triumph, as applicable, at the time. However, this information is not a fact and should not be relied upon as necessarily indicative
of future results. Furthermore, such expectation constitutes a forward-looking statement. For information on forward-looking statements,
see the section entitled “Cautionary Statement Regarding Forward-Looking Statements.”
If either the
Landmark merger or the Triumph merger does not qualify as a “reorganization” within the meaning of Section 368(a)
of the Code, then a holder of Landmark common stock or Triumph common stock, depending on whether the failed merger is the Landmark
merger or the Triumph merger, may be required to recognize gain or loss equal to the difference between (1) the sum of the fair
market value of Simmons common stock received by the Landmark shareholder or Triumph shareholder, as applicable, in the merger
and the amount of cash, if any, received by the Landmark shareholder or Triumph shareholder in the merger, and (2) the Landmark
shareholder or Triumph shareholder’s adjusted tax basis in the shares of Landmark common stock or Triumph common stock,
respectively, exchanged therefor. For further information, please refer to the section entitled “Material United States
Federal Income Tax Consequences of the Mergers.” You should consult your tax advisor to determine the particular tax consequences
to you.
The opinions of the
respective financial advisors to the Landmark board of directors and the Triumph board of directors prior to the signing of the
applicable merger agreement will not reflect changes in circumstances after the respective dates of the opinions.
The Landmark
board of directors received a written opinion from Olsen Palmer, dated June 4, 2021, which is attached as Annex E
to this proxy statement/prospectus. The Triumph board of directors received a written opinion from Southard Financial,
dated June 4, 2021, which is attached hereto as Annex F to this proxy statement/prospectus. For a description of these
opinions, see the sections entitled “The Landmark Merger—Opinion of Landmark’s Financial Advisor” and
“The Triumph Merger—Opinion of Triumph’s Financial Advisor.” Such opinions have not been updated as of
the date of this proxy statement/prospectus and will not be updated at, or prior to, the time of the completion of the mergers.
Changes in the operations and prospects of Simmons, Landmark or Triumph, general market and economic conditions and other factors
that may be beyond the control of Simmons, Landmark and Triumph may alter the value of Simmons, Landmark or Triumph or the prices
of shares of Simmons common stock, Landmark common stock or Triumph common stock by the time the mergers are completed. The opinions
do not speak as of the time the mergers are completed or as of any other date than the date of the opinions. Further, the Olsen
Palmer and Southard Financial opinions regarding the Landmark merger and Triumph merger, respectively, do not take the Triumph
merger or Landmark merger, respectively, into consideration. For a description of the other factors considered by the Landmark
board
of directors in
determining to approve the Landmark merger and the Triumph board of directors in determining to approve the Triumph merger,
see the sections entitled “The Landmark Merger—Landmark’s Reasons for the Landmark Merger and
Recommendation of the Landmark Board of Directors” and “The Triumph Merger—Triumph’s Reasons for
the Triumph Merger and Recommendation of the Triumph Board of Directors.”
Litigation against Landmark,
Triumph or Simmons, or the members of the Landmark, Triumph or Simmons board of directors, could prevent or delay the completion
of the mergers.
While Simmons,
Landmark and Triumph believe that any claims that may be asserted by purported shareholder plaintiffs related to the mergers would
be without merit, the results of any such potential legal proceedings are difficult to predict and could delay or prevent the
mergers from being competed in a timely manner. The existence of litigation related to the Landmark merger or the Triumph merger
could affect the likelihood of obtaining the required approval from Landmark shareholders or Triumph shareholders, respectively.
Moreover, any litigation could be time consuming and expensive, could divert Simmons, Landmark and Triumph management’s
attention away from their regular business, and any lawsuit adversely resolved against Landmark, Triumph, Simmons or members of
the Landmark, Triumph or Simmons board of directors, could have a material adverse effect on each party’s business, financial
condition and results of operations.
One of the conditions
to the consummation of each merger is the absence of any law or order (whether temporary, preliminary or permanent) by any court
or regulatory authority of competent jurisdiction prohibiting, restricting or making illegal consummation of the transactions
contemplated by the applicable merger agreement (including the applicable merger). Consequently, if a settlement or other resolution
is not reached in any lawsuit that is filed or any regulatory proceeding and a claimant secures injunctive or other relief or
a regulatory authority issues an order or other directive prohibiting, restricting or making illegal consummation of the transactions
contemplated by either of the merger agreements (including the applicable merger), then such injunctive or other relief may prevent
such merger from becoming effective in a timely manner or at all.
The COVID-19 pandemic
may delay and adversely affect the completion of the mergers.
The COVID-19
pandemic has created economic and financial disruptions that have adversely affected, and are likely to continue to adversely
affect, the business, financial condition, liquidity, capital and results of operations of Simmons, Landmark and Triumph. If the
effects of the COVID-19 pandemic cause continued or extended decline in the economic environment and the financial results of
Simmons, Landmark or Triumph, or the business operations of Simmons, Landmark or Triumph are disrupted as a result of the COVID-19
pandemic, efforts to complete the mergers and integrate the businesses of Landmark and Triumph with Simmons may also be delayed
and adversely affected. Additional time may be required to obtain the requisite regulatory approvals, and regulatory authorities
may impose additional requirements on Simmons, Landmark or Triumph that must be satisfied prior to completion of the mergers,
which could delay and adversely affect the completion of the mergers.
Risks Relating to the
Combined Company’s Business Following the Mergers
The shares of Simmons
common stock to be received by holders of Landmark common stock and holders of Triumph common stock as a result of the Landmark
merger and Triumph merger, respectively, will have different rights from the shares of Landmark common stock and Triumph common
stock, respectively.
The rights
of Landmark shareholders are currently governed by the Landmark charter and the Landmark bylaws. The rights of Triumph are currently
governed by the Triumph charter and the Triumph bylaws. Upon completion of the mergers, the rights of former holders of Landmark
common stock and Triumph common stock will be governed by the Simmons charter and the Simmons bylaws. Simmons is organized under
Arkansas law, while Landmark and Triumph are organized under Tennessee law. The rights associated with Landmark common
stock and
Triumph common stock are different from the rights associated with Simmons common stock. See the sections entitled “Comparison
of Shareholders’ Rights of Simmons and Landmark” and “Comparison of Shareholders’ Rights of Simmons and
Triumph” for a discussion of the different rights associated with Simmons common stock.
Sales of substantial
amounts of Simmons common stock in the open market by former holders of Landmark common stock and/or Triumph common stock could
depress Simmons’ stock price.
Shares of Simmons
common stock that are issued to holders of Landmark common stock in the Landmark merger and holders of Triumph common stock in
the Triumph merger will be freely tradable without restrictions or further registration under the Securities Act. Simmons currently
expects to issue 4,500,000 shares of Simmons common stock in connection with the Landmark merger and 4,164,839 shares of Simmons
common stock in connection with the Triumph merger. If the mergers are completed and if Landmark’s and/or Triumph’s
former shareholders sell substantial amounts of Simmons common stock in the public market following completion of the mergers,
the market price of Simmons common stock may decrease. These sales might also make it more difficult for Simmons to sell equity
or equity-related securities at a time and price that it otherwise would deem appropriate.
Combining Landmark and
Triumph with Simmons may be more difficult, costly or time consuming than expected and the anticipated benefits and cost savings
of the mergers may not be realized.
The success of
the mergers will depend on, among other things, the combined company’s ability to combine the businesses of Landmark and
Triumph with Simmons. If the combined company is not able to successfully achieve this objective, the anticipated benefits of
the mergers may not be realized fully, or at all, or may take longer to realize than expected.
Simmons, Landmark
and Triumph have operated and, until the completion of the mergers, will continue to operate, independently. The success of the
mergers, including anticipated benefits and cost savings, will depend, in part, on the successful combination of the businesses
of Landmark and Triumph with Simmons. To realize these anticipated benefits and cost savings, after the completion of the mergers,
Simmons expects to integrate Landmark’s and Triumph’s businesses into its own. It is possible that the integration
process could result in the loss of key employees, the disruption of each company’s ongoing businesses or inconsistencies
in standards, controls, procedures and policies that adversely affect the combined company’s ability to maintain relationships
with clients, customers, depositors and employees or to achieve the anticipated benefits and cost savings of the mergers. The
loss of key employees could have an adverse effect on the companies’ financial results and the value of their common stock.
If Simmons experiences difficulties with the integration process, the anticipated benefits of the mergers may not be realized
fully, or at all, or may take longer to realize than expected. As with any merger of financial institutions, there also may be
business disruptions that cause Simmons, Landmark and/or Triumph to lose current customers or cause current customers to remove
their accounts from Simmons, Landmark and/or Triumph and move their business to competing financial institutions. Integration
efforts will also divert management attention and resources. These integration matters could have an adverse effect on each of
Simmons, Landmark or Triumph during this transition period and for an undetermined period after consummation of the mergers.
The combined company
expects to incur substantial expenses related to the mergers.
The combined
company expects to incur substantial expenses in connection with consummation of the mergers and combining the business, operations,
networks, systems, technologies, policies and procedures of Landmark and Triumph with Simmons. Although Simmons, Landmark and
Triumph have assumed that a certain level of transaction and combination expenses would be incurred, there are a number of factors
beyond their control that could affect the total amount or the timing of their combination expenses. Many of the expenses that
will be incurred, by their nature, are difficult to estimate accurately at the present time. Due to these factors, the transaction
and combination expenses associated with the mergers could, particularly in the near term, exceed the savings that the combined
company expects to achieve from the elimination of duplicative expenses and the realization of economies of scale and cost savings
related to the combination of the businesses following the consummation of the mergers. As a result of these expenses, each of
Simmons, Landmark and Triumph expects to take charges against their earnings before and after the completion of the mergers. The
charges taken in connection with the mergers are expected to be significant, although the aggregate amount and timing of such
charges are uncertain at present.
Holders of Simmons,
Landmark and Triumph common stock will have a reduced ownership and voting interest after the mergers and will exercise less influence
over management.
Holders of Simmons common
stock, Landmark common stock and Triumph common stock currently have the right to vote for the election of the directors and on other
matters affecting Simmons, Landmark and Triumph, respectively. Upon the completion of the mergers, each holder of Landmark common stock
and each holder of Triumph common stock who receives shares of Simmons common stock will become a shareholder of Simmons with a percentage
ownership of Simmons common stock that is smaller than such shareholder’s percentage ownership of Landmark common stock or Triumph
common stock, respectively. Following completion of both of the mergers, it is currently expected that former holders of Landmark common
stock as a group will own approximately 3.84 % of the combined company’s common stock, former holders of Triumph common stock
as a group will own approximately 3.56 % of the combined company’s common stock, and existing holders of Simmons common stock
as a group will own approximately 92.60 % of the combined company’s common stock. As a result, Landmark shareholders and
Triumph shareholders will have less influence on the management and policies of the combined company than they now have on the management
and policies of Landmark and Triumph, respectively, and existing Simmons shareholders may have less influence than they now have on the
management and policies of Simmons.
Risks Relating to an
Investment in Simmons Common Stock
The market price of
Simmons common stock may decline as a result of the mergers.
The market price
of Simmons common stock may decline as a result of the mergers if Simmons does not achieve the perceived benefits of the mergers
or the effect of the mergers on Simmons’ financial results is not consistent with the expectations of financial or industry
analysts. In addition, upon completion of the mergers, Simmons, Landmark and Triumph shareholders will own interests in a combined
company operating an expanded business with a different mix of assets, risks and liabilities. Existing Simmons, Landmark and Triumph
shareholders may not wish to continue to invest in the combined company, or for other reasons may wish to dispose of some or all
of their shares of the combined company.
The market price
of the common stock of the combined company after the mergers may be affected by factors different from those currently affecting
the shares of Simmons, Landmark or Triumph common stock.
Upon the
completion of the mergers, Simmons shareholders, Landmark shareholders and Triumph shareholders will become shareholders of the
combined company. Simmons’ business differs from that of each of Landmark and Triumph, and, accordingly, the results of
operations of the combined company and the market price of the combined company’s shares of common stock may be affected
by factors different from those currently affecting the independent results of operations of each of Simmons, Landmark and Triumph.
For a further discussion of the businesses of Simmons, Landmark and Triumph, see the section entitled “Information about
the Companies.” For a discussion of the businesses of Simmons and of certain factors to consider in connection with such
business, please see the documents incorporated by reference into this proxy statement/prospectus and referred to in the section
entitled “Where You Can Find More Information.”
Simmons’ management
will have broad discretion as to the use of assets acquired from the mergers, and Simmons may not use these assets effectively.
Simmons’
management will have broad discretion in the application of the assets from the mergers and could utilize the assets in ways that
do not improve Simmons’ results of operations or enhance the value of its common stock. Holders of Landmark common stock
and holders of Triumph common stock will not have the opportunity, as part of their investment decision, to assess whether these
acquired assets are being used appropriately. Simmons’ failure to utilize these assets effectively could have a material
adverse effect on the combined company’s business, financial condition and results of operations and cause the price of
Simmons common stock to decline.
Simmons’
rights and the rights of Simmons shareholders to take action against Simmons’ directors and officers are limited.
The Simmons charter
eliminates Simmons’ directors’ liability to Simmons and its shareholders for money damages for breach of fiduciary
duties as a director to the fullest extent permitted by Arkansas law. Arkansas law provides that an officer has no liability in
that capacity if he or she performs his or her duties in good faith, in a manner he or she reasonably believes to be in Simmons’
best interests and with the care that an ordinarily prudent person in a like position would use under similar circumstances.
The Simmons charter,
Simmons bylaws and indemnification agreements with Simmons’ directors and executive officers also require Simmons to indemnify
Simmons’ directors and officers for liability resulting from actions taken by them in those capacities to the maximum extent
permitted by Arkansas law. As a result, Simmons shareholders and Simmons may have more limited rights against Simmons’ directors
and officers than might otherwise exist under common law. In addition, Simmons may be obligated to fund the defense costs incurred
by Simmons’ directors and officers.
THE
LANDMARK SPECIAL MEETING
This
section contains information for Landmark shareholders about the Landmark special meeting. Landmark is mailing or otherwise delivering
this proxy statement/prospectus to you, as a Landmark shareholder, on or about [ ], 2021. This proxy statement/prospectus is also
being delivered to Landmark shareholders as Simmons’ prospectus for its offering of Simmons common stock in connection with
the Landmark merger. This proxy statement/prospectus is accompanied by a notice of the Landmark special meeting and a proxy that
the Landmark board of directors is soliciting for use by Landmark shareholders at the Landmark special meeting and at any adjournments
or postponements of the Landmark special meeting. References to “you” and “your” in this section are to
Landmark shareholders.
Date, Time and Place of
the Landmark Special Meeting
The Landmark
special meeting will be held on September 7 , 2021 at 6:00 p.m. Central Time, at the Hunt & Polo Club, 650
Shady Grove Road, Memphis, Tennessee 38120 . On or about [ ], 2021, Landmark commenced mailing or otherwise delivering this
proxy statement/prospectus and the enclosed form of proxy to its shareholders entitled to vote at the Landmark special meeting.
Matters to Be Considered
At the
Landmark special meeting, you will be asked to consider and vote upon the following proposals:
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the
Landmark merger proposal; and
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the
Landmark adjournment proposal, if necessary or appropriate.
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Recommendation of the Landmark
Board of Directors
The Landmark
board of directors has approved the Landmark merger agreement and unanimously recommends that you vote “FOR”
the Landmark merger proposal and, if necessary or appropriate, “FOR” the Landmark adjournment proposal.
See the section entitled “The Landmark Merger—Landmark’s Reasons for the Landmark Merger and Recommendation
of the Landmark Board of Directors” for a more detailed discussion of the factors considered by the Landmark board of directors
in reaching its decision to approve the Landmark merger agreement, including the Landmark merger and all transactions contemplated
thereby.
Completion of
the Landmark merger is conditioned upon the approval of the Landmark merger proposal, but is not conditioned upon the approval
of the Landmark adjournment proposal. Neither the closing of the Landmark merger nor the closing of the Triumph merger is conditioned
upon closing of the other merger.
Record Date and Quorum
The Landmark
board of directors has fixed the close of business on July 29 , 2021 as the Landmark record date for determination of Landmark
shareholders entitled to notice of and to vote at the Landmark special meeting. Only Landmark shareholders at the close of business on
the Landmark record date will be entitled to notice of, and to vote at, the Landmark special meeting. As of the Landmark record date,
there were 22,215,981 shares of Landmark common stock outstanding and entitled to notice of, and to vote at, the Landmark special
meeting, held by approximately 256 Landmark shareholders of record. Each Landmark shareholder will be entitled to one vote for
each share of Landmark common stock held of record.
Landmark
shareholders that are present at the Landmark special meeting in person or by proxy and holding a majority of the shares of Landmark
common stock issued, outstanding and entitled to be voted at Landmark special meeting, will constitute a quorum at the Landmark
special meeting. All shares of Landmark common
stock present at the Landmark special meeting in person or by proxy, including
abstentions, if any, will be treated as present for purposes of determining the presence or absence of a quorum for all matters
voted on at the Landmark special meeting.
Under
the Landmark bylaws, if a quorum is not present at the Landmark special meeting, a majority in voting interest of those present
in person or by proxy and entitled to vote at the Landmark special meeting may adjourn the meeting from time to time without notice
to the Landmark shareholders until Landmark shareholders holding the amount of stock required for a quorum are present or represented.
In the absence of all of the Landmark shareholders, any officer entitled to preside at, or to act as presiding officer of, the
Landmark special meeting may adjourn the meeting from time to time without notice to the Landmark shareholders until Landmark
shareholders holding the amount of stock required for a quorum are present or represented.
Vote Required; Treatment
of Abstentions; Broker Non-Votes and Failure to Vote
Landmark
merger proposal:
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Vote
required: Approval of the Landmark merger proposal requires the affirmative vote
of holders of at least a majority of the outstanding shares of Landmark common stock
entitled to vote on the proposal.
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Effect
of abstentions and broker non-votes: If you mark “ABSTAIN” on your proxy,
fail to submit a proxy or vote in person at the Landmark special meeting, or if you fail
to instruct your bank, broker or other nominee how to vote with respect to the Landmark
merger proposal, it will have the same effect as a vote against the proposal.
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Landmark
adjournment proposal:
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Vote
required: Approval of the Landmark adjournment proposal requires the affirmative
vote of holders of at least a majority of the outstanding shares of Landmark common stock
present or represented by proxy at the Landmark special meeting and entitled to vote
on the proposal. A quorum is not required for a vote on the Landmark adjournment proposal.
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Effect
of abstentions and broker non-votes: If you mark “ABSTAIN” on your proxy,
it will have the same effect as a vote against the Landmark adjournment proposal. If
you fail to submit a proxy or vote in person at the Landmark special meeting, or if you
fail to instruct your bank, broker or other nominee how to vote with respect to the Landmark
adjournment proposal, it will have no effect on the proposal.
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Shares Held by Directors
and Executive Officers
As of the Landmark
record date, there were 22,215,981 shares of Landmark common stock outstanding and entitled to vote at the Landmark special meeting.
As of the Landmark record date, the directors and executive officers of Landmark and their affiliates beneficially owned and were entitled
to vote approximately 4,862,973 shares of Landmark common stock, representing approximately 21.89% of the shares of Landmark
common stock outstanding on that date. Landmark currently expects that the shares of Landmark common stock beneficially owned by its
directors and executive officers will be voted in favor of the Landmark merger proposal and the Landmark adjournment proposal. In connection
with the Landmark merger agreement, each of the directors and certain executive officers of Landmark, in their capacities as individuals,
have separately entered into Landmark voting agreements pursuant to which they agreed to vote their beneficially owned shares of Landmark
common stock in favor of the Landmark merger proposal and certain related matters and against alternative transactions. For further information,
see the section entitled “The Merger Agreements—Voting Agreements.”
Voting of Proxies; Incomplete
Proxies
A Landmark
shareholder may vote by proxy or in person at the Landmark special meeting. If you hold your shares of Landmark common stock in
your name as a shareholder of record, you may use one of the following methods to submit a proxy as a Landmark shareholder:
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by
mail by completing, signing, dating and returning the proxy in the enclosed envelope,
which requires no additional postage if mailed in the United States; or
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in
person at the Landmark special meeting.
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When a
properly executed proxy is returned, the shares of Landmark common stock represented by it will be voted at the Landmark special
meeting in accordance with the instructions contained on the proxy. If any proxy is returned without indication as to how to vote,
the shares of Landmark common stock represented by the proxy will be voted in favor of both the Landmark merger proposal and the
Landmark adjournment proposal.
For Landmark
shareholders whose shares are registered in the name of a bank, broker or other nominee, please consult the voting instructions
provided by your bank, broker or other nominee.
If your
shares are held in “street name” by a bank, broker or other nominee, you should check the voting form used by that
firm to determine how to vote. You may not vote shares held in “street name” by returning a proxy directly to Landmark
or by voting at the Landmark special meeting unless you provide a “legal proxy,” which you must obtain from your bank,
broker or other nominee.
Every
Landmark shareholder’s vote is important. Accordingly, you should complete, sign, date and return the enclosed proxy, whether
or not you plan to attend the Landmark special meeting. Sending in your proxy will not prevent you from voting your shares personally
at the Landmark special meeting, since you may revoke your proxy at any time before it is voted.
Shares Held in “Street
Name”
If your
shares are held in “street name” by a bank, broker or other nominee, you must provide the record holder of your shares
with instructions on how to vote your shares. Banks, brokers and other nominees who hold shares of Landmark common stock in “street
name” for a beneficial owner of those shares typically have the authority to vote in their discretion on “routine”
proposals when they have not received instructions from beneficial owners. However, banks, brokers and other nominees are not
allowed to exercise voting discretion with respect to the approval of matters determined to be “non-routine,” without
specific instructions from the beneficial owner. Landmark expects that all proposals to be voted on at the Landmark special meeting
will be “non-routine” matters. Broker non-votes are shares held by a bank, broker or other nominee with respect to
which such entity is not instructed by the beneficial owner of such shares to vote on the particular proposal and the broker does
not have discretionary voting power on such proposal. If your bank, broker or other nominee holds your shares of Landmark common
stock in “street name,” such entity will vote your shares of Landmark common stock only if you provide instructions
on how to vote by complying with the voter instruction form sent to you by your bank, broker or other nominee with this proxy
statement/prospectus.
Revocability of Proxies
and Changes to a Landmark Shareholder’s Vote
If you
hold stock in your name as a shareholder of record, you may change your vote or revoke any proxy at any time before it is voted
by (1) completing, signing, dating and returning a proxy with a later date, (2) delivering a written revocation letter to Landmark’s
head of investor relations, or (3) voting in person at the
Landmark special meeting. If you choose to send a completed proxy bearing
a later date than your original proxy, the new proxy must be received before the beginning of the Landmark special meeting.
Any Landmark
shareholder entitled to vote at the Landmark special meeting may vote regardless of whether or not a proxy has been previously
given, but simply attending the Landmark special meeting (without notifying Landmark’s head of investor relations) will
not constitute revocation of a previously given proxy.
Written
notices of revocation and other communications about revoking your proxy should be addressed to:
Landmark Community Bank
5880 Ridge Bend Road
Memphis, Tennessee 38120
Attention: Deborah R. Field
If your
shares are held in “street name” by a bank, broker or other nominee, you should follow the instructions of your bank,
broker or other nominee regarding the revocation of voting instructions.
Solicitation of Proxies
Landmark
is soliciting proxies from its shareholders in conjunction with the Landmark merger. Landmark will bear the entire cost of soliciting
proxies from Landmark shareholders. In addition to solicitation of proxies by mail, Landmark will request that banks, brokers,
nominees and other record holders send proxies and proxy materials to the beneficial owners of Landmark common stock and secure
their voting instructions. Landmark will reimburse the record holders for their reasonable expenses in taking those actions. If
necessary, Landmark may use its directors, officers or employees, who will not be specially compensated, to solicit proxies from
Landmark shareholders, either personally or by telephone, facsimile, letter or electronic means.
Attending the Landmark
Special Meeting
If you
are a Landmark shareholder as of the Landmark record date, you may vote your shares in person at the Landmark special meeting.
Even if you currently plan to attend the Landmark special meeting, it is recommended that you also submit your proxy as described
below, so your vote will be counted if you later decide not to attend the Landmark special meeting. If you submit your vote by
proxy and later decide to vote at the Landmark special meeting, the vote you submit at the Landmark special meeting will override
your proxy vote. If your shares of Landmark common stock are held in “street name” by a bank, broker or other nominee,
please follow the instructions on the voting instruction form provided by the record holder. “Street name” shareholders
who wish to vote in person at the Landmark special meeting will need to obtain a legal proxy from the institution that holds their
shares.
Assistance
If you
need assistance in completing your proxy, have questions regarding the Landmark special meeting, or would like additional copies
of this proxy statement/prospectus, please contact James P. “Jake” Farrell, telephone: (901) 457-3111, email: jakefarrell@landmarkbanktn.com;
or Charles E. “Buddy” Dickey, telephone: (901) 457-3123, email: cdickeylandmarkbanktn.com.
THE LANDMARK PROPOSALS
Proposal 1: Landmark Merger
Proposal
Landmark is asking
Landmark shareholders to approve the Landmark merger agreement, including the Landmark merger and all transactions contemplated thereby.
For a detailed discussion of the terms and conditions of the Landmark merger agreement, see the section entitled “The Merger Agreements.”
Landmark shareholders should read this proxy statement/prospectus, including any documents incorporated by reference into this proxy
statement/prospectus, and its annexes, carefully and in their entirety for more detailed information concerning the Landmark merger agreement
and the Landmark merger. A copy of the Landmark merger agreement is attached to this proxy statement/prospectus as Annex A.
As discussed
in the section entitled “The Landmark Merger—Landmark’s Reasons for the Landmark Merger and Recommendation of
the Landmark Board of Directors,” after careful consideration, the Landmark board of directors approved the Landmark merger
agreement and declared the Landmark merger agreement and the transactions contemplated thereby, including the Landmark merger,
to be advisable and in the best interest of Landmark and Landmark shareholders.
Required
Vote
Approval
of the Landmark merger proposal requires the affirmative vote of holders of at least a majority of the outstanding shares of Landmark
common stock entitled to vote on the proposal. If you mark “ABSTAIN” on your proxy, fail to submit a proxy or vote
in person at the Landmark special meeting, or if you fail to instruct your bank, broker or other nominee how to vote with respect
to the Landmark merger proposal, it will have the same effect as a vote against the proposal.
The
Landmark board of directors recommends that Landmark shareholders vote “FOR” the Landmark merger proposal.
Proposal 2: Landmark Adjournment
Proposal
Landmark
is asking Landmark shareholders to approve one or more adjournments of the Landmark special meeting, if necessary or appropriate,
to solicit additional proxies in favor of approval of the Landmark merger proposal if there are insufficient votes at the time
of such adjournment to approve the Landmark merger proposal.
If, at
the Landmark special meeting, there is an insufficient number of shares of Landmark common stock present or represented by proxy
and voting in favor of the Landmark merger proposal, Landmark will move to adjourn the Landmark special meeting in order to enable
the Landmark board of directors to solicit additional proxies in favor of the Landmark merger proposal. If the Landmark shareholders
approve the Landmark adjournment proposal, Landmark may adjourn the Landmark special meeting and use the additional time to solicit
additional proxies, including the solicitation of proxies from Landmark shareholders who have previously voted. Notice need not
be given of the adjourned meeting if the time and place of the adjourned meeting are announced at the Landmark special meeting.
If the meeting is adjourned to a date more than four months after the date fixed for the original meeting, Landmark must fix a
new record date. Even if a quorum is not present, the Landmark special meeting may be adjourned by the affirmative vote of a majority
in voting interest of those present in person or by proxy and entitled to vote at the Landmark special meeting until Landmark
shareholders holding the amount of stock required for a quorum are present or represented. In the absence of all the Landmark
shareholders, any officer entitled to preside at, or to act as presiding officer of, the Landmark special meeting may adjourn
the meeting from time to time without notice to the Landmark shareholders until Landmark shareholders holding the amount of stock
required for a quorum are present or represented.
Required
Vote
Approval
of the Landmark adjournment proposal requires the affirmative vote of holders of at least a majority of the outstanding shares
of Landmark common stock present or represented by proxy at the Landmark special meeting and entitled to vote on the proposal.
A quorum is not required for a vote on the Landmark adjournment proposal. If you mark “ABSTAIN” on your proxy, it
will have the same effect as a vote against the Landmark adjournment proposal. If you fail to submit a proxy or vote in person
at the Landmark special meeting, or if you fail to instruct your bank, broker or other nominee how to vote with respect to the
Landmark adjournment proposal, it will have no effect on the proposal.
The
Landmark board of directors recommends that Landmark shareholders vote “FOR” the Landmark adjournment proposal.
Other Matters to Come Before
the Landmark Special Meeting
As of
the date of this proxy statement/prospectus, the Landmark board of directors is not aware of any matters that will be presented
for consideration at the Landmark special meeting other than as described in this proxy statement/prospectus. If, however, the
Landmark board of directors properly brings any other matters before the Landmark special meeting, the persons named in the proxy
will vote the shares represented thereby in accordance with the recommendation of the Landmark board of directors on any such
matter.
THE
TRIUMPH SPECIAL MEETING
This section
contains information for Triumph shareholders about the Triumph special meeting. Triumph is mailing or otherwise delivering this
proxy statement/prospectus to you, as a Triumph shareholder, on or about [ ], 2021. This proxy statement/prospectus is also being
delivered to Triumph shareholders as Simmons’ prospectus for its offering of Simmons common stock in connection with the
Triumph merger. This proxy statement/prospectus is accompanied by a notice of the Triumph special meeting and a proxy that the
Triumph board of directors is soliciting for use by Triumph shareholders at the Triumph special meeting and at any adjournments
or postponements of the Triumph special meeting. References to “you” and “your” in this section are to
Triumph shareholders.
Date, Time and Place of
the Triumph Special Meeting
The Triumph special
meeting will be held on September 7 , 2021 at 6:00 p.m. Central Time, at Chickasaw Country Club, 3395 Galloway Avenue,
Memphis, Tennessee 38122. On or about [ ], 2021, Triumph commenced mailing or otherwise delivering this proxy statement/prospectus
and the enclosed form of proxy to its shareholders entitled to vote at the Triumph special meeting.
Matters to Be Considered
At the
Triumph special meeting, you will be asked to consider and vote upon the following proposals:
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the
Triumph merger proposal; and
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the
Triumph adjournment proposal, if necessary or appropriate.
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Recommendation of the Triumph
Board of Directors
The Triumph
board of directors has approved the Triumph merger agreement and unanimously recommends that you vote “FOR”
the Triumph merger proposal and, if necessary or appropriate, “FOR” the Triumph adjournment proposal.
See the section entitled “The Triumph Merger—Triumph’s Reasons for the Triumph Merger and Recommendation of
the Triumph Board of Directors” for a more detailed discussion of the factors considered by the Triumph board of directors
in reaching its decision to approve the Triumph merger agreement, including the Triumph merger and all transactions contemplated
thereby.
Completion of
the Triumph merger is conditioned upon the approval of the Triumph merger proposal, but is not conditioned upon the approval of
the Triumph adjournment proposal. Neither the closing of the Triumph merger nor the closing of the Landmark merger is conditioned
upon closing of the other merger.
Record Date and Quorum
The Triumph board
of directors has fixed the close of business on August 2, 2021 as the Triumph record date for determination of Triumph shareholders
entitled to notice of and to vote at the Triumph special meeting. Only Triumph shareholders at the close of business on the Triumph record
date will be entitled to notice of, and to vote at, the Triumph special meeting. As of the Triumph record date, there were 4,586,300
shares of Triumph common stock outstanding and entitled to notice of, and to vote at, the Triumph special meeting, held by approximately
276 Triumph shareholders of record. Each Triumph shareholder will be entitled to one vote for each share of Triumph common stock
held of record.
Triumph
shareholders that are present at the Triumph special meeting in person or by proxy and holding a majority of the outstanding shares
of Triumph common stock entitled to be voted at Triumph special meeting, will constitute a quorum at the Triumph special meeting.
All shares of Triumph common stock present at the
Triumph special meeting in person or by proxy, including abstentions, if any,
will be treated as present for purposes of determining the presence or absence of a quorum for all matters voted on at the Triumph
special meeting.
Under
the TBCA, if a quorum is not present at the Triumph special meeting, the chair of the meeting or the holders of a majority of
the shares of those present in person or by proxy and entitled to vote at the Triumph special meeting may adjourn the meeting
from time to time without notice to the Triumph shareholders until Triumph shareholders holding the amount of stock required for
a quorum are present or represented.
Vote Required; Treatment
of Abstentions; Broker Non-Votes and Failure to Vote
Triumph
merger proposal:
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Vote
required: Approval of the Triumph merger proposal requires the affirmative vote of
holders of at least a majority of the outstanding shares of Triumph common stock entitled
to vote on the proposal.
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Effect
of abstentions and broker non-votes: If you mark “ABSTAIN” on your proxy,
fail to submit a proxy or vote in person at the Triumph special meeting, or if you fail
to instruct your bank, broker or other nominee how to vote with respect to the Triumph
merger proposal, it will have the same effect as a vote against the proposal.
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Triumph
adjournment proposal:
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Vote
required: Approval of the Triumph adjournment proposal requires the votes cast by
the outstanding shares of Triumph common stock present or represented by proxy at the
Triumph special meeting and entitled to vote on the proposal favoring the approval to
exceed the votes cast opposing the approval. A quorum is not required for a vote on the
Triumph adjournment proposal.
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Effect
of abstentions and broker non-votes: If you mark “ABSTAIN” on your proxy,
fail to submit a proxy or vote in person at the Triumph special meeting, or if you fail
to instruct your bank, broker or other nominee how to vote with respect to the Triumph
adjournment proposal, it will have no effect on the proposal.
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Shares Held by Directors
and Executive Officers
As of the Triumph
record date, there were 4,586,300 shares of Triumph common stock outstanding and entitled to vote at the Triumph special meeting.
As of the Triumph record date, the directors and executive officers of Triumph and their affiliates beneficially owned and were entitled
to vote approximately 2,068,694 shares of Triumph common stock, representing approximately 45.11 % of the shares of Triumph
common stock outstanding on that date. Triumph currently expects that the shares of Triumph common stock beneficially owned by its directors
and executive officers will be voted in favor of the Triumph merger proposal and the Triumph adjournment proposal. In connection with
the Triumph merger agreement, each of the directors and certain executive officers of Triumph, in their capacities as individuals, have
separately entered into Triumph voting agreements pursuant to which they agreed to vote their beneficially owned shares of Triumph common
stock in favor of the Triumph merger proposal and certain related matters and against alternative transactions. For further information,
see the section entitled “The Merger Agreements—Voting Agreements.”
Voting of Proxies; Incomplete
Proxies
A Triumph
shareholder may vote by proxy or in person at the Triumph special meeting. If you hold your shares of Triumph common stock in
your name as a shareholder of record, you may use one of the following methods to submit a proxy as a Triumph shareholder:
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by
mail by completing, signing, dating and returning the proxy in the enclosed envelope,
which requires no additional postage if mailed in the United States; or
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in
person at the Triumph special meeting.
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When a
properly executed proxy is returned, the shares of Triumph common stock represented by it will be voted at the Triumph special
meeting in accordance with the instructions contained on the proxy. If any proxy is returned without indication as to how to vote,
the shares of Triumph common stock represented by the proxy will be voted in favor of both the Triumph merger proposal and the
Triumph adjournment proposal.
For Triumph
shareholders whose shares are registered in the name of a bank, broker or other nominee, please consult the voting instructions
provided by your bank, broker or other nominee.
If your
shares are held in “street name” by a bank, broker or other nominee, you should check the voting form used by that
firm to determine how to vote. You may not vote shares held in “street name” by returning a proxy directly to Triumph
or by voting at the Triumph special meeting unless you provide a “legal proxy,” which you must obtain from your bank,
broker or other nominee.
Every
Triumph shareholder’s vote is important. Accordingly, you should complete, sign, date and return the enclosed proxy, whether
or not you plan to attend the Triumph special meeting. Sending in your proxy will not prevent you from voting your shares personally
at the Triumph special meeting, since you may revoke your proxy at any time before it is voted.
Shares Held in “Street
Name”
If your
shares are held in “street name” by a bank, broker or other nominee, you must provide the record holder of your shares
with instructions on how to vote your shares. Banks, brokers and other nominees who hold shares of Triumph common stock in “street
name” for a beneficial owner of those shares typically have the authority to vote in their discretion on “routine”
proposals when they have not received instructions from beneficial owners. However, banks, brokers and other nominees are not
allowed to exercise voting discretion with respect to the approval of matters determined to be “non-routine,” without
specific instructions from the beneficial owner. Triumph expects that all proposals to be voted on at the Triumph special meeting
will be “non-routine” matters. Broker non-votes are shares held by a bank, broker or other nominee with respect to
which such entity is not instructed by the beneficial owner of such shares to vote on the particular proposal and the broker does
not have discretionary voting power on such proposal. If your bank, broker or other nominee holds your shares of Triumph common
stock in “street name,” such entity will vote your shares of Triumph common stock only if you provide instructions
on how to vote by complying with the voter instruction form sent to you by your bank, broker or other nominee with this proxy
statement/prospectus.
Revocability of Proxies
and Changes to a Triumph Shareholder’s Vote
If you
hold stock in your name as a shareholder of record, you may change your vote or revoke any proxy at any time before it is voted
by (1) completing, signing, dating and returning a proxy with a later date, (2) delivering a written revocation letter to Michael
J. McCarver of Triumph, or (3) voting in person at the Triumph
special meeting. If you choose to send a completed proxy bearing
a later date than your original proxy, the new proxy must be received before the beginning of the Triumph special meeting.
Any Triumph
shareholder entitled to vote at the Triumph special meeting may vote regardless of whether or not a proxy has been previously
given, but simply attending the Triumph special meeting (without notifying Michael J. McCarver) will not constitute revocation
of a previously given proxy.
Written
notices of revocation and other communications about revoking your proxy should be addressed to:
Triumph
Bancshares, Inc.
5699 Poplar Avenue
Memphis, Tennessee
38119
Attention: Michael
J. McCarver
If your
shares are held in “street name” by a bank, broker or other nominee, you should follow the instructions of your bank,
broker or other nominee regarding the revocation of voting instructions.
Solicitation of Proxies
Triumph
is soliciting proxies from its shareholders in conjunction with the Triumph merger. Triumph will bear the entire cost of soliciting
proxies from Triumph shareholders. In addition to solicitation of proxies by mail, Triumph will request that banks, brokers, nominees
and other record holders send proxies and proxy materials to the beneficial owners of Triumph common stock and secure their voting
instructions. Triumph will reimburse the record holders for their reasonable expenses in taking those actions. If necessary, Triumph
may use its directors, officers or employees, who will not be specially compensated, to solicit proxies from Triumph shareholders,
either personally or by telephone, facsimile, letter or electronic means.
Attending the Triumph Special
Meeting
If you
are a Triumph shareholder as of the Triumph record date, you may vote your shares in person at the Triumph special meeting. Even
if you currently plan to attend the Triumph special meeting, it is recommended that you also submit your proxy as described below,
so your vote will be counted if you later decide not to attend the Triumph special meeting. If you submit your vote by proxy and
later decide to vote at the Triumph special meeting, the vote you submit at the Triumph special meeting will override your proxy
vote. If your shares of Triumph common stock are held in “street name” by a bank, broker or other nominee, please
follow the instructions on the voting instruction form provided by the record holder. “Street name” shareholders who
wish to vote in person at the Triumph special meeting will need to obtain a legal proxy from the institution that holds their
shares.
Assistance
If you
need assistance in completing your proxy, have questions regarding the Triumph special meeting, or would like additional copies
of this proxy statement/prospectus, please contact Michael J. McCarver, 5699 Poplar Avenue, Memphis, Tennessee 38119, telephone:
(901) 333-8802.
THE
TRIUMPH PROPOSALS
Proposal
1: Triumph Merger Proposal
Triumph is asking
Triumph shareholders to approve the Triumph merger agreement, including the Triumph merger and all transactions contemplated thereby.
For a detailed discussion of the terms and conditions of the Triumph merger agreement, see the section entitled “The Merger Agreements.”
Triumph shareholders should read this proxy statement/prospectus, including any documents incorporated by reference into this proxy statement/prospectus,
and its annexes, carefully and in their entirety for more detailed information concerning the Triumph merger agreement and the Triumph
merger. A copy of the Triumph merger agreement is attached to this proxy statement/prospectus as Annex B.
As discussed
in the section entitled “The Triumph Merger—Triumph’s Reasons for the Triumph Merger and Recommendation of the
Triumph Board of Directors,” after careful consideration, the Triumph board of directors approved the Triumph merger agreement
and declared the Triumph merger agreement and the transactions contemplated thereby, including the Triumph merger, to be advisable
and in the best interest of Triumph and Triumph shareholders.
Required
Vote
Approval
of the Triumph merger proposal requires the affirmative vote of holders of at least a majority of the outstanding shares of Triumph
common stock entitled to vote on the Triumph merger proposal. If you mark “ABSTAIN” on your proxy, fail to submit
a proxy or vote in person at the Triumph special meeting or fail to instruct your bank, broker or other nominee how to vote with
respect to the Triumph merger proposal, it will have the same effect as a vote against the Triumph merger proposal.
The
Triumph board of directors recommends that Triumph shareholders vote “FOR” the Triumph merger proposal.
Proposal 2: Triumph Adjournment
Proposal
Triumph
is asking Triumph shareholders to approve one or more adjournments of the Triumph special meeting, if necessary or appropriate,
to solicit additional proxies in favor of approval of the Triumph merger proposal if there are insufficient votes at the time
of such adjournment to approve the Triumph merger proposal.
If, at
the Triumph special meeting, there is an insufficient number of shares of Triumph common stock present or represented by proxy
and voting in favor of the Triumph merger proposal, Triumph will move to adjourn the Triumph special meeting in order to enable
the Triumph board of directors to solicit additional proxies in favor of the Triumph merger proposal. If the Triumph shareholders
approve the Triumph adjournment proposal, Triumph may adjourn the Triumph special meeting and use the additional time to solicit
additional proxies, including the solicitation of proxies from Triumph shareholders who have previously voted. Notice need not
be given of the adjourned meeting if the time and place of the adjourned meeting are announced at the Triumph special meeting.
If the meeting is adjourned to a date more than four months after the date fixed for the original meeting, Triumph must fix a
new record date. Under the TBCA, if a quorum is not present at the Triumph special meeting, the chair of the meeting or the holders
of a majority of the shares of those present in person or by proxy and entitled to vote at the Triumph special meeting may adjourn
the meeting from time to time without notice to the Triumph shareholders until Triumph shareholders holding the amount of stock
required for a quorum are present or represented.
Required
Vote
Approval
of the Triumph adjournment proposal requires the votes cast by the outstanding shares of Triumph common stock present or represented
by proxy at the Triumph special meeting and entitled to vote on the proposal favoring the approval to exceed the votes cast opposing
the approval. A quorum is not required for a vote on the Triumph adjournment proposal. If you mark “ABSTAIN” on your
proxy, fail to submit a proxy or vote in person at the Triumph special meeting or if you fail to instruct your bank, broker or
other nominee how to vote with respect to the Triumph adjournment proposal, it will have no effect on the proposal.
The
Triumph board of directors recommends that Triumph shareholders vote “FOR” the Triumph adjournment proposal.
Other Matters to Come Before
the Triumph Special Meeting
As of
the date of this proxy statement/prospectus, the Triumph board of directors is not aware of any matters that will be presented
for consideration at the Triumph special meeting other than as described in this proxy statement/prospectus. If, however, the
Triumph board of directors properly brings any other matters before the Triumph special meeting, the persons named in the proxy
will vote the shares represented thereby in accordance with the recommendation of the Triumph board of directors on any such matter.
INFORMATION
ABOUT THE COMPANIES
Simmons First National Corporation
P.O. Box 7009
Pine Bluff, Arkansas 71611
Telephone: (870) 541-1000
Simmons is a financial
holding company registered under the BHC Act. Simmons is headquartered in Arkansas and as of March 31, 2021, had, on a consolidated basis,
total assets of $23.3 billion, total net loans of $12.0 billion, total deposits of $18.2 billion and total shareholders’ equity
of $2.9 billion. Simmons conducts its banking operations through its subsidiary bank, Simmons Bank, in approximately 200 financial
centers as of March 31, 2021, located throughout market areas in Arkansas, Kansas, Missouri, Oklahoma, Tennessee and Texas.
Simmons seeks
to build shareholder value by focusing on strong asset quality, maintaining strong capital, managing its liquidity position, improving
its operational efficiency and opportunistically growing its business, both organically and through acquisitions of financial
institutions.
Simmons’
business philosophy centers on building strong, deep customer relationships through excellent customer service and integrity in
its operations. While Simmons has grown in recent years into a regional financial institution and one of the largest bank/financial
holding companies headquartered in the State of Arkansas, Simmons continues to emphasize, where practicable, a community-based
mindset focused on local associates responding to local banking needs and making business decisions in the markets they serve.
Those efforts, though, are buttressed by experienced, centralized support functions in select, critical areas. While Simmons serves
a variety of customers and industries, Simmons is not dependent on any single customer or industry.
Simmons common
stock is traded on Nasdaq under the symbol “SFNC.”
Additional information
about Simmons may be found in the documents incorporated by reference into this proxy statement/prospectus. See the section entitled
“Where You Can Find More Information.”
Landmark Community Bank
5880 Ridge Bend Road
Memphis, Tennessee 38120
Telephone: (901) 850-0555
Landmark is a
Tennessee state-chartered bank. Landmark operates out of a main office in Memphis, Tennessee, with seven other branch offices
located in in the Memphis and Nashville, Tennessee metropolitan areas. As of March 31, 2021, Landmark had total assets of $1.0
billion, total net loans of $0.8 billion, total deposits of $0.8 billion, and total shareholders’ equity of $102 million.
Landmark does not have a class of securities registered under Section 12 of the Exchange Act and is not subject to the reporting
requirements of Section 13(a) or 15(d) of the Exchange Act, and, accordingly, does not file documents or reports with the SEC.
Landmark conducts
a full-service banking business in its service area, emphasizing the banking needs of individuals and small to medium-sized businesses.
Landmark draws most of its customer deposits and conducts most of its lending transactions from and within a primary service area
in Shelby County, the western area of Fayette County, Davidson County, and Williamson County, Tennessee.
The principal
business of Landmark is to accept deposits from the public and to make loans and other investments. The principal sources of funds
for Landmark’s loans and investments are demand, time, savings,
money market deposits, retirement accounts and other deposits
(including negotiable order of withdrawal or NOW accounts). In addition, Landmark receives funds from amortization and prepayment
of loans, sales to other lenders or institutions of loans or participations in loans, fees received from other lenders or institutions
for servicing loans sold to such lenders or institutions, and borrowings. The principal sources of income for Landmark are interest
and fees collected on loans, including fees received for servicing loans sold to other lenders or institutions, and, to a lesser
extent, interest and dividends collected on other investments. The primary expenses of Landmark are interest paid on savings and
other deposits (including NOW accounts), interest paid on other borrowings by Landmark, employee compensation, office expenses,
and other overhead expenses.
The profitability
of Landmark depends primarily on the extent to which Landmark’s earnings, primarily interest collected on loans, exceed
Landmark’s expenses, primarily interest paid by Landmark on deposits used to fund its loans. The extent to which Landmark
will be able to produce and maintain a positive spread between its income and expenses will be affected by, among other things,
the actions of its competitors and changes in applicable laws and regulations, monetary control policies, general economic conditions,
and the extent to which Landmark makes relatively short-term loans or makes long-term loans with variable or adjustable interest
rates.
Landmark is authorized
to make both secured and unsecured loans to individuals, partnerships, corporations, and other entities. Landmark’s lending
business consists principally of making consumer loans to individuals and commercial loans to medium-sized business and professional
concerns. Landmark may also emphasize the extension of relatively short-term loans or, to the extent it makes long-term loans,
the extension of loans with variable or adjustable interest rates, in an effort to retain the flexibility to maintain a positive
spread between its interest income and expense. The extent to which Landmark may be successful in implementing this lending policy,
however, will depend in part upon consumer acceptance, the actions of Landmark’s competitors, and, to some extent, usury
laws and other rules and regulations applicable to Landmark.
Historic financial
information about Landmark is available from the FDIC on its website at www.fdic.gov. The website address of the FDIC is included
as an inactive textual reference only. Except as specifically incorporated by reference into this proxy statement/prospectus,
the information on this website is not a part of this proxy statement/prospectus and therefore is not incorporated by reference
into this proxy statement/prospectus.
Triumph
Bancshares, Inc.
5699 Poplar
Avenue
Memphis,
Tennessee 38119
Telephone:
(901) 333-8800
Triumph is a
bank holding company registered under the BHC Act. Triumph was incorporated in Tennessee in 2005 to serve as the bank holding
company for and sole shareholder of Triumph Bank, which was incorporated as a Tennessee state-chartered bank in 2006. Triumph
Bank is headquartered in Memphis, Tennessee, and currently operates from nine office locations (including six full-service branches
and three loan production offices) in Arlington, Brentwood, Collierville, Germantown, Memphis, Nashville, and Union City in Tennessee.
As of March 31, 2021, Triumph had consolidated total assets of $895.5 million, total net loans of $702.9 million, total deposits
of $750.0 million, and total shareholders’ equity of $89.1 million. Triumph does not have a class of securities registered
under Section 12 of the Exchange Act and is not subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange
Act, and, accordingly, does not file documents or reports with the SEC.
Triumph conducts
a full-service banking business in its service area, emphasizing the banking needs of individuals and small to medium-sized businesses.
Triumph draws most of its customer deposits and conducts most of its lending transactions from and within a primary service area
in Shelby County, the western area of Fayette County, Davidson County, and Williamson County, Tennessee.
The principal
business of Triumph is to accept deposits from the public and to make loans and other investments. The principal sources of funds
for Triumph’s loans and investments are demand, time, savings, money market deposits, retirement accounts and other deposits
(including NOW accounts). In addition, Triumph receives funds from amortization and prepayment of loans, sales to other lenders
or institutions of loans or participations in loans, fees received from other lenders or institutions for servicing loans sold
to such lenders or institutions, and borrowings. The principal sources of income for Triumph are interest and fees collected on
loans, and, to a lesser extent, interest and
dividends collected on other investments. The primary expenses of Triumph are interest paid on savings and other deposits (including
NOW accounts), interest paid on other borrowings by Triumph, employee compensation, office expenses, and other overhead expenses.
The profitability
of Triumph depends primarily on the extent to which Triumph’s earnings, primarily interest collected on loans, exceed Triumph’s
expenses, primarily interest paid by Triumph on deposits used to fund its loans. The extent to which Triumph will be able to produce
and maintain a positive spread between its income and expenses will be affected by, among other things, the actions of its competitors
and changes in applicable laws and regulations, monetary control policies, general economic conditions, and the extent to which
Triumph makes relatively short-term loans or makes long-term loans with variable or adjustable interest rates.
Triumph is authorized
to make both secured and unsecured loans to individuals, partnerships, corporations, and other entities. Triumph’s lending
business consists principally of making consumer loans to individuals and commercial loans to medium-sized business and professional
entities.
Historic
financial information about Triumph is available from the Federal Financial Institutions Examination Council, or the FFIEC, on
its website at www.ffiec.gov. The website address of the FFIEC is included as an inactive textual reference only. Except as specifically
incorporated by reference into this proxy statement/prospectus, the information on this website is not a part of this proxy statement/prospectus
and therefore is not incorporated by reference into this proxy statement/prospectus.
THE
LANDMARK MERGER
The following
discussion contains material information regarding the Landmark merger. The discussion is subject to, and qualified in its entirety
by reference to, the Landmark merger agreement, which is attached to this proxy statement/prospectus as Annex A and is
incorporated by reference into this proxy statement/prospectus. The following is not intended to provide factual information about
the parties or any of their respective subsidiaries or affiliates. This discussion does not purport to be complete and may not
contain all of the information about the Landmark merger that is important to you. We urge you to read the Landmark merger agreement
carefully and in its entirety, as it is the legal document governing the Landmark merger.
Terms of the Landmark
Merger
Each of the Simmons
board of directors, the Simmons Bank board of directors and the Landmark board of directors approved the Landmark merger agreement.
The Landmark merger agreement provides that, among other things, Landmark will merge with and into Simmons Bank, with Simmons
Bank as the surviving bank in the merger.
Based on the assumptions
set forth below, at the Landmark effective time, each share of Landmark common stock that is issued and outstanding immediately prior
to the Landmark effective time, excluding certain specified shares, will be converted into the right to receive, subject to possible
adjustment, the Landmark merger consideration. In the aggregate, Simmons expects to issue approximately 4,500,000 shares
of Simmons common stock and pay approximately $7,000,000 (minus the cash payment for outstanding Landmark stock options) to Landmark
shareholders upon completion of the Landmark merger, subject to certain conditions and potential adjustments under the Landmark merger
agreement. The Landmark merger consideration is based on the assumption that (i) 22,215,981 shares of Landmark common stock are
issued and outstanding and (ii) 218,400 shares of Landmark common stock are subject to outstanding Landmark stock options with
a weighted average exercise price of $3.49, in each case, immediately prior to the Landmark effective time. In addition, we have
assumed that the Landmark/Simmons average closing price is equal to $27.49, which was the closing sales price of Simmons common
stock on the last practicable trading day prior to printing this proxy statement/prospectus.
Simmons will
not issue any fractional shares of Simmons common stock in the Landmark merger. Instead, a Landmark shareholder who would otherwise
be entitled to a fractional share of Simmons common stock upon completion of the Landmark merger will receive, in lieu thereof,
an amount in cash, rounded up to the nearest whole cent (without interest), determined by multiplying (i) the fraction of a share
(rounded to the nearest thousandth when expressed in decimal form) of Simmons common stock that such Landmark shareholder would
otherwise be entitled to receive by (ii) the Landmark/Simmons average closing price.
Landmark shareholders
are being asked to approve the Landmark merger agreement, including the Landmark merger and all transactions contemplated thereby.
See the section entitled “The Merger Agreements” for additional and more detailed information regarding the legal
documents that govern the Landmark merger, including information about the conditions to consummation of the Landmark merger and
the provisions for terminating or amending the Landmark merger agreement.
Background of the Landmark
Merger
Landmark’s
management and the Landmark board of directors periodically evaluate and consider various strategic alternatives, with the ultimate
goal of optimizing shareholder value. Various options, such as enhancing organic growth, raising additional capital, acquiring
loans or assuming deposits from other institutions, merging with a similar-sized organization, and selling Landmark are among
the alternatives the Landmark board of directors has considered and evaluated on an on-going basis.
As a part
of its on-going evaluations, and in light of national and regional market conditions in which Landmark operates, in the summer
of 2017 the Landmark board of directors authorized Landmark’s chief executive officer to contact potential third parties
to initiate preliminary discussions regarding whether there was any interest in pursuing a transaction. As a result of these preliminary
inquiries, Landmark held more substantive discussions with four financial institutions over the course of 2018, including Simmons.
None of the institutions other than Simmons expressed a desire for further discussions and none of these institutions other than
Simmons entered into any non-disclosure agreements with Landmark.
In November
2018, Landmark and Simmons signed a customary non-disclosure agreement. The following month, Landmark’s Chief Executive
Officer and Chief Financial Officer and Simmons’ Chief Executive Officer, Chief Financial Officer, Chief Banking Officer
and Chief Administrative Officer held an in-person meeting in Memphis, Tennessee at an off-site location to discuss the potential
for a transaction between the two parties.
In March 2019,
Simmons made an oral offer to acquire Landmark for shares of Simmons common stock with the following terms: 100% stock offer, fixed price
of $105 million, and shares would not exceed 4,000,000 or be less than 3,500,000. In April 2019, the Landmark board of directors met
to consider the oral offer. At this meeting, a representative of Landmark’s financial advisor, Olsen Palmer, discussed with
the Landmark board of directors the relative financial considerations with respect to such offer.
In April 2019,
at the direction of the Landmark board of directors, a representative of Olsen Palmer, on behalf of Landmark, made a verbal counterproposal
to Simmons with the following terms: 4.3 million shares of Simmons of common stock and $5.9 million in cash. Simmons verbally indicated
its agreement to such counterproposal, but did not provide a written offer or letter of intent.
In May 2019,
the Landmark board of directors met to further discuss the oral offer from Simmons. Following the meeting, Landmark offered three alternative
counterproposals to Simmons: one proposal would be based on the same structure as Simmons’ prior verbal offer but with 0.2 million
additional shares of Simmons common stock; one proposal would match Simmons’ prior verbal offer but include a special dividend
of $0.25 per share of Landmark common stock payable to Landmark shareholders by Landmark between signing and closing; and
one proposal would match Simmons’ prior verbal offer but include a floor mechanism such that the per share consideration to Landmark
shareholders would not be less than $5.00. On the same date, Simmons communicated to Landmark that it was no longer interested in pursuing
a transaction at that time, because it had other larger transactions it was pursuing.
In September
2019, Landmark engaged Olsen Palmer to assist Landmark in evaluating various strategic alternatives. During the remainder of 2019,
Landmark had discussions with other financial institutions on a confidential basis, none of which were the financial institutions Landmark
had discussions with in 2018. As a result of these conversations, several financial institutions signed non-disclosure agreements with
Landmark and conducted preliminary diligence. None of these other financial institutions made an offer to acquire Landmark.
In January
2020, Simmons contacted the Chief Executive Officer of Landmark to schedule an additional meeting. Representatives of Landmark
and Simmons met in February 2020 in Memphis at an off-site location and on February 12, 2020, Simmons and Landmark entered into
a new non-disclosure agreement, which was substantially similar to the agreement signed in November 2018.
On February
15, 2020, Simmons submitted a new letter of intent to Landmark for its consideration, offering to acquire Landmark for a combination
of 4.3 million shares of Simmons common stock and $10 million cash in aggregate transaction value. On February 18, 2020, the Landmark
board of directors met and approved the terms of the letter of intent. On February 19, 2020, Landmark countersigned the letter
of intent.
On March
4, 2020, Simmons withdrew its letter of intent from February 15, 2020, citing the concerns and uncertainty regarding the COVID-19
pandemic as the reason for its withdrawal.
Throughout
the remainder of 2020, Landmark, its management and the Landmark board of directors, focused their energy on addressing the many
challenges brought about due to the COVID-19 pandemic.
In January
2021, Simmons reached out to Landmark to schedule a follow-up meeting. The Chief Executive Officer of Landmark and the Chief Executive
Officer of Simmons met in February 2021 in Memphis, Tennessee at an off-site location, and confirmed that the non-disclosure agreement
entered into on February 12, 2020 remained binding and effective.
On February
12, 2021, Simmons submitted a new letter of intent to Landmark, offering to acquire Landmark for either $130 million cash or 4,650,000
shares of Simmons common stock valued at approximately $124.3 million. Landmark made a counterproposal for 4,650,000 shares of
Simmons common stock and $15 million in cash consideration. Simmons provided a revised letter of intent on February 16, 2021,
offering a combination of 4.5 million shares of Simmons common stock and $7 million in cash consideration in aggregate transaction
value for the acquisition of Landmark, including the cash-out of stock options as part of the overall transaction offer.
On February
19, 2021, the Landmark board of directors met to consider the revised offer from Simmons. A representative of Olsen Palmer participated
in the meeting and discussed with the Landmark board of directors this offer. After discussion
among the Landmark board of directors, the board approved the terms set forth in Simmons’ letter of intent of February 12,
2021 and authorized Landmark management to countersign the letter of intent. Simmons submitted an expanded due diligence request
list to Landmark on the same date.
In April
2021, Simmons submitted an initial draft of the Landmark merger agreement to Baker, Donelson, Bearman, Caldwell & Berkowitz,
PC, Landmark’s counsel, which we refer to as Baker Donelson. During April and May 2021, the parties negotiated the terms
of the Landmark merger agreement and the related transaction documents, including the Landmark voting agreements, and discussed
such documentation with their legal and financial advisors. During this period, Landmark and Simmons exchanged several additional
drafts of the Landmark merger agreement and the related transaction documents, including the Landmark voting agreements. In addition,
during this time, Landmark’s management conducted diligence on Simmons, while Simmons continued its diligence on Landmark.
On May 25,
2021, the Landmark board of directors met to discuss the terms of the Landmark merger agreement and related transaction documents. A
representative of Olsen Palmer attended this meeting and discussed the financial terms of the Landmark merger and provided its opinion
orally to the effect that, as of such date and subject to the procedures followed, assumptions made, matters considered, and qualifications
and limitations on the review undertaken by Olsen Palmer as set forth in its opinion, the Landmark merger consideration to be received
by Landmark shareholders, as described in the section entitled “—Opinion of Landmark’s Financial Advisor,”
in the proposed Landmark merger was fair, from a financial point of view, to the holders of Landmark common stock. For a description
of the Olsen Palmer opinion, please refer to the section entitled “—Opinion of Landmark’s Financial Advisor.”
Baker Donelson also attended this meeting and discussed the key terms of the Landmark merger agreement with the Landmark board of directors.
After listening
to the presentations by its advisors and discussing the terms of the proposed Landmark merger agreement, the terms of the Landmark
voting agreements, and the matters discussed during that meeting and prior meetings of the Landmark board of directors, including
the factors described in the section entitled “—Landmark’s Reasons for the Landmark Merger and Recommendations
of the Landmark Board of Directors,” upon a motion duly made and seconded, the Landmark board of directors determined that
the Landmark merger agreement, including the Landmark merger and the other transactions contemplated thereby, was in the
best
interests of Landmark and its shareholders, and approved the Landmark merger agreement, including the Landmark merger and the
other transactions contemplated by the Landmark merger agreement and recommended that the shareholders of Landmark approve the
Landmark merger.
On June 4,
2021, the Simmons board of directors held a meeting to consider the terms of the proposed Landmark merger and Landmark merger
agreement. At the meeting, members of Simmons’ management reported on the status of due diligence and negotiations with
Landmark. Also at the meeting, Simmons’ financial advisor reviewed with the Simmons board of directors financial aspects
of the proposed Landmark merger. At the meeting, Simmons’ internal legal counsel reviewed with the Simmons board of directors
its fiduciary duties and reviewed the key terms of the Landmark merger agreement and related agreements (including the Landmark
voting agreements), as described elsewhere in this proxy statement/prospectus, including a summary of the provisions relating
to governance of the combined company and the provisions relating to employee matters.
After considering
the proposed terms of the Landmark merger agreement, the terms of the Landmark voting agreements, and taking into consideration
the matters discussed during that meeting and prior meetings of the Simmons board of directors, including the factors described
in the section entitled “—Simmons’ Reasons for the Landmark Merger,” the Simmons board of directors determined
that the Landmark merger was consistent with Simmons’ business strategies and in the best interests of Simmons and Simmons
shareholders and the Simmons board of directors voted to approve and adopt the Landmark merger agreement, the Landmark merger
and the other transactions contemplated by the Landmark merger agreement.
Following
the board meetings of Landmark and Simmons, on June 4, 2021, Landmark and Simmons signed the Landmark merger agreement; each of
the directors and certain executive officers of Landmark signed the Landmark voting agreements; and Olsen Palmer provided the
Landmark board of directors its written opinion. On June 7, 2021, the parties issued a joint press release announcing
the execution of the Landmark merger agreement.
Landmark’s Reasons
for the Landmark Merger and Recommendation of the Landmark Board of Directors
At the special
board meeting held on May 25, 2021, the Landmark board of directors approved the Landmark merger agreement, the Landmark merger
and the transactions contemplated by the Landmark merger agreement, determining that the Landmark merger is advisable and fair
to, and in the best interest of, Landmark and its shareholders.
In reaching its
decision to approve the Landmark merger agreement, the Landmark merger and the other transactions contemplated by the Landmark
merger agreement and to recommend that Landmark shareholders vote “FOR” the Landmark merger proposal, the Landmark
board of directors evaluated the Landmark merger in consultation with Landmark’s management, as well as Landmark’s
financial, legal, and other professional advisors. The Landmark board of directors considered a number of factors including, without
limitation, the following:
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information
with respect to the businesses, earnings, operations, financial conditions, prospects,
capital levels, and asset qualities of Landmark and Simmons, both individually and after
giving effect to the Landmark merger;
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the
market value of Simmons common stock prior to the execution of the Landmark merger agreement,
the prospects for future appreciation of Simmons common stock, and the history of dividends
payable by Simmons to holders of Simmons common stock;
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the
market for and trading liquidity of Simmons common stock;
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the
value to be received by Landmark shareholders in the Landmark merger as compared to potential
Landmark shareholder value for Landmark as a stand-alone entity;
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the
opinion dated June 4, 2021, of Olsen Palmer to the Landmark board of directors as to the
fairness, from a financial point of view and as of the date of the opinion, to the holders
of Landmark common stock of the Landmark merger consideration to be received by such holders
in the proposed Landmark merger, as more fully described below in the section entitled
“—Opinion of Landmark’s Financial Advisor”;
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the
perceived risks and uncertainties attendant to Landmark’s operation as an independent
banking organization, including the risks and uncertainties related to competition in
market areas of Landmark Bank, increased operating and regulatory costs, interest rate
environments, and potentially increased capital requirements;
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the
expected impact of the Landmark merger on constituencies served by Landmark, including
its borrowers, depositors, and communities;
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the
effects of the Landmark merger on Landmark’s employees, including the ability of
those employees to participate in Simmons’ benefit plans;
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the
understanding that the structure and terms of the Landmark merger would result in favorable
tax consequences to the shareholders of Landmark;
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the
review of potential strategic affiliation partners other than Simmons, the prospects
of such other potential strategic affiliation partners, and the (lack of) likelihood
of a more favorable transaction with such potential affiliation partners;
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consideration
of the alternatives to the Landmark merger, including remaining independent and growing
organically and then selling to or merging with another institution at a future time,
attempting to raise outside capital through a public sale of Landmark securities, and
engaging in a merger transaction with a similarly-sized financial institution;
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the
current environment in the financial services industry, including national, regional,
and local economic conditions, the interest rate environment, continued consolidation,
uncertainties in the regulatory climate for financial institutions, the current environment
for community banks, including in the western and middle Tennessee markets where Landmark
operates, and current financial market conditions and the likely effects of these factors
on Landmark’s and Simmons’ potential growth, development, productivity, and
strategic options;
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that
a portion of the aggregate Landmark merger consideration would be paid through a fixed
number of shares of Simmons common stock, such that the nominal value of the aggregate
Landmark merger consideration would increase or decrease with the fluctuation of the
day-to-day market price of Simmons common stock;
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the
possible disruption to Landmark’s business that could result from the announcement
of the Landmark merger and the resulting distraction of management’s attention
from the day-to-day operations of Landmark’s business;
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that
the Landmark merger agreement restricts the conduct of Landmark’s business prior
to the completion of the Landmark merger which, subject to specific exceptions, could
delay or prevent Landmark from undertaking business opportunities that may arise or any
other action it would otherwise take with respect to the operations of Landmark absent
the pending Landmark merger;
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the
risks associated with the provision in the Landmark merger agreement that Landmark is
not permitted to solicit or respond to any acquisition proposals, except for the limited
right to terminate the Landmark merger agreement and pay a termination fee in the event
Landmark receives an unsolicited superior offer, which fee may deter others from proposing
an alternative transaction that may be more advantageous to the Landmark shareholders;
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the
risk that, while Landmark expects that the Landmark merger will be consummated, there
can be no assurance that all conditions to the parties’ obligations to complete
the Landmark merger will be satisfied, including the risk that Landmark shareholder approval
might not be obtained and, as a result, the Landmark merger may not be consummated; and
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the
anticipated benefits to Landmark of being acquired by a larger financial institution
that would be better equipped to respond to economic and industry developments and to
develop and build on their positions in existing markets.
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The foregoing
discussion of the information and factors considered by the Landmark board of directors is not intended to be exhaustive, but,
rather, includes all material factors considered by the Landmark board of directors. In reaching its decision to approve the Landmark
merger agreement, the Landmark merger and the other transactions contemplated by the Landmark merger agreement, the Landmark board
of directors did not quantify, rank or otherwise assign any relative weights to the factors considered, and individual directors
may have given different weights to different factors. The Landmark board of directors considered all these factors as a whole,
including through its discussions with and questioning of, Landmark’s management and Landmark’s financial, legal and
other professional advisors, and overall considered the factors to be favorable to, and supportive of its determination to approve
the Landmark merger agreement and the transactions contemplated thereby, including the Landmark merger.
The Landmark
board of directors collectively made its determination with respect to the Landmark merger based on the conclusion reached by
its members, based on the factors that each of them considered appropriate, that the Landmark merger agreement, the Landmark merger
and the other transactions contemplated by the Landmark merger agreement are in the best interests of Landmark and its shareholders
and that the benefits expected to be achieved from the Landmark merger outweigh the potential risks and vulnerabilities.
This explanation
of the Landmark board of directors’ reasoning and all other information presented in this section is forward-looking in
nature and, therefore, should be read in light of the factors discussed in the section entitled “Cautionary Statement Regarding
Forward-Looking Statements.”
For the
reasons set forth above, the Landmark board of directors approved the Landmark merger agreement, the Landmark merger and the other
transactions contemplated by the Landmark merger agreement, determining that they are advisable and fair to, and in the best interest
of, Landmark and its shareholders and recommends that Landmark shareholders vote “FOR” the Landmark merger proposal.
Each of the directors
and certain executive officers of Landmark, in their capacities as individuals, entered into Landmark voting agreements with Simmons
and Landmark pursuant to which they agreed to vote “FOR” the Landmark merger proposal and “FOR”
any other matters required to be approved by the Landmark shareholders in furtherance of the Landmark merger proposal. For more
information regarding the Landmark voting agreements, please see the section entitled “The Merger Agreements—Voting
Agreements.”
Opinion of Landmark’s
Financial Advisor
Landmark retained
Olsen Palmer to render financial advisory and investment banking services and to act as the exclusive financial advisor to Landmark
in connection with a potential strategic combination. Olsen Palmer is an investment banking firm specializing in community bank
mergers and acquisitions. Landmark selected Olsen Palmer as
its financial advisor on the basis of its experience and expertise
in representing community banks in similar transactions and its familiarity with Landmark. Olsen Palmer, as part of its investment
banking services, is regularly engaged in the valuation of financial institutions and their securities in connection with mergers
and acquisitions.
In its capacity as financial
advisor, Olsen Palmer provided an opinion to the Landmark board of directors in connection with the Landmark merger. At the meeting
of the Landmark board on May 25, 2021, Olsen Palmer provided an oral opinion to the Landmark board of directors (which was subsequently
confirmed in writing by delivery of Olsen Palmer’s written opinion dated June 4, 2021) that, based upon and subject to the various
factors, assumptions and limitations set forth in such opinion, Olsen Palmer representatives’ experience as investment bankers,
Olsen Palmer’s work as described in such opinion and other factors Olsen Palmer deemed relevant, as of such date, the Landmark
merger consideration to be received by Landmark shareholders in the proposed Landmark merger was fair, from a financial point of view,
to Landmark shareholders. The Olsen Palmer written opinion, dated June 4, 2021, is sometimes referred to as the Olsen Palmer opinion.
The full text of the Olsen Palmer opinion, which sets forth, among other things, the assumptions made, procedures followed, matters considered
and limitations on the review undertaken by Olsen Palmer in rendering its opinion, is attached to this proxy statement/prospectus as
Annex E. The summary of the Olsen Palmer opinion set forth herein is qualified in its entirety by reference to the full text of
the opinion. Landmark shareholders should read the full text of the Olsen Palmer opinion carefully and in its entirety.
The Olsen Palmer opinion
is addressed to the Landmark board of directors, is directed only to the fairness, from a financial point of view, to the Landmark
shareholders of the Landmark merger consideration to be received by Landmark shareholders in the Landmark merger with Simmons, and
does not constitute a recommendation to any shareholder as to how such shareholder should vote or act on any matters relating to the
Landmark merger. Olsen Palmer expressed no opinion as to the fairness of the Landmark merger consideration to the creditors or other
constituencies of Landmark. The Olsen Palmer opinion is directed only to the fairness, from a financial point of view, of the Landmark
merger consideration to the Landmark shareholders and does not address the underlying business decision of Landmark to engage in the
Landmark merger or the relative merits of the Landmark merger as compared to any other alternative business strategies that might exist
for Landmark. Olsen Palmer did not express any opinion as to the fairness of the amount or nature of the compensation to be received
in the Landmark merger by any officer, director, or employee, or class of such persons, relative to the compensation to be received in
the Landmark merger by any other shareholder. The Olsen Palmer opinion should not be construed as creating any fiduciary duty on the
part of Olsen Palmer to any party or person. The Olsen Palmer opinion was not reviewed or issued by a fairness opinion committee. Olsen
Palmer has not been requested to opine as to, and the Olsen Palmer opinion does not express an opinion as to or otherwise address, among
other things: (i) the fairness of any portion or aspect of the Landmark merger to any one class or group of Landmark or any other party’s
security holders or other constituents vis-à-vis any other class or group of Landmark’s or such other party’s security
holders or other constituents (including, without limitation, the allocation of any consideration amongst or within such classes or groups
of security holders or other constituents), or (ii) the fairness, financial or otherwise, of the amount, nature or any other aspect of
any compensation to or consideration payable to or received by any officers, directors or employees of any party to the Landmark merger,
any class of such persons or any other party, relative to the Landmark merger consideration or otherwise. Olsen Palmer expressed no opinion
as to the actual value of Simmons common stock when issued in the Landmark merger or the prices at which Landmark common stock or Simmons
common stock will trade following announcement of the Landmark merger or at any future time.
In performing its review,
and for purposes of rendering its opinion, Olsen Palmer relied upon the accuracy and completeness of all of the financial and other information
that was available to it from public sources, that was provided to Olsen Palmer by Landmark, its representatives or representatives
of Simmons or that was otherwise reviewed by Olsen Palmer and has assumed, without independent verification, such accuracy and completeness
of all such information. Olsen Palmer further relied on the assurances of the management of Landmark that they are not aware of any facts
or circumstances that would make any of such information inaccurate or misleading. Olsen Palmer has not been asked to
and has not undertaken an independent verification of any of such information and does not assume any responsibility or liability
for the accuracy or completeness
thereof. With Landmark’s consent, Olsen Palmer relied upon
the advice Landmark has received from its legal, accounting and tax advisors as to all legal, accounting and tax matters relating
to the Landmark merger that is contemplated by the Landmark merger agreement and Olsen Palmer assumed that all such advice is
correct.
In connection
with its opinion, Olsen Palmer made such reviews, analyses and inquiries as it deemed necessary and appropriate under the circumstances.
Among other things, Olsen Palmer reviewed:
|
·
|
a
draft version of the Landmark merger agreement;
|
|
·
|
certain
financial statements and other historical financial information of Landmark and Simmons
that Olsen Palmer deemed relevant;
|
|
·
|
internal
financial projections for Landmark for the year ending December 31, 2021 and estimated
long-term annual earnings and balance sheet growth rates for the years ending December
31, 2022, December 31, 2023, December 31, 2024, December 31, 2025, and December 31, 2026
as provided by Landmark;
|
|
·
|
publicly
available “street estimates” for Simmons, as well as assumed long-term dividends, and growth rates for Simmons, as discussed with representatives of
Simmons;
|
|
·
|
a
comparison of certain financial information for Landmark with similar institutions for
which publicly available information is available;
|
|
·
|
the
financial terms of certain recent business combinations in the commercial banking industry,
to the extent publicly available;
|
|
·
|
an
analysis of the relative contribution that Landmark and Simmons will make to the combined
company;
|
|
·
|
an
estimated range of the intrinsic value of Landmark based on internal financial projections
for Landmark as provided by Landmark;
|
|
·
|
the
estimated pro forma financial impact of the Landmark merger, based on assumptions relating
to transaction expenses, acquisition accounting adjustments, and cost savings as communicated
to Olsen Palmer by representatives of Simmons;
|
|
·
|
the
current market environment generally and the banking industry in particular; and
|
|
·
|
such
other information, financial studies, analyses and investigations and financial, economic
and market criteria as Olsen Palmer considered relevant.
|
Olsen Palmer also discussed
with certain members of senior management of Landmark and its representatives the business, financial condition, results of operations
and prospects of Landmark. Olsen Palmer held similar discussions with representatives of Simmons regarding the business, financial
condition, results of operations, and prospects of Simmons.
The Olsen Palmer
opinion is necessarily based on financial, economic, market and other conditions as in effect on, and the information made available
to it as of June 4, 2021. Events occurring after June 4, 2021 could materially affect the Olsen Palmer opinion. Olsen Palmer has
not undertaken to update, revise, reaffirm or withdraw its opinion or otherwise comment upon events occurring after June 4, 2021.
Several analytical
methodologies have been employed and no one method of analysis should be regarded as critical to the overall conclusion reached
by Olsen Palmer. Each analytical technique has inherent strengths
and weaknesses, and the nature of the available information
may further affect the value of particular techniques. The overall conclusions Olsen Palmer reached are based on all the analysis
and factors presented, taken as a whole, and also on application of Olsen Palmer’s own experience and judgment. Such conclusions
may involve significant elements of subjective judgment and qualitative analysis. Olsen Palmer therefore gives no opinion as to
the value or merit standing alone of any one or more parts of the analyses.
The following summarizes
the material financial analyses that were considered by Olsen Palmer in rendering its opinion. The summary below is not a complete description
of the analyses underlying the Olsen Palmer opinion or the presentation made by Olsen Palmer to the Landmark board of directors,
but is a summary of all material analyses performed and presented by Olsen Palmer. No company or transaction used in the analyses described
below is identical or directly comparable to Landmark, Simmons, or the contemplated merger.
Summary
of Financial Terms of Landmark Merger Agreement. The financial terms of the Landmark merger agreement provide that Landmark
shareholders shall be entitled to receive 4,500,000 shares of Simmons common stock and $7,000,000 in cash. Based on Simmons’s
closing price on June 3, 2021 of $30.86, the implied deal value per fully diluted share equaled $6.50 and the aggregate transaction
value approximated $145.9 million. Olsen Palmer calculated that the aggregate transaction value of $145.9 million represented:
|
·
|
143
percent of Landmark’s March 31, 2021 tangible book value;
|
|
·
|
14.0
times Landmark’s March 31, 2021 last twelve months earnings;
|
|
·
|
10.9
times Landmark’s March 31, 2021 last twelve months earnings plus cost savings;
|
|
·
|
14.5
percent of Landmark’s March 31, 2021 total assets; and
|
|
·
|
7.0
percent premium to Landmark’s March 31, 2021 core deposits.
|
Simmons
Selected Companies Analysis. As part of its analysis, Olsen Palmer reviewed publicly available information to compare
selected financial and market trading information for Simmons and a group of eight financial institutions which (i) were banks
with common stock listed on the Nasdaq or the New York Stock Exchange, or NYSE; (ii) were headquartered in the United States;
(iii) had total assets as of March 31, 2021 between $17.5 and $25.0 billion; (iv) had return on average assets over the twelve
months ended March 31, 2021 between 0.75% and 1.25%; and (v) had nonperforming assets as a percentage of total assets as of March
31, 2021 of less than 1.0%. These eight financial institutions were as follows:
|
·
|
Atlantic Union Bankshares Corporation
|
|
·
|
First Interstate BancSystem,
Inc.
|
|
·
|
Bank of Hawaii Corporation
|
|
·
|
Heartland Financial USA, Inc.
|
|
·
|
Customers Bancorp, Inc.
|
|
·
|
United Community Banks, Inc.
|
|
·
|
First Hawaiian, Inc.
|
|
·
|
Washington Federal, Inc.
|
|
|
|
|
|
|
Olsen Palmer
noted the following selected financial measures, in each case as of and for the relevant period ended March 31, 2021:
|
|
Total Assets
($ billions)
|
|
|
LTM Return on
Average Assets
|
|
|
Nonperforming Assets
to Total Assets
|
|
Median
|
|
$
|
19.2
|
|
|
|
1.01
|
%
|
|
|
0.37
|
%
|
Mean
|
|
$
|
19.9
|
|
|
|
1.00
|
%
|
|
|
0.39
|
%
|
Low
|
|
$
|
18.2
|
|
|
|
0.82
|
%
|
|
|
0.21
|
%
|
High
|
|
$
|
23.5
|
|
|
|
1.23
|
%
|
|
|
0.64
|
%
|
Simmons
|
|
$
|
23.3
|
|
|
|
1.11
|
%
|
|
|
0.56
|
%
|
Olsen Palmer
analyzed various financial multiples for each company as calculated by S&P Global Market Intelligence, based on trading prices
as of June 3, 2021 and financial metrics for the relevant period ended March 31, 2021, including trading price per share to last
twelve months’ earnings per share, trading price per share to tangible common equity per share, trading price per share
to total assets, and the core deposit premium implied by the market capitalization. Olsen Palmer reviewed the mean, median, high,
and low values for each metric of the selected companies. The results of the selected companies analysis are summarized below:
|
|
Price to LTM
Earnings per Share
|
|
|
Price to Tangible
Common Equity
per Share
|
|
|
Price to
Total Assets
|
|
|
Core Deposit
Premium
|
|
Median
|
|
|
16.1
|
x
|
|
|
199.2
|
%
|
|
|
15.8
|
%
|
|
|
5.4
|
%
|
Mean
|
|
|
15.3
|
x
|
|
|
195.2
|
%
|
|
|
14.0
|
%
|
|
|
6.4
|
%
|
Low
|
|
|
8.5
|
x
|
|
|
134.0
|
%
|
|
|
7.0
|
%
|
|
|
2.8
|
%
|
High
|
|
|
19.8
|
x
|
|
|
270.0
|
%
|
|
|
16.3
|
%
|
|
|
11.0
|
%
|
Simmons
|
|
|
13.7
|
x
|
|
|
191.3
|
%
|
|
|
14.3
|
%
|
|
|
10.0
|
%
|
Landmark
Selected Companies Analysis. Olsen Palmer analyzed the relative valuation multiples as calculated by S&P Global Market
Intelligence of 15 publicly-traded banks which (i) were banks with common stock listed on the Nasdaq or NYSE; (ii) were headquartered
in the U.S.; (iii) had total assets as of March 31, 2021 between $500 million and $1.5 billion; (iv) had a return on average assets over
the twelve months ended March 31, 2021 between 0.75% to 1.25%; and (v) had nonperforming assets as a percentage of total assets as of
March 31, 2021 less than 1.0%. Merger targets were excluded from the selected companies. These 15 financial institutions were as follows:
|
·
|
Auburn National Bancorporation,
Inc.
|
|
·
|
IF Bancorp, Inc.
|
|
·
|
Community West Bancshares
|
|
·
|
Limestone Bancorp, Inc.
|
|
·
|
Cortland Bancorp
|
|
·
|
Ohio Valley Banc Corp.
|
|
·
|
Emclaire Financial Corp
|
|
·
|
OP Bancorp
|
|
·
|
First Capital, Inc.
|
|
·
|
Richmond Mutual Bancorporation, Inc.
|
|
·
|
First Community Corporation
|
|
·
|
Salisbury Bancorp, Inc.
|
|
·
|
First National Corporation
|
|
·
|
Virginia National Bankshares Corporation
|
|
·
|
Home Federal Bancorp, Inc. of Louisiana
|
|
|
|
Olsen Palmer
noted the following selected financial measures, in each case as of and for the relevant period ended March 31, 2021:
|
|
Total
Assets
($ millions)
|
|
|
LTM Return on
Average Assets
|
|
|
Nonperforming
Assets
to Total Assets
|
|
Median
|
|
$
|
1,056
|
|
|
|
0.97
|
%
|
|
|
0.48
|
%
|
Mean
|
|
$
|
1,084
|
|
|
|
0.97
|
%
|
|
|
0.46
|
%
|
Low
|
|
$
|
563
|
|
|
|
0.76
|
%
|
|
|
0.08
|
%
|
High
|
|
$
|
1,492
|
|
|
|
1.21
|
%
|
|
|
0.99
|
%
|
Landmark
|
|
$
|
1,007
|
|
|
|
1.04
|
%
|
|
|
0.66
|
%
|
Olsen Palmer
analyzed various financial multiples for each company as calculated by S&P Global Market Intelligence, based on trading prices
as of June 3, 2021 and financial metrics for the relevant period ended March 31, 2021, including trading price per share to last
twelve months’ earnings per share, trading price per share to tangible common equity per share, trading price per share
to total assets, and the core deposit premium implied by the market capitalization. Olsen Palmer reviewed the mean, median, high,
low, 40th percentile, and 60th percentile values for each metric of the selected companies. The results of the selected companies
analysis are summarized below:
|
|
Price to LTM
Earnings per Share
|
|
|
Price to Tangible
Common Equity
per Share
|
|
|
Price to
Total Assets
|
|
|
Core Deposit
Premium
Implied by
Market
Capitalization
|
|
Median
|
|
|
11.1
|
x
|
|
|
114.0
|
%
|
|
|
10.3
|
%
|
|
|
1.5
|
%
|
Mean
|
|
|
12.0
|
x
|
|
|
115.3
|
%
|
|
|
11.0
|
%
|
|
|
2.3
|
%
|
Low
|
|
|
8.8
|
x
|
|
|
86.3
|
%
|
|
|
7.4
|
%
|
|
|
-3.0
|
%
|
High
|
|
|
17.9
|
x
|
|
|
148.9
|
%
|
|
|
16.5
|
%
|
|
|
13.1
|
%
|
40th Percentile
|
|
|
11.0
|
x
|
|
|
112.7
|
%
|
|
|
9.8
|
%
|
|
|
1.4
|
%
|
60th Percentile
|
|
|
11.7
|
x
|
|
|
117.4
|
%
|
|
|
10.3
|
%
|
|
|
1.9
|
%
|
Landmark
Selected Transactions Analysis. Olsen Palmer analyzed publicly available information relating to 11 acquisitions of banks that
satisfied the following selected search criteria: transactions (i) which were announced between January 1, 2020 and June 4, 2021; (ii)
where targets were headquartered in the U.S.; (iii) where targets had total assets between $550 million and $1.5 billion; (iv) where
targets had a return on average assets over the twelve months prior to the transaction announcement between 0.50% and 1.50%; and (v)
where targets had nonperforming assets as a percentage of total assets as of March 31, 2021 less than 1.50%. The selected transactions
consisted of the following (buyer / seller):
|
·
|
United Community Banks, Inc./Aquesta
Financial Holdings, Inc.
|
|
·
|
BancorpSouth Bank/National
United Bancshares, Inc.
|
|
·
|
Equity Bancshares, Inc./American State
Bancshares, Inc.
|
|
·
|
First Mid Bancshares, Inc./LINCO Bancshares,
Inc.
|
|
·
|
Bank of Marin Bancorp/American River Bankshares
|
|
·
|
Dollar Mutual Bancorp/Standard AVB Financial
Corp.
|
|
·
|
Shore Bancshares, Inc./Severn Bancorp,
Inc.
|
|
·
|
Hanover Bancorp Inc./Savoy Bank
|
|
·
|
Stock Yards Bancorp, Inc./Kentucky Bancshares,
Inc.
|
|
·
|
Enterprise Financial Services Corp/Seacoast
Commerce Banc Holdings
|
|
·
|
First Busey Corporation/Cummins-American
Corp.
|
|
|
|
Olsen Palmer
noted the following selected financial measures of the targets, in each case as of prior to the transaction announcement and for
Landmark as of March 31, 2021:
|
|
Total Assets
($ millions)
|
|
|
LTM Return on
Average Assets
|
|
|
Nonperforming
Assets to
Total Assets
|
|
Median
|
|
$
|
953
|
|
|
|
0.91
|
%
|
|
|
0.76
|
%
|
Mean
|
|
$
|
984
|
|
|
|
0.93
|
%
|
|
|
0.73
|
%
|
Low
|
|
$
|
597
|
|
|
|
0.58
|
%
|
|
|
0.15
|
%
|
High
|
|
$
|
1,395
|
|
|
|
1.31
|
%
|
|
|
1.26
|
%
|
Landmark
|
|
$
|
1,007
|
|
|
|
1.04
|
%
|
|
|
0.66
|
%
|
Olsen Palmer
analyzed various financial multiples for each transaction as calculated by S&P Global Market Intelligence including deal value
to last twelve months’ earnings plus cost savings prior to transaction announcement, deal value to tangible common equity,
deal value to total assets, and the core deposit premium implied by the deal value. Olsen Palmer reviewed the mean, median, high,
low, 40th percentile, and 60th percentile values for each such metric of the acquired institution in each
such transaction. The results of the selected transactions analysis are summarized below:
|
|
Deal Value to LTM
Earnings Plus
Cost Savings
|
|
|
Deal Value to
Tangible Common
Equity
|
|
|
Deal Value to
Total Assets
|
|
|
Core Deposit
Premium Implied
by the Deal Value
|
|
Median
|
|
|
8.4
|
x
|
|
|
149.2
|
%
|
|
|
15.2
|
%
|
|
|
1.5
|
%
|
Mean
|
|
|
9.4
|
x
|
|
|
148.3
|
%
|
|
|
13.6
|
%
|
|
|
3.5
|
%
|
Low
|
|
|
5.7
|
x
|
|
|
106.6
|
%
|
|
|
9.8
|
%
|
|
|
1.1
|
%
|
High
|
|
|
12.3
|
x
|
|
|
214.3
|
%
|
|
|
17.2
|
%
|
|
|
7.0
|
%
|
40th Percentile
|
|
|
8.2
|
x
|
|
|
139.9
|
%
|
|
|
12.4
|
%
|
|
|
1.4
|
%
|
60th Percentile
|
|
|
11.0
|
x
|
|
|
156.3
|
%
|
|
|
15.3
|
%
|
|
|
3.4
|
%
|
Relative
Contribution Analysis. Olsen Palmer analyzed the relative standalone contribution of Simmons and Landmark to various pro
forma balance sheet and income statement items and the combined market capitalization of the combined entity. This analysis did
not include purchase accounting adjustments or cost savings. To perform this analysis, Olsen Palmer used (i) balance sheet and
income statement data for Simmons and Landmark as of or for the 12-month period ended March 31, 2021 and (ii) 2019 and 2020 net
income. The results of Olsen Palmer’s analysis are set forth in the following table:
|
|
Simmons
First National
Corporation
% of Total
|
|
|
Landmark
% of Total
|
|
Balance Sheet:
|
|
|
|
|
|
|
|
|
Total Assets
|
|
|
95.9
|
%
|
|
|
4.1
|
%
|
Gross Loans Held for Investment
|
|
|
93.9
|
%
|
|
|
6.1
|
%
|
Deposits
|
|
|
95.6
|
%
|
|
|
4.4
|
%
|
Tangible Common Equity
|
|
|
94.5
|
%
|
|
|
5.5
|
%
|
Total Equity
|
|
|
96.6
|
%
|
|
|
3.4
|
%
|
Income Statement:
|
|
|
|
|
|
|
|
|
Net Income – 2019
|
|
|
96.3
|
%
|
|
|
3.7
|
%
|
Net Income – 2020
|
|
|
96.2
|
%
|
|
|
3.8
|
%
|
Net Income – LTM
|
|
|
95.9
|
%
|
|
|
4.1
|
%
|
Landmark
Discounted Cash Flow Analysis. Olsen Palmer analyzed the discounted present value of Landmark projected free cash flows for the
years ending December 31, 2021 through December 31, 2026. Olsen Palmer estimated cash flows based on dividendable common equity, defined
as Tier 1 Capital in excess of a minimum Tier 1 Capital ratio of 9.0%. Olsen Palmer applied a range of price to earnings multiples of
10.3x to 12.3x, based on review of price/earnings multiples for relevant indices of publicly traded bank stocks, to Landmark estimated
calendar year 2026 net income to derive a terminal value.
The projected
cash flows and terminal values were discounted using an estimated cost of equity capital for Landmark derived by the Duff &
Phelps discount rate build-up method consisting of the sum of a risk-free rate, equity risk premium, size premium, and industry
risk premium. Olsen Palmer applied a range of discount rates of 13.5% to 15.5%.
The calculations
resulted in a rage of implied values of $138.3 million to $166.4 million.
The discounted
cash flow analysis is a widely used valuation methodology that relies on numerous assumptions, including asset growth rates, earnings
growth rates, discount rates, and terminal multiples, and the results of such methodology are highly dependent on these assumptions.
The financial forecasts from 2021 – 2026 were provided by Landmark management.
Financial Impact
Analysis. Olsen Palmer performed a pro forma financial impact analysis that combined projected income statement and balance sheet
information of Simmons and Landmark. Using (i) publicly available consensus “street estimates” for Simmons and assumed long-term
dividends, and growth rates for Simmons as provided by its representatives, (ii) pro forma assumptions regarding
the impact of the Landmark merger, based on assumptions relating to transaction expenses, acquisition accounting adjustments, and cost
savings as communicated to Olsen Palmer by representatives of Simmons, and (iii) financial forecasts and projections relating
to the net income and tangible common equity of Landmark provided by Landmark management, Olsen Palmer analyzed the potential financial
impact of the Landmark merger on certain projected financial results of Simmons. This analysis indicated that the Landmark merger is
expected to be accretive to Simmons’s estimated earnings per share beginning in 2022. The analysis also indicated that the Landmark
merger is expected to be accretive to tangible book value per share for Simmons and that Simmons would maintain capital ratios in excess
of those required for Simmons to be considered well-capitalized under existing regulations. For all of the above analyses, the actual
results achieved by Landmark and Simmons prior to and following the Landmark merger will vary from the projected results, and the variations
may be material.
Olsen Palmer’s
Compensation and Other Relationships with Landmark and Simmons. No limitations were imposed by the Landmark board of directors
on Olsen Palmer with respect to the investigations made or procedures followed in rendering its opinion. Neither Olsen Palmer
nor the individuals involved in providing the Olsen Palmer opinion has any present or contemplated future ownership interest in
Landmark. Olsen Palmer is acting as Landmark’s financial advisor in connection with the Landmark merger and will receive
a cash fee equal to 1.50% of the aggregate Landmark merger consideration, $150,000 of which became payable to Olsen Palmer with
rendering of its opinion and the balance of which is contingent upon the closing of the Landmark merger. Landmark has also agreed
to indemnify Olsen Palmer against certain claims and liabilities arising out of Olsen Palmer’s engagement and to reimburse
Olsen Palmer for certain of its out-of-pocket expenses incurred in connection with Olsen Palmer’s engagement.
Olsen Palmer
has not provided investment banking and financial advisory services to Landmark or Simmons during the two-year period prior to
June 4, 2021, except with respect to the Landmark merger. Olsen Palmer may provide investment banking, financial advisory and
other financial services to Landmark and/or Simmons in the future, for which Olsen Palmer may receive compensation.
Certain Prospective Financial
Information
Simmons and Landmark
do not as a matter of course make public projections as to future performance, revenues, earnings or other financial results due
to, among other reasons, the inherent uncertainty of the underlying assumptions and estimates of any such projections. However,
Landmark is including in this proxy statement/prospectus certain unaudited prospective financial information that was used by
Olsen Palmer for the purpose of Olsen Palmer performing its financial analysis in connection with rendering its opinion to the
Landmark board of directors, as described in the section entitled “—Opinion of Landmark’s Financial Advisor.”
The unaudited prospective financial information of Landmark included in this proxy statement/prospectus, which we refer to as
the Landmark prospective information, was made available by Landmark to Olsen Palmer. The Landmark prospective information was
prepared solely by Landmark management and was not prepared, provided to, reviewed or approved by Simmons management or the Simmons
board of directors. The unaudited prospective financial information of Simmons included in this proxy statement/prospectus, which
we refer to as the Simmons prospective information (and, together with the Landmark prospective information, the prospective information)
was not prepared, provided to, reviewed or approved by Landmark management, the Landmark board of directors, Simmons management
or the Simmons board of directors. By inclusion of this prospective information, the respective managements and boards of directors
of Landmark and Simmons, and Landmark’s financial advisor, assume no responsibility for the prospective information. The
inclusion of this prospective information should not be regarded as an indication that any of Landmark, Simmons, Olsen Palmer,
their
respective representatives or any other recipient of this prospective
information considered, or now considers, it to be necessarily predictive of actual future results, or that it should be construed
as financial guidance, and it should not be relied on as such.
The Landmark prospective
information was prepared solely by Landmark management for internal use, and certain of the assumptions related to the impact of the
merger were discussed between representatives of Simmons, Landmark and Olsen Palmer. The prospective information is subjective in
many respects. While presented with numeric specificity, the prospective information reflects numerous estimates and assumptions made
solely by Landmark management with respect to business, economic, market, competition, regulatory and financial conditions and matters
specific to Landmark’s and Simmons’ respective businesses, all of which are difficult to predict and many of which are beyond
Landmark’s and Simmons’ control. The prospective information reflects both assumptions solely by Landmark management as to
certain business decisions that are subject to change and, in many respects, subjective judgment solely by Landmark management, and thus
is susceptible to multiple interpretations and periodic revisions based on actual experience and business developments. No assurance
can be given that the prospective information and the underlying estimates and assumptions will be realized. Actual results may differ
materially from those set forth below, and important factors that may affect actual results and cause the prospective information to
be inaccurate include, but are not limited to, risks and uncertainties relating to Landmark’s and Simmons’ respective businesses,
industry performance, general business and economic conditions, competition, customer requirements and adverse changes in applicable
laws, regulations or rules. For other factors that could cause actual results to differ, see the sections entitled “Risk Factors”
and “Cautionary Statement Regarding Forward-Looking Statements” in this proxy statement/prospectus and in Simmons’
Annual Report on Form 10-K for the fiscal year ended December 31, 2020, as well as the other reports filed by Simmons with the SEC.
The prospective
information was not prepared by Landmark management with a view toward public disclosure, nor was it prepared with a view toward
compliance with GAAP, the prevailing practices in the banking industry, published guidelines of the SEC or the guidelines established
by the American Institute of Certified Public Accountants for preparation and presentation of prospective financial information.
In addition, the prospective information requires significant estimates and assumptions that make it inherently less comparable
to the similarly titled GAAP measures in Landmark’s and Simmons’ respective historical GAAP financial statements.
Neither Landmark’s nor Simmons’ independent public accountants nor any other independent accountants, have compiled,
examined or performed any procedures with respect to the prospective information contained herein, nor have they expressed any
opinion or any other form of assurance on such information or its achievability.
Furthermore,
the prospective information does not take into account any circumstances or events occurring after the date it was prepared. No
assurance can be given that, had the prospective information been prepared as of the date of this proxy statement/prospectus,
similar estimates and assumptions would be used. Neither Landmark nor Simmons intends to, and expressly disclaims any obligation
to, make publicly available any update or other revision to the prospective information to reflect circumstances existing since
their preparation or to reflect the occurrence of unanticipated events, even in the event that any or all of the underlying assumptions
are shown to be in error, or to reflect changes in general economic or industry conditions. The prospective information does not
take into account the possible financial and other effects on Landmark or Simmons of the Landmark merger and does not attempt
to predict or suggest future results of the surviving company. The prospective information does not give effect to the Landmark
merger, including the impact of negotiating or executing the Landmark merger agreement, the expenses that may be incurred in connection
with consummating the Landmark merger, the potential synergies that may be achieved by the surviving company as a result of the
Landmark merger, the effect on Landmark or Simmons of any business or strategic decision or action that has been or will be taken
as a result of the Landmark merger agreement having been executed, or the effect of any business or strategic decisions or actions
that would likely have been taken if the Landmark merger agreement had not been executed, but which were instead altered, accelerated,
postponed or not taken in anticipation of
the Landmark merger. Further, the Landmark prospective information
does not take into account the effect on Landmark of any possible failure of the Landmark merger to occur.
None of Landmark,
Simmons, Olsen Palmer, or their respective affiliates, officers, directors, advisors or other representatives has made, makes
or is authorized in the future to make any representation to any shareholder of Landmark or Simmons or other persons regarding
Landmark’s or Simmons’ ultimate performance compared to the information contained in the prospective information or
that the projected results will be achieved. The summary of the prospective information included below is not being included to
influence your decision whether to vote for the Landmark merger proposal, but is being provided solely because it was used by
Olsen Palmer in connection with rendering the Olsen Palmer opinion.
In light of the
foregoing, and considering that the Landmark special meeting will be held many months after the prospective information was prepared,
as well as the uncertainties inherent in any forecasted information, Landmark shareholders are cautioned not to place unwarranted
reliance on such information, and all Landmark shareholders are urged to review the other information contained elsewhere in this
proxy statement/prospectus for a description of Simmons’ and Landmark’s respective businesses as well as Simmons’
most recent SEC filings for a description of Simmons’ reported financial results. See the section entitled “Where
You Can Find More Information.”
The following
tables present the Landmark prospective information, prepared solely by Landmark management, and the Simmons prospective information,
in each case, approved for Olsen Palmer’s use by the Landmark board of directors for Olsen Palmer’s financial analysis
in connection with rendering the Olsen Palmer opinion to the Landmark board of directors, as described in the section entitled
“—Opinion of Landmark’s Financial Advisor.”
Landmark
Prospective Information
|
|
As of or For the Years Ended December
31,
|
|
|
2021
|
|
2022
|
|
2023
|
|
2024
|
|
2025
|
|
2026
|
Landmark Net Income ($ millions)
|
|
$
|
11.3
|
|
|
$
|
12.6
|
|
|
$
|
14.0
|
|
|
$
|
15.3
|
|
|
$
|
16.6
|
|
|
$
|
18.0
|
|
Landmark Total Assets ($ millions)
|
|
$
|
1,012
|
|
|
$
|
1,062
|
|
|
$
|
1,112
|
|
|
$
|
1,162
|
|
|
$
|
1,212
|
|
|
$
|
1,262
|
|
Simmons
Prospective Information
|
|
Assumed Long-Term Growth Rates for
Simmons
|
Earnings (%)
|
|
|
7
|
%
|
Total Assets (%)
|
|
|
7
|
%
|
Simmons’ Reasons
for the Landmark Merger
In reaching its
decision to adopt and approve the Landmark merger agreement, the Landmark merger and the other transactions contemplated by the
Landmark merger agreement, the Simmons board of directors evaluated the Landmark merger agreement and the Landmark merger in consultation
with Simmons’ management, as well as Simmons’ financial and legal advisors, and considered a number of factors, including,
without limitation, the following material factors, which are not presented in order of priority:
|
·
|
the
anticipation that the Landmark merger is expected to enhance the scale and expand the
footprint of the combined company in the attractive Tennessee banking market;
|
|
·
|
each
of Simmons’, Landmark’s and the combined company’s business, operations,
financial condition, asset quality, earnings and prospects;
|
|
·
|
the
fact that Landmark’s business and operations complement those of Simmons and that
the Landmark merger would result in a combined company with a diversified revenue stream
from diversified geographic markets, a well-balanced portfolio and an attractive funding
base;
|
|
·
|
its
existing knowledge of Landmark’s business and its review and discussions with Simmons’
management concerning the additional due diligence examination of Landmark conducted
in connection with the Landmark merger;
|
|
·
|
the
perceived complementary nature of the cultures and the shared core technology operating
systems of the two companies, which Simmons’ management believes should facilitate
integration and implementation of the Landmark merger;
|
|
·
|
the
complementary branch networks of Simmons and Landmark;
|
|
·
|
Landmark’s
market position within the Tennessee banking market, particularly Landmark’s market
share in the Memphis market;
|
|
·
|
its
understanding of the current and prospective environment in which Simmons and Landmark
operate, including national, regional and local economic conditions, the competitive
environment for financial institutions generally and the likely effect of these factors
on Simmons both with and without the Landmark merger;
|
|
·
|
the
market for alternative merger or acquisition transactions in the financial services industry
and the likelihood and timing of other material strategic transactions;
|
|
·
|
the
terms of the Landmark merger agreement, including the Landmark merger consideration,
expected tax treatment, deal protection and termination fee provisions, which the Simmons
board of directors reviewed with Simmons’ management and Simmons’ financial
and legal advisors;
|
|
·
|
Simmons’
successful operating and acquisition track record, specifically Simmons’ history
of efficiently closing and integrating acquisitions;
|
|
·
|
its
belief that the Landmark merger is likely to provide substantial value to Simmons shareholders;
|
|
·
|
the
potential risks associated with achieving anticipated cost synergies and savings and
successfully integrating Landmark’s business, operations and workforce with those
of Simmons;
|
|
·
|
the
potential risk of diverting management attention and resources from the operation of
Simmons’ business and towards the completion of the Landmark merger;
|
|
·
|
certain
anticipated Landmark merger-related costs;
|
|
·
|
the
regulatory and other approvals required in connection with the Landmark merger and the
expectation that such regulatory approvals will be received in a timely manner and without
the imposition of unacceptable conditions, including a burdensome condition;
|
|
·
|
the
potential risk of losing other acquisition opportunities while Simmons remains focused
on completing the Landmark merger; and
|
|
·
|
the
nature and amount of payments and other benefits to be received by Landmark management
in connection with the Landmark merger.
|
The foregoing
discussion of the information and factors considered by the Simmons board of directors is not intended to be exhaustive, but,
rather, includes the material factors considered by the Simmons board of directors. In reaching its decision to adopt and approve
the Landmark merger agreement, the Landmark merger and the other transactions contemplated by the Landmark merger agreement, the
Simmons board of directors did not quantify or assign any relative weights to the factors considered, and individual directors
may have given different weights to different factors. The Simmons board of directors considered all these factors as a whole,
and overall considered the factors to be favorable to, and to support, its determination to adopt and approve the Landmark merger
agreement and the transactions contemplated thereby, including the Landmark merger.
This explanation
of the Simmons board of directors’ reasoning and all other information presented in this section is forward-looking in nature
and, therefore, should be read in light of the factors discussed in the section entitled “Cautionary Statement Regarding
Forward-Looking Statements.”
Interests of Landmark’s
Directors and Executive Officers in the Landmark Merger
In considering
the recommendation of the Landmark board of directors that Landmark shareholders vote “FOR” the Landmark merger
proposal, Landmark shareholders should be aware that some of Landmark’s executive officers and directors have interests
in the Landmark merger, which may be considered to be different from, or in addition to, the interests of the Landmark shareholders
generally. These interests are described below. The Landmark board of directors was aware of these interests and considered them,
among other matters, in reaching its decision to approve the Landmark merger agreement, the Landmark merger and the other transactions
contemplated by the Landmark merger agreement and to recommend that Landmark shareholders vote “FOR” the Landmark
merger proposal.
Employment
Agreements
Landmark has entered
into employment agreements with the following executives which provide for severance obligations upon a termination of employment in
connection with a change in control transaction: Charles Dickey, James Farrell and Mike Russell. These severance benefits provide for
a severance payment equal to (1) 2.99 times the executive’s base salary, plus (2) an amount equal to the greater of the bonus paid
to the executive for the previous year, if any, or the bonus that would have been paid to executive for the year in which the termination
occurred, based on an annualized basis and in good faith, and (3) any unpaid vacation pay, expense reimbursements and other amounts due
to the executive but not yet paid. In addition, for 36 months following the termination of employment, the executive and the executive’s
spouse and dependents shall be eligible for a continuation of employee benefits or alternatively, if continuation of such benefits is
not permitted under applicable law or regulations, cash in lieu of such benefits continuation. The employment agreements with each of
Messrs. Dickey, Farrell, and Russell provide that if payments would constitute excess parachute payments within the meaning of Section
280G of the Code, payments will be reduced to the extent necessary in order to prevent payments from constituting an excess parachute
payment. Whether any of the individual’s payments will be subject to reduction under this provision will depend on a number of
factors, including each individual’s post-closing arrangements and compensation with Simmons. As of the date of this proxy statement/prospectus,
Mr. Farrell has been offered employment by Simmons but Simmons intends that Mr. Farrell will remain eligible for the severance benefits
described above even if he accepts the offered employment.
Stock Option
Plan Acceleration
Landmark’s
Non-Qualified Stock Option Plan provides that any unvested options automatically vest upon the occurrence of a change in control
transaction. At the Landmark effective time, each Landmark stock option, whether vested or unvested, outstanding immediately prior
to the Landmark effective time, will be canceled and converted into the right to receive from Simmons a cash payment equal to
the difference, if positive, between (1) the fully diluted per share value and (2) the exercise price of such Landmark stock option.
Indemnification
The Landmark
merger agreement provides that, for a period of six years after the Landmark effective time, Simmons will indemnify, defend and
hold harmless each of the present and former directors or officers of Landmark against all liabilities arising out of actions
or omissions arising out of such person’s services as director or officers of Landmark, or at Landmark’s request,
of another corporation, partnership, joint venture, trust or other enterprise, occurring at or prior to the effective time to
the fullest extent permitted under the Landmark charter and the Landmark bylaws in effect on the date of the Landmark merger agreement
(subject to applicable law), including provisions relating to the advancement of expenses incurred in the defense of any litigation,
provided that, in the case of an advancement of expenses, any indemnified party to whom expenses are advanced provides a written
undertaking to repay such advances if it is ultimately determined that such indemnified party is not entitled to indemnification.
THE
TRIUMPH MERGER
The following
discussion contains material information regarding the Triumph merger. The discussion is subject to, and qualified in its entirety
by reference to, the Triumph merger agreement, which is attached to this proxy statement/prospectus as Annex B and is incorporated
by reference into this proxy statement/prospectus. The following is not intended to provide factual information about the parties
or any of their respective subsidiaries or affiliates. This discussion does not purport to be complete and may not contain all
of the information about the Triumph merger that is important to you. We urge you to read the Triumph merger agreement carefully
and in its entirety, as it is the legal document governing the Triumph merger.
Terms of the Triumph
Merger
Each of the Simmons
board of directors and the Triumph board of directors approved the Triumph merger agreement. The Triumph merger agreement provides
that, among other things, Triumph will merge with and into Simmons, with Simmons as the surviving corporation in the merger. Immediately
following the Triumph merger, Triumph Bank will merge with and into Simmons Bank, with Simmons Bank as the surviving bank.
Based on the assumptions
set forth below, at the Triumph effective time, each share of Triumph common stock that is issued and outstanding immediately prior to
the Triumph effective time, excluding certain specified shares, will be converted into the right to receive, subject to possible adjustment,
the Triumph merger consideration. In the aggregate, Simmons expects to issue approximately 4,164,839 shares of Simmons common
stock and pay approximately $ 2,645,937.83 (minus the cash payment for outstanding Triumph stock options) to Triumph shareholders
upon completion of the Triumph merger, subject to certain conditions and potential adjustments under the Triumph merger agreement. The
Triumph merger consideration is based on the assumption that (i) 4,586,300 shares of Triumph common stock are issued and outstanding
and (ii) 148,763 shares of Triumph common stock are subject to outstanding Triumph stock options with a weighted average exercise
price of $ 18.67 , in each case, immediately prior to the Triumph effective time. In addition, we have assumed that the Triumph/Simmons
average closing price is equal to $ 27.49 , which was the closing sales price of Simmons common stock on the last practicable trading
day prior to printing this proxy statement/prospectus.
Simmons will
not issue any fractional shares of Simmons common stock in the Triumph merger. Instead, a Triumph shareholder who would otherwise
be entitled to a fractional share of Simmons common stock upon completion of the Triumph merger will receive, in lieu thereof,
an amount in cash, rounded up to the nearest whole cent (without interest), determined by multiplying (i) the fraction of a share
(rounded to the nearest thousandth when expressed in decimal form) of Simmons common stock that such shareholder would otherwise
be entitled to receive by (ii) the Triumph/Simmons average closing price.
Triumph shareholders
are being asked to approve the Triumph merger agreement, including the Triumph merger and all transactions contemplated thereby.
See the section entitled “The Merger Agreements” for additional and more detailed information regarding the legal
documents that govern the Triumph merger, including information about the conditions to consummation of the Triumph merger and
the provisions for terminating or amending the Triumph merger agreement.
Background of the Triumph
Merger
As part of
the ongoing consideration and evaluation of Triumph’s long-term prospects and strategies over the years, the Triumph board
of directors has regularly reviewed and assessed Triumph’s business strategies and objectives, including assessments of
potentially available strategic growth opportunities, as part of Triumph’s efforts to enhance value for its shareholders
and deliver the best possible services to its customers and communities.
The Triumph
board of directors at its offsite retreat held on July 17, 2020, at Shelby Group International, Inc. d/b/a MCR Safety, which is
located in Collierville, Tennessee, discussed possible next steps and growth of Triumph and Triumph Bank. During this Triumph
board of directors’ retreat, business strategies and objectives were discussed as part of the continued effort to increase
shareholder value and to deliver quality services to Triumph’s customers and to enhance the communities in which we live,
work and play. Discussions ensued on the financial services markets in Memphis and Nashville, the regulatory environment, the
economy generally and in these markets, Triumph’s ability to compete attracting talent, its pricing and service to Triumph’s
customers.
The Triumph
board of directors also discussed the benefits and risks to Triumph and its shareholders to continue to build organically through
the opening of new branches or to consider combining with one or more financial institutions. The Triumph board of directors requested
Mr. John A. Bobango of the law firm, Farris Bobango, PLC, Triumph’s counsel, which we refer to as Farris Bobango, and Mr.
William J. Chase, Jr., Triumph’s President and Chief Executive Officer, to review and consider financial institutions to
approach on behalf of Triumph for a discussion regarding potential opportunities. Over the next several days, Mr. Chase and Mr.
Bobango discussed potential financial institutions to consider.
During July
and August of 2020 and in the midst of the COVID-19 pandemic, Mr. Bobango had brief discussions with representatives of two financial
institutions. The conversations were positive; however, after Mr. Chase and Mr. Bobango had discussions with Mr. Hilliard Crews,
chair of the Triumph board of directors, and Mr. Mike McCarver, Triumph’s Executive Vice-President and Chief of Operations
Officer, Mr. Chase and Mr. Bobango delayed further discussions due to the COVID-19 pandemic.
At the meeting
of the Triumph board of directors on November 18, 2020, Mr. Bobango mentioned that now may be a better time to open discussions
with financial institutions and Simmons would be a good candidate. Mr. Crews asked Mr. Bobango to connect with Mr. George Makris,
Jr., Chairman and Chief Executive Officer of Simmons. On November 21, 2020, Mr. Bobango contacted Mr. Makris regarding the potential
opportunity of a business combination with Simmons. Mr. Bobango and Mr. Makris agreed it would be useful to meet in person the
next time Mr. Makris was in Memphis to explore a possible business combination.
Over the following
three months Triumph entered into a mutual non-disclosure agreement with another financial institution, which
resulted in preliminary discussions regarding a merger with Triumph. During this time, Triumph discussed, but did not enter into,
a non-disclosure agreement with one additional financial institution.
On March
5, 2021, Mr. Makris called Mr. Bobango to inquire about Triumph’s interest in discussing a merger between the two companies.
Mr. Bobango suggested Mr. Makris and other representatives of Simmons meet with representatives of Triumph.
On March
6, 2021, Mr. Bobango briefed Messrs. Crews, Chase and McCarver regarding his conversation with Mr. Makris and the opportunity
of exploring a potential transaction with Simmons. Messrs. Crews, Chase and McCarver discussed that a meeting with Mr. Makris
would be the next step and expressed their support for Mr. Bobango to contact Mr. Makris to arrange an in-person meeting between
representatives of Triumph and Simmons to discuss a potential merger in greater detail. Over the next several days, Mr. Crews
communicated with the other members of the Triumph board of directors regarding the initial discussions with Simmons.
On March
12, 2021, Messrs. Bobango, Crews, Chase and McCarver met with a representative of another financial institution to discuss potential
strategic advantages of a merger.
On March
19, 2021, Messrs. Bobango, Crews, Chase and McCarver met with representatives of Simmons, which included Mr. Makris; Robert
Fehlman, who was, at that time, Simmons’ Chief Financial Officer and Chief Operating Officer; and Stephen Massanelli,
Simmons’ Chief Administrative Officer, which meeting was held at the offices of Farris Bobango in Memphis, Tennessee. The
parties discussed the potential strategic advantages of a merger, each company’s philosophy, credit and underwriting, and
the financial and operational benefits
of a combination of the two companies. At the meeting, the Triumph and Simmons representatives expressed
interest in continuing discussions regarding a merger of the two companies. Following this meeting and over the next several days,
Mr. Crews briefed other members of the Triumph board of directors on the discussions with Simmons.
From March
19, 2021 to March 24, 2021, Mr. Crews had informal discussions with the Triumph board of directors to outline the next steps with
Simmons.
On March
24, 2021, at the Triumph board meeting, Mr. Crews discussed the meeting on March 19, 2021 with representatives from Simmons and
the potential strategic advantages of a merger with Simmons. The Triumph board of directors also discussed the March 12, 2021
meeting of Triumph representatives with the other financial institution. After discussing the advantages and disadvantages of
a strategic merger, the Triumph board of directors decided to pursue discussions with Simmons. The board of directors also discussed
engaging Southard Financial to advise and issue a fairness opinion.
On March
26, 2021, Triumph and Simmons executed a customary mutual nondisclosure agreement in order to facilitate more detailed discussions
of a potential business combination and reciprocal due diligence efforts.
On March
29, 2021, Simmons delivered an indication of interest to the Triumph board of directors to acquire Triumph for shares of Simmons
common stock of approximately $132,047,500 in aggregate transaction value and based on the 20-trading day
average closing price of Simmons common stock as of March 29, 2021.
On March
31, 2021, the Triumph board of directors held a special meeting to discuss the meeting with representatives of Simmons, the potential
transaction with Simmons and the indication of interest delivered by Simmons. Mr. Bobango reviewed with the Triumph board of directors
the directors’ fiduciary duties under Tennessee law and then discussed with the Triumph board of directors the terms for
the potential transaction that were being discussed between Simmons and Triumph in the indication of interest. After a lengthy
discussion, the Triumph board of directors expressed its support for continuing to explore the feasibility and potential benefits
of a proposed transaction with Simmons and approved pursing a transaction with Simmons, provided Simmons submitted a revised bid
with a “collar” based on the fluctuating price of the market value of Simmons common stock and a closing date early
in the fourth quarter of 2021. The Triumph board of directors directed Messrs. Crews, Chase, McCarver and Bobango, to continue
their discussions and negotiations with Simmons regarding such a transaction, and if the requested changes were made, authorized
Mr. Crews to execute the revised indication of interest.
On April
1, 2021, Mr. Makris and Mr. Bobango discussed the terms set out in Simmons’ indication of interest and the changes requested
by Triumph. Triumph requested a closing date in early October in the fourth quarter of 2021 and a right to terminate by Triumph
if the price of the Simmons’ stock decreased beyond a certain level. Mr. Makris indicated he would discuss internally at
Simmons.
On April
2, 2021, Simmons submitted a revised indication of interest that contained revisions acceptable to Triumph. The revised indication
of interest was executed and dated by Mr. Crews on behalf of Triumph on April 2, 2021.
On April
10, 2021, Mr. McCarver communicated with its accounting advisor, Reynolds, Bone and Griesbeck, PLC, which we refer to as Reynolds,
to assist with the financial analysis of the Triumph merger.
From April
13, 2021 to June 3, 2021, the parties engaged in mutual due diligence, including through a series of virtual due diligence meetings
and telephone calls between the parties and their respective representatives to discuss relevant topics. Triumph made available
to Simmons documents for their mutual due diligence, including through the use of a virtual data room. Triumph reviewed the public
information available on Simmons and asked follow up questions to representatives of Simmons.
On May 10,
2021, Simmons delivered a first draft of the Triumph merger agreement to Farris Bobango. Between May 10, 2021 and June 1, 2021,
the specific terms of the Triumph merger agreement were negotiated between the representatives of Simmons and Triumph and their
respective outside counsel. During this period the representatives and their legal counsel also negotiated the terms of the Triumph
voting agreements. During this period, Triumph and Simmons exchanged several additional drafts of the Triumph merger agreement
and the related transaction documents, including the Triumph voting agreement. Additionally, during this time, Triumph continued
to confer with Reynolds.
Throughout
the day of June 2, 2021, the Triumph and Simmons management teams, with the assistance of the parties’ legal advisors, continued
to finalize the Triumph merger agreement and Triumph voting agreements.
On June 3,
2021, the Triumph board of directors held a special meeting to review and discuss the potential transaction with Simmons, with
representatives of Farris Bobango, Southard Financial, and Reynolds in attendance. Mr. Bobango updated the Triumph board of directors
on the final negotiations with Simmons relating to the potential transaction and the final terms of the Triumph merger agreement,
including the price terms, representations and warranties, negative covenants and closing conditions. Mr. Bobango then discussed
with Triumph’s directors the terms of the Triumph voting agreements. The directors then asked management and Farris Bobango
questions about the Triumph merger agreement. Following these questions from the Triumph board of directors, Mr. Bobango reviewed
with the directors certain legal considerations, including the directors’ fiduciary duties in connection with their consideration
of a potential transaction with Simmons.
Representatives
of Southard Financial then reviewed and discussed with the Triumph board of directors, among other matters, certain preliminary
financial analyses regarding the two companies and the financial aspects of the proposed transaction. Following the discussion,
representatives of Southard Financial rendered to the Triumph board of directors its firm’s opinion, which was initially
rendered orally and confirmed by a written opinion dated June 4, 2021, to the effect that, as of that date and subject to the
procedures followed, assumptions made, matters considered and qualifications and limitations on the review undertaken as set forth
in its opinion, the Triumph merger consideration was fair, from a financial point of view, to the holders of Triumph common stock
as described in the section entitled “—Opinion of Triumph’s Financial Advisor.” For a description of Southard
Financial’s opinion, please refer to the section entitled “—Opinion of Triumph’s Financial Advisor.”
There were
further discussions, including comments and questions answered by Joseph Callicutt with Reynolds. After these discussions and
considering various factors, including the interests of the Triumph shareholders, customers, employees and communities served
by Triumph, as well as the factors described in the section entitled “—Triumph’s Reasons for the Triumph Merger
and Recommendations of the Triumph Board of Directors,” the Triumph board of directors approved the Triumph merger agreement
and the transactions contemplated thereby and determined that they were advisable and fair to and in the best interests of Triumph
and its shareholders, and recommended that the Triumph shareholders approve and adopt the Triumph merger agreement.
On June 4,
2021, the Simmons board of directors held a meeting to consider the terms of the proposed Triumph merger and Triumph merger agreement.
At the meeting, members of Simmons’ management reported on the status of due diligence and negotiations with Triumph. Also
at the meeting, Simmons’ financial advisor reviewed with the Simmons board of directors financial aspects of the proposed
Triumph merger. At the meeting, Simmons’ internal legal counsel reviewed with the Simmons board of directors its fiduciary
duties and reviewed the key terms of the Triumph merger agreement and related agreements (including the Triumph voting agreements),
as described elsewhere in this proxy statement/prospectus, including a summary of the provisions relating to governance of the
combined company and the provisions relating to employee matters.
After considering
the proposed terms of the Triumph merger agreement, the terms of the Triumph voting agreements, and taking into consideration
the matters discussed during that meeting and prior meetings of the Simmons board of directors, including the factors described
in the section entitled “—Simmons’ Reasons for the Triumph Merger,” the Simmons board of directors determined
that the Triumph merger was consistent with Simmons’ business strategies and in the best interests of Simmons and Simmons
shareholders and the Simmons board of directors voted to approve and adopt the Triumph merger agreement, the Triumph merger and
the other transactions contemplated by the Triumph merger agreement.
Following the board
meetings of Triumph and Simmons, on June 4, 2021, the Triumph merger agreement was signed by Triumph and Simmons and each of the directors
and certain executive officers of Triumph signed the Triumph voting agreements. The transaction was announced in the morning of Monday,
June 7, 2021, in a press release issued by Simmons.
Triumph’s Reasons
for the Triumph Merger and Recommendation of the Triumph Board of Directors
After careful consideration,
at a special meeting held on June 3, 2021, the Triumph board of directors (i) determined that the Triumph merger agreement and the transactions
contemplated thereby, including the Triumph merger, are in the best interests of Triumph, its shareholders and other constituencies,
(ii) declared the Triumph merger agreement advisable and (iii) approved the execution, delivery and performance of the Triumph merger
agreement and the consummation of the transactions contemplated thereby, including the Triumph merger. Accordingly, the Triumph board
of directors unanimously recommends that the Triumph shareholders vote “FOR” the Triumph merger proposal and “FOR”
the Triumph adjournment proposal.
In
reaching its decision to approve the Triumph merger agreement and the transactions contemplated thereby, including the Triumph
merger, and to recommend that the Triumph shareholders approve the Triumph merger agreement, the Triumph board of directors evaluated
the Triumph merger agreement, the Triumph merger and the other transactions contemplated by the Triumph merger agreement in consultation
with Triumph’s management, as well as with Triumph’s financial and legal advisors, and considered a number of factors,
including the following:
|
·
|
each
of Triumph’s and Simmons’ business, operations, financial condition, stock
performance, asset quality, earnings and prospects. In reviewing these factors, including
the information obtained through due diligence, the Triumph board of directors considered
that Simmons’ and Triumph’s respective business, operations and risk profile
complement each other and that the companies’ separate earnings and prospects,
and the synergies and scale potentially available in the proposed transaction, create
the opportunity for the combined company to leverage complementary and diversified revenue
streams and to have superior future earnings and prospects compared to Triumph’s
earnings and prospects on a stand-alone basis;
|
|
·
|
the
market value of Simmons common stock prior to the execution of the Triumph merger agreement,
the prospects for future appreciation of Simmons common stock, and the history of dividends
payable by Simmons to holders of Simmons common stock, and the trading liquidity of Simmons
common stock;
|
|
·
|
the
fact that the exchange ratio, as may be adjusted, and the cash consideration to be paid
to Triumph shareholders was believed by Triumph board of directors to be consistent with
market practice for transactions of this type and with the strategic purpose of the transaction;
|
|
·
|
Simmons’
broader products and services offerings, as well as its digital capabilities across its
customer base;
|
|
·
|
the
perceived risks and uncertainties attendant to Triumph’s operation as an independent
banking organization, including the risks and uncertainties related to competition in
market areas of Triumph Bank, increased operating and regulatory costs, interest rate
environments, and potentially increased capital requirements;
|
|
·
|
the
terms of the recent business combinations, including financial institutions, either announced
or completed during the past year and the two quarters of this year in Tennessee and
contiguous states and the effect of such combinations or competitive conditions and future
opportunities in the Triumph market areas;
|
|
·
|
Triumph’s
familiarity of the current and prospective environment in the financial services industry,
including economic conditions and the interest rate and regulatory environments, possible
effects of scale, increased operating costs resulting from regulatory and compliance
mandates, increasing competition from both nationwide banks and non-bank financial and
financial technology firms, and current financial market conditions and the likely effects
of these factors on Triumph’s and the combined company’s potential growth,
development productivity and strategic options, and the likely effect of these factors
on Triumph both with and without the proposed Triumph merger;
|
|
·
|
Triumph’s
views with respect to other strategic alternatives potentially available to Triumph,
including continuing as a stand-alone company focused exclusively on organic growth,
making smaller acquisitions of other banks, transformative transactions (including large
acquisitions or a merger of equals) and a transaction involving the sale of Triumph and
a transformative transaction with another potential acquiror or merger partner, and Triumph’s
belief that a transaction with such other potential transaction partners would not deliver
the financial and operational benefits that could be achieved in the proposed merger
with Simmons;
|
|
·
|
Simmons’
past record of integrating acquisitions and realizing expected financial and other benefits
of such acquisitions;
|
|
·
|
Triumph’s
belief that the two companies’ corporate cultures are similar and compatible, which
would facilitate integration and implementation of the transaction;
|
|
·
|
synergies
and positive impact to local communities and minimize the loss of customers and employees
and to further diversify the operating risk of Triumph on a stand-alone basis;
|
|
·
|
the
fact that the Triumph shareholders will have an opportunity to vote on the approval of
the Triumph merger agreement and the Triumph merger;
|
|
·
|
the
fact that Simmons intends to retain as many employees of Triumph as feasible;
|
|
·
|
the
fact that the Triumph shareholders would be entitled to appraisal or dissenters’
rights in connection with the Triumph merger;
|
|
·
|
the
impact of the Triumph merger on Triumph’s employees, including the compensation
and employee benefits agreed to be provided by Simmons pursuant to the Triumph merger
agreement;
|
|
·
|
the
expectation that the required regulatory approvals could be obtained in a timely fashion;
|
|
·
|
the
expectation the Triumph merger will be generally tax-free for United States federal income
tax purposes for Triumph shareholders;
|
|
·
|
the
oral opinion of Southard Financial to the Triumph board of directors, subsequently confirmed
in writing, to the effect that, as of June 4, 2021, the date of Southard Financial’s
written opinion, and based upon and subject to the factors, qualifications and assumptions
set forth in Southard Financial’s written opinion, the Triumph merger consideration
was fair from a financial point of view to the holders (other than Simmons and its affiliates)
of Triumph common stock, as more fully described below in the section entitled “—Opinion
of Triumph’s Financial Advisor;” and
|
|
·
|
the
terms of the Triumph merger agreement, which Triumph reviewed with its legal counsel,
including the representations, covenants, deal protection, closing conditions and termination
provisions.
|
The Triumph
board of directors also considered the potential risks related to the transaction but concluded that the anticipated benefits
of combining with Simmons were likely to outweigh these risks substantially. These potential risks include:
|
·
|
the
potential for the value of the Triumph merger consideration to be received by Triumph
shareholders to be adversely affected by a decrease in the trading price of Simmons’
common stock;
|
|
·
|
the
possible diversion of management and resources from other strategic opportunities and
operational matters while working to implement the transaction and integrate the two
companies;
|
|
·
|
that
Triumph’s directors and executive officers may have interests in the Triumph merger
that are different from or in addition to those of its shareholders generally, as more
fully described in the section entitled “—Interests of Triumph’s Directors
and Executive Officers in the Triumph Merger;”
|
|
·
|
the
nature and amount of payments and other benefits to be received by Triumph’s management
in connection with the Triumph merger pursuant to existing Triumph plans and compensation
arrangements and the Triumph merger agreement;
|
|
·
|
the
risk of losing key Triumph employees during the pendency of the Triumph merger and thereafter;
|
|
·
|
the
restrictions on the conduct of Triumph’s business during the period between execution
of the Triumph merger agreement and the consummation of the Triumph merger, which could
delay or prevent Triumph from undertaking business opportunities that might arise or
certain actions it might otherwise take regarding its operations, if not for the pendency
of the Triumph merger;
|
|
·
|
the
potential effect of the Triumph merger on Triumph’s overall business, including
its relationships with customers, employees, suppliers and regulators;
|
|
·
|
the
risk that the Triumph merger may not be completed despite the combined efforts of Triumph
and Simmons or that completion may be delayed;
|
|
·
|
the
regulatory and other approvals required in connection with the Triumph merger and the
merger of Triumph Bank with and into Simmons Bank and the risk that such regulatory approvals
will not be received or will not be received in a timely manner or may impose burdensome
or unacceptable conditions;
|
|
·
|
the
potential for legal claims challenging the Triumph merger;
|
|
·
|
the
potential risks associated with achieving anticipated efficiency improvements and cost
reductions and savings and successfully integrating Triumph’s business, operations
and workforce with those of Simmons;
|
|
·
|
the
fact that Triumph may be obligated to pay Simmons a termination fee of $6.5 million
in certain circumstances, as more fully described in the sections entitled “The Merger
Agreements—Termination of the Merger Agreements” and “The Merger Agreements—Termination
Fees,” may deter others from proposing an alternative transaction that may be more
advantageous to the Triumph shareholders; and
|
|
·
|
the
other risks described in the sections entitled “Risk Factors” and “Cautionary
Statement Regarding Forward-Looking Statements.”
|
The foregoing
discussion of the information and factors considered by the Triumph board of directors is not intended to be exhaustive, and may
not include all of the material factors considered by the Triumph board of directors. In view of the variety of factors considered
in connection with its consideration of the Triumph merger agreement and the other transactions contemplated thereby, including
the Triumph merger and the complexity of these matters, the Triumph board of directors did not quantify or assign any relative
weights to the factors considered, and individual directors may have given different weights to different factors. The above factors
are not listed in any particular order of priority. The Triumph board of directors considered all these factors as a whole, including
discussions with, and questioning of, Triumph’s senior management team and Triumph’s financial, legal advisors and
accountants, in evaluating the Triumph merger agreement, the Triumph merger and the other transactions contemplated by the Triumph
merger agreement.
For reasons set
forth above, the Triumph board of directors determined that the Triumph merger agreement and the transactions contemplated by
the Triumph merger agreement are advisable and fair to and in the best interests of Triumph and its shareholders, and approved
the Triumph merger agreement and approved the Triumph merger and the other transactions contemplated by the Triumph merger agreement.
In considering
the recommendation of the Triumph board of directors, you should be aware that certain directors and executive officers of Triumph
may have interests in the Triumph merger that are different from, or in addition, to interests of the Triumph shareholders generally
may create potential conflicts of interest. The Triumph board of directors was aware of these interests and considered them when
evaluating and negotiating the Triumph merger agreement, the Triumph merger and the other transactions contemplated by the Triumph
merger agreement, and in recommending to the Triumph shareholders that they vote in favor of the Triumph merger proposal. See
the description of these interests in the section entitled “The Triumph Merger—Interests of Triumph’s Directors
and Executive Officers in the Triumph Merger.”
This explanation
of the reasoning of the Triumph board of directors and all other information presented in this section is forward-looking in nature
and, therefore, should be read in light of the factors discussed in the section entitled “Cautionary Statement Regarding
Forward-Looking Statements.”
For the reasons
set forth above, the Triumph board of directors unanimously recommends the holders of Triumph common stock vote “FOR”
the Triumph merger proposal and “FOR” the Triumph adjournment proposal.
Each of the
directors and certain executive officers of Triumph, in their capacities as individuals, entered
into Triumph voting agreements with Simmons and Triumph pursuant to which they agreed to vote “FOR” the Triumph merger
proposal and “FOR” any other matters required to be approved by the Triumph shareholders in furtherance of the Triumph
merger proposal. For more information regarding the Triumph voting agreements, please see the section entitled “The Merger Agreements—Voting
Agreements.”
Opinion of Triumph’s Financial
Advisor
Southard Financial
was retained by the Triumph board of directors in connection with the Triumph merger. Southard Financial is a business valuation
and strategic financial management consulting firm founded in 1987. The team of professionals at Southard Financial has extensive
business valuation experience. Southard Financial provides a variety of valuation services, including fairness opinions, and Southard
Financial offers valuations for financial institutions, corporations, and partnerships for various purposes. Since its founding,
Southard Financial has provided thousands of valuation opinions for companies in 43 states. Triumph selected Southard Financial
as its financial advisor on the basis of its experience and expertise in representing community banks in similar transactions
and its familiarity with Triumph.
In connection
with the Triumph merger, the Triumph board of directors has requested that Southard Financial render a written opinion, which
we refer to as the Southard Financial opinion, regarding the fairness of the Triumph merger consideration. Southard Financial
rendered to the Triumph board of directors its firm’s opinion, which was initially rendered orally and confirmed by a written
opinion dated June 4, 2021, to the effect that, as of that date and subject to the procedures followed, assumptions made, matters
considered and qualifications and limitations on the review undertaken as set forth in each such its opinion, the consideration
to be paid by Simmons pursuant to the Triumph merger agreement was fair, from a financial point of view, to the Triumph shareholders.
The full text of the Southard Financial opinion, which sets forth, among other things, the assumptions made, procedures followed,
matters considered and limitations on the review undertaken by Southard Financial in rendering its opinion, is attached to this
proxy statement/prospectus as Annex F. The summary of the Southard Financial opinion set forth herein is qualified in its
entirety by reference to the full text of the opinion. Triumph shareholders should read the full text of the Southard Financial
opinion carefully and in its entirety.
Southard Financial
provided the Southard Financial opinion for the information of the Triumph board of directors (solely in its capacity as such)
in connection with, and for purposes of, its consideration of the Triumph merger agreement, and the Southard Financial opinion
only addressed whether the consideration to be paid by Simmons pursuant to the Triumph merger agreement was fair, from a financial
point of view, to the Triumph shareholders. The Southard Financial opinion does not address any other terms or aspect of the Triumph
merger agreement or the Triumph merger contemplated thereby. The Southard Financial opinion does not constitute a recommendation
to the Triumph board of directors or any holder of Triumph common stock as to how the Triumph board of directors, such shareholder,
or any other person should vote or otherwise act concerning the Triumph merger or any other matter. Southard Financial does not
express any opinion as to the likely trading range of Simmons’ common stock following the Triumph merger, which may vary
depending on numerous factors that generally impact the price of securities or on the financial condition of Simmons at that time.
In connection
with rendering the Southard Financial opinion, Southard Financial reviewed and considered, among other things:
|
·
|
a draft of the Triumph merger
agreement, dated June 4, 2021;
|
|
·
|
certain publicly available
financial statements and other historical financial information of Triumph that Southard Financial deemed relevant;
|
|
·
|
the publicly reported historical
price and trading activity for Simmons common stock;
|
|
·
|
a comparison of certain financial
information for Triumph with similar financial institutions for which information is publicly available;
|
|
·
|
the financial terms of certain
recent business combinations in the banking industry (on a regional and nationwide basis), to the extent publicly available;
|
|
·
|
the current market environment
generally and the banking environment in particular; and
|
|
·
|
other information, financial
studies, analyses and investigations, financial, economic, and market criteria as Southard Financial considered relevant.
|
Southard
Financial also discussed with certain members of Triumph management and its representatives the business, financial condition,
results of operations, and prospects of Triumph.
In performing
its review, Southard Financial relied upon the accuracy and completeness of all of the financial and other information available
to and reviewed by Southard Financial. Southard Financial assumed such accuracy and completeness to render the Southard Financial
opinion without any independent verification or investigation. Southard Financial relied on the assurances of Triumph management
that they were not aware of any facts or circumstances that would make any of such information inaccurate or misleading. Southard
Financial was not asked to and did not undertake independent verification of any of such information. Southard Financial did not
assume any responsibility or liability for the accuracy or completeness thereof. Southard Financial did not make an independent
evaluation or perform an appraisal of the specific assets, the collateral securing assets, or the liabilities (contingent or otherwise)
of Triumph, nor was Southard Financial furnished with any such evaluations or appraisals. Southard Financial rendered no opinion
or evaluation on the collectability of any assets or the future performance of any loans of Triumph. Southard Financial did not
independently evaluate the adequacy of the allowance for loan losses of Triumph or the combined entity after the Triumph merger.
Southard Financial did not review any individual credit files relating to Triumph. Southard Financial assumed that the allowances
for loan loss provision at Triumph were adequate to cover such losses and would be sufficient on a pro forma basis for the combined
entity.
Southard
Financial also assumed, with Triumph’s consent, that (i) each of the parties to the Triumph merger agreement would comply
in all material respects with all material terms of the Triumph merger agreement and all related agreements, that all of the representations
and warranties contained in such agreements were true and correct in all material respects, that each of the parties to such agreements
would perform in all material respects all of the covenants required to be performed by such party under the agreements and that
the conditions precedent in such agreements were not and would not be waived, (ii) in the course of obtaining the necessary regulatory
or third-party approvals, consents and releases with respect to the Triumph merger, no delay, limitation, restriction or condition
would be imposed that would have an adverse effect on Triumph, Simmons or the Triumph merger or any related transactions, and
(iii) the Triumph merger and any related transactions would be consummated in accordance with the terms of the Triumph merger
agreement without any waiver, modification or amendment of any material term, condition or agreement thereof and in compliance
with all applicable laws and other requirements. Finally, with Triumph’s consent, Southard Financial relied upon the advice
that Triumph received from its legal, accounting, and tax advisors as to all legal, accounting, and tax matters relating to the
Triumph merger and the other transactions contemplated by the Triumph merger agreement. Accordingly, Southard Financial expressed
no opinion as to any such matters.
The Southard
Financial opinion was necessarily based on financial, economic, regulatory, market, and other conditions as in effect on, and
the information made available to Southard Financial as of the date of the Southard Financial opinion. Events occurring after
the date of the Southard Financial opinion could materially affect the Southard Financial opinion. Southard Financial has not
undertaken to update, revise, reaffirm or withdraw the Southard Financial opinion or otherwise comment upon events occurring after
the date of the Southard Financial opinion. Southard Financial expresses no opinion as to the trading value of Simmons common
stock at any time or what the value of Simmons common stock would be once it is received by Triumph shareholders.
In rendering
the Southard Financial opinion, Southard Financial performed a variety of financial analyses. The summary below is not a complete
description of the analyses underlying the Southard Financial opinion or the presentation made by Southard Financial to the Triumph
board of directors. However, it is a summary of all material analyses performed and presented by Southard Financial. To fully
understand the financial analyses, these tables must be read together with the accompanying text. The tables alone do not constitute
a complete description of the financial analyses. Also, no company included in Southard Financial’s comparative analyses
described below is identical to Triumph, and no transaction is identical to the Triumph merger. Accordingly, an analysis of comparable
companies or transactions involves complex considerations and judgments concerning differences in financial and operating characteristics
of the companies and other factors that could affect the public trading values or merger transaction values, as the case may be,
of Triumph and the companies to which they are being compared. In arriving at the Southard Financial opinion, Southard Financial
did not attribute any particular weight to any analysis or factor that it considered. Rather, Southard Financial made qualitative
judgments as to the significance and relevance of each analysis and factor. Southard Financial did not form an opinion as to whether
any individual analysis or factor (positive or negative) considered in isolation supported or failed to support the Southard Financial
opinion; instead, Southard Financial made its determination as to the fairness of the Triumph merger based on its experience and
professional judgment after considering the results of all its analyses taken as a whole.
In performing
its analyses, Southard Financial also made numerous assumptions concerning industry performance, business and economic conditions,
and various other matters, many of which are beyond the control of Triumph. Southard Financial prepared its analyses solely for
purposes of rendering the Southard Financial opinion. Estimates of the values of companies do not purport to be appraisals or
necessarily reflect the prices at which companies or their securities may actually be sold. Such estimates are inherently subject
to uncertainty, and actual values may be materially different. Accordingly, Southard Financial’s analyses do not necessarily
reflect the value of Triumph common stock or the prices at which Triumph common stock may be sold at any time. The analyses of
Southard Financial and the Southard Financial opinion were among many factors taken into consideration by the Triumph board of
directors in making its determination to approve the Triumph merger agreement. The type and amount of consideration payable in
the Triumph merger were determined through negotiations between Triumph and Simmons.
Summary
of Consideration and Implied Transaction Metrics
Southard Financial
reviewed the financial terms of the Triumph merger. Under the terms of the Triumph merger agreement, Triumph shareholders are
entitled to receive, in exchange for all outstanding shares of Triumph common stock, subject to adjustments outlined in the Triumph
merger agreement, consideration equal to 4,164,839 shares of Simmons common stock and $2,645,938 in cash (in the aggregate, rounded,
minus cash payment to optionholders of Triumph). The aggregate implied deal value as of June 4, 2021 is shown below.
Total Consideration
|
|
Announced*
|
|
Buyer Shares
|
|
|
4,164,839
|
|
SFNC Price Per Share
|
|
$
|
30.96
|
|
|
|
|
|
|
SFNC Share Consideration
|
|
|
128,943,415
|
|
Cash Consideration
|
|
|
2,645,938
|
|
|
|
|
|
|
Deal Value
|
|
|
131,589,353
|
|
* Based on Closing Price as
of June 4, 2021
|
The implied
deal ratios as reported by S&P Global, Inc., which reflect Triumph’s financial information for the twelve months ended
December 31, 2020, are shown below.
Announcement Deal Ratios
|
|
Price/
Earnings
|
|
|
Price/
Book
|
|
|
Price/
Tang Book
|
|
Deal Value
|
|
|
131,589,353
|
|
|
|
131,589,353
|
|
|
|
131,589,353
|
|
Triumph Bancshares, Inc.
|
|
|
7,663,536
|
|
|
|
87,839,070
|
|
|
|
86,288,070
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Multiple
|
|
|
17.17
|
x
|
|
|
149.81
|
%
|
|
|
152.50
|
%
|
The implied
deal ratios based on Triumph’s financial information for the twelve months ended May 31, 2021 are shown below.
Current Deal Ratios
|
|
Price/
Earnings
|
|
|
Price/
Book
|
|
|
Price/
Tang Book
|
|
Deal Value
|
|
|
131,589,353
|
|
|
|
131,589,353
|
|
|
|
131,589,353
|
|
Triumph Bancshares, Inc.
|
|
|
7,366,575
|
|
|
|
90,036,217
|
|
|
|
88,486,060
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Multiple
|
|
|
17.86
|
x
|
|
|
146.15
|
%
|
|
|
148.71
|
%
|
Selected
National Mergers Analysis
Southard Financial
analyzed publicly available information relating to 19 selected acquisitions of banking institutions with assets between $500
million and $2.5 billion and announced on or after October 1, 2020. In addition, transactions involving banks with unreported
book value pricing multiples were excluded. The selected transactions used in the analysis included (buyer/seller):
Enterprise Financial Services Corp/First
Choice Bancorp
|
HPS Investment Partners, LLC/Marlin Business
Services Corp.
|
First Foundation Inc./TGR Financial, Inc.
|
Bank of Marin Bancorp/American River Bankshares
|
Peoples Bancorp Inc./Premier Financial
Bancorp, Inc.
|
Virginia National Bankshares Corporation/Fauquier
Bankshares, Inc.
|
First Bancorp/Select Bancorp, Inc.
|
BancorpSouth Bank/FNS Bancshares, Inc.
|
United Bankshares, Inc./Community Bankers
Trust Corporation
|
Equity Bancshares, Inc./American State
Bancshares, Inc.
|
Banc of California, Inc./Pacific Mercantile
Bancorp
|
United Community Banks, Inc./Aquesta Financial
Holdings, Inc.
|
VyStar Credit Union/Heritage Southeast
Bancorporation Inc.
|
BancorpSouth Bank/National United Bancshares,
Inc.
|
Nicolet Bankshares, Inc./Mackinac Financial
Corporation
|
Colony Bankcorp, Inc./SouthCrest Financial
Group, Inc.
|
First Busey Corporation/Cummins-American
Corp.
|
Seacoast Banking Corporation of Florida/Legacy
Bank of Florida
|
Stock Yards Bancorp, Inc./Kentucky Bancshares,
Inc.
|
|
The following
operating statistics were compiled for the guideline transaction group and Triumph Bank.
|
|
Triumph
|
|
|
Whole Bank Transactions from S&P Global, Inc.
|
|
Financial Metric
|
|
Bank *
|
|
|
Low
|
|
|
25th Percent
|
|
|
Median
|
|
|
75th Percent
|
|
|
High
|
|
LTM Return on Average Equity
|
|
|
10.10
|
%
|
|
|
0.18
|
%
|
|
|
6.61
|
%
|
|
|
8.82
|
%
|
|
|
10.64
|
%
|
|
|
12.45
|
%
|
LTM Return on Average Assets
|
|
|
0.98
|
%
|
|
|
0.03
|
%
|
|
|
0.78
|
%
|
|
|
0.91
|
%
|
|
|
1.09
|
%
|
|
|
1.38
|
%
|
Non-Performing Assets/Total Assets
|
|
|
0.92
|
%
|
|
|
0.00
|
%
|
|
|
0.46
|
%
|
|
|
0.71
|
%
|
|
|
1.16
|
%
|
|
|
2.53
|
%
|
Total Assets
|
|
|
893,732
|
|
|
|
533,334
|
|
|
|
781,809
|
|
|
|
1,200,539
|
|
|
|
1,643,199
|
|
|
|
2,283,115
|
|
|
*
|
For
Triumph Bank, reflects data through March 31, 2021 last twelve months (“LTM”)
as reported by S&P Global, Inc.
|
The implied Triumph
merger multiples and summary whole bank transaction multiples are shown below.
|
|
Transaction
|
|
|
Multiples w/
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Announced
|
|
|
Updated Triumph
|
|
|
Whole Bank Transactions from S&P Global, Inc.
|
|
Valuation Metric
|
|
By S&P *
|
|
|
Data **
|
|
|
Low
|
|
|
25th Percent
|
|
|
Median
|
|
|
75th Percent
|
|
|
High
|
|
Price / Earnings
|
|
|
17.17
|
x
|
|
|
17.86
|
x
|
|
|
10.10
|
x
|
|
|
14.60
|
x
|
|
|
17.61
|
x
|
|
|
19.20
|
x
|
|
|
43.55
|
x
|
Price / Book
|
|
|
149.81
|
%
|
|
|
146.15
|
%
|
|
|
85.49
|
%
|
|
|
135.43
|
%
|
|
|
145.18
|
%
|
|
|
154.33
|
%
|
|
|
214.25
|
%
|
Price / Tangible Book
|
|
|
152.50
|
%
|
|
|
148.71
|
%
|
|
|
85.49
|
%
|
|
|
146.81
|
%
|
|
|
168.21
|
%
|
|
|
181.94
|
%
|
|
|
214.33
|
%
|
|
*
|
For
Triumph Bancshares, Inc., reflects multiples as announced by S&P Global, Inc. (reflects
Triumph data for the twelve months ended December 31, 2020)
|
|
**
|
For
Triumph Bancshares, Inc., based on SFNC closing on June 4, 2021 and Triumph data for
twelve months ended May 31, 2021
|
Based on the
review conducted by Southard Financial, the implied Triumph merger pricing ratios are within the range of the whole bank pricing
ratios shown above, supporting the fairness of the Triumph merger to the Triumph shareholders. It should be noted that Triumph’s
earnings were well above historical levels in 2020 and 2021 year-to-date, largely due to the impact of Triumph Bank’s mortgage
origination operations. Despite the substantial increase in earnings and the significant non-core mortgage origination income,
Triumph’s implied price/earnings ratio is still near the median of the guideline transaction group reviewed by Southard
Financial.
Selected
Regional Mergers Analysis
Southard Financial
analyzed publicly available information relating to a regional (southeastern United States) subset of the national group above.
The 10 transactions used in the analysis included (buyer/seller):
First Foundation Inc./TGR Financial,
Inc.
|
Virginia National Bankshares
Corporation/Fauquier Bankshares, Inc.
|
Peoples Bancorp Inc./Premier Financial
Bancorp, Inc.
|
BancorpSouth Bank/FNS Bancshares, Inc.
|
First Bancorp/Select Bancorp, Inc.
|
United Community Banks, Inc./Aquesta Financial
Holdings, Inc.
|
United Bankshares, Inc./Community Bankers
Trust Corporation
|
Colony Bankcorp, Inc./SouthCrest Financial
Group, Inc.
|
VyStar Credit Union/Heritage Southeast
Bancorporation Inc.
|
Seacoast Banking Corporation of Florida/Legacy
Bank of Florida
|
The following
operating statistics were compiled for the guideline transaction group and Triumph Bank.
|
|
Triumph
|
|
|
Publicly Traded Bank Data from S&P Global, Inc.
|
|
Financial Metric
|
|
Bank *
|
|
|
Low
|
|
|
25th Percent
|
|
|
Median
|
|
|
75th Percent
|
|
|
High
|
|
LTM Return on Average Equity
|
|
|
10.10
|
%
|
|
|
3.16
|
%
|
|
|
7.44
|
%
|
|
|
9.71
|
%
|
|
|
11.30
|
%
|
|
|
12.45
|
%
|
LTM Return on Average Assets
|
|
|
0.98
|
%
|
|
|
0.31
|
%
|
|
|
0.79
|
%
|
|
|
0.95
|
%
|
|
|
1.13
|
%
|
|
|
1.28
|
%
|
Non-Performing Assets/Total Assets
|
|
|
0.92
|
%
|
|
|
0.00
|
%
|
|
|
0.42
|
%
|
|
|
0.63
|
%
|
|
|
0.86
|
%
|
|
|
1.31
|
%
|
Total Assets
|
|
|
893,732
|
|
|
|
533,334
|
|
|
|
760,832
|
|
|
|
1,205,738
|
|
|
|
1,798,949
|
|
|
|
2,273,916
|
|
|
*
|
For Triumph Bank, reflects
data through March 31, 2021 LTM as reported by S&P Global, Inc.
|
The implied Triumph
merger multiples and summary whole bank transaction multiples are shown below.
|
|
Transaction
|
|
|
Multiples w/
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Announced
|
|
|
Updated Triumph
|
|
|
Whole Bank Transactions from S&P Global, Inc.
|
|
Valuation Metric
|
|
By S&P *
|
|
|
Data **
|
|
|
Low
|
|
|
25th Percent
|
|
|
Median
|
|
|
75th Percent
|
|
|
High
|
|
Price / Earnings
|
|
|
17.17
|
x
|
|
|
17.86
|
x
|
|
|
10.10
|
x
|
|
|
13.24
|
x
|
|
|
17.61
|
x
|
|
|
19.05
|
x
|
|
|
43.55
|
x
|
Price / Book
|
|
|
149.81
|
%
|
|
|
146.15
|
%
|
|
|
85.49
|
%
|
|
|
134.84
|
%
|
|
|
146.86
|
%
|
|
|
176.87
|
%
|
|
|
214.25
|
%
|
Price / Tangible Book
|
|
|
152.50
|
%
|
|
|
148.71
|
%
|
|
|
85.49
|
%
|
|
|
148.04
|
%
|
|
|
174.29
|
%
|
|
|
184.92
|
%
|
|
|
214.33
|
%
|
|
*
|
For
Triumph Bancshares, Inc., reflects multiples as announced by S&P Global, Inc. (reflects
Triumph data for the twelve months ended December 31, 2020)
|
|
**
|
For
Triumph Bancshares, Inc., based on SFNC closing on June 4, 2021 and Triumph data for
twelve months ended May 31, 2021
|
Based on the
review conducted by Southard Financial, the implied Triumph merger pricing ratios are within the range of the whole bank pricing
ratios shown above, supporting the fairness of the Triumph merger to the Triumph shareholders. It should be noted that Triumph’s
earnings were well above historical levels in 2020 and 2021 year-to-date, largely due to the impact of Triumph Bank’s mortgage
origination operations. Despite the substantial increase in earnings and the significant non-core mortgage origination income,
Triumph’s implied price/earnings ratio is still near the median of the guideline transaction group reviewed by Southard
financial.
Comparable
Company Analysis
Southard Financial
analyzed publicly available information relating to publicly traded banking institutions with the following characteristics: (a)
assets between $500 million and $2.5 billion; (b) LTM return on average assets of 0.5% to 1.5%; (c) LTM return on average equity
of 5% to 15%; and (d) average daily trading volume of 1,000 shares or more. Further, institutions that are the target of an
announced acquisition were excluded from the group. The 30 selected publicly traded banking institutions used in the analysis
included:
Auburn National Bancorporation,
Inc.
|
MainStreet Bancshares, Inc.
|
Bank of South Carolina Corporation
|
Mountain Commerce Bancorp, Inc.
|
Bank of the James Financial Group, Inc.
|
National Bankshares, Inc.
|
C&F Financial Corporation
|
New Peoples Bankshares, Inc.
|
Citizens Bancshares Corporation
|
Old Point Financial Corporation
|
Citizens Holding Company
|
Parkway Acquisition Corp.
|
Coastal Carolina Bancshares, Inc.
|
Peoples Bancorp of North Carolina, Inc.
|
Colony Bankcorp, Inc.
|
Prime Meridian Holding Company
|
F & M Bank Corp.
|
Professional Holding Corp.
|
First Community Corporation
|
South Atlantic Bancshares, Inc.
|
First IC Corporation
|
The Freedom Bank of Virginia
|
First National Corporation
|
Touchstone Bankshares Inc.
|
FVCBankcorp, Inc.
|
UB Bancorp
|
GrandSouth Bancorporation
|
United Bancorporation of Alabama, Inc.
|
John Marshall Bancorp, Inc.
|
Virginia National Bankshares Corporation
|
The following
operating statistics were compiled for the publicly traded group and Triumph.
|
|
Triumph
|
|
|
Publicly Traded Bank Data from S&P Global, Inc.
|
|
Financial Metric
|
|
Bank *
|
|
|
Low
|
|
|
25th Percent
|
|
|
Median
|
|
|
75th Percent
|
|
|
High
|
|
LTM Return on Average Equity
|
|
|
10.10
|
%
|
|
|
5.68
|
%
|
|
|
7.93
|
%
|
|
|
9.92
|
%
|
|
|
11.52
|
%
|
|
|
14.25
|
%
|
LTM Return on Average Assets
|
|
|
0.98
|
%
|
|
|
0.54
|
%
|
|
|
0.74
|
%
|
|
|
0.97
|
%
|
|
|
1.12
|
%
|
|
|
1.47
|
%
|
Non-Performing Assets/Total Assets
|
|
|
0.92
|
%
|
|
|
0.03
|
%
|
|
|
0.14
|
%
|
|
|
0.35
|
%
|
|
|
0.65
|
%
|
|
|
1.33
|
%
|
Total Assets
|
|
|
893,732
|
|
|
|
554,099
|
|
|
|
874,874
|
|
|
|
1,032,398
|
|
|
|
1,545,655
|
|
|
|
2,233,558
|
|
|
*
|
For Triumph Bank, reflects
data through March 31, 2021 LTM as reported by S&P Global, Inc.
|
The implied Triumph
merger multiples and summary market pricing multiples of the guideline group of publicly traded bank stocks are shown below.
|
|
Transaction
|
|
|
Multiples w/
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Announced
|
|
|
Updated Triumph
|
|
|
Publicly Traded Bank Data from S&P Global, Inc.
|
|
Valuation Metric
|
|
By S&P *
|
|
|
Data **
|
|
|
Low
|
|
|
25th Percent
|
|
|
Median
|
|
|
75th Percent
|
|
|
High
|
|
Price / Earnings
|
|
|
17.17
|
x
|
|
|
17.86
|
x
|
|
|
5.57
|
x
|
|
|
11.03
|
x
|
|
|
12.50
|
x
|
|
|
14.00
|
x
|
|
|
18.33
|
x
|
Price / Book
|
|
|
149.81
|
%
|
|
|
146.15
|
%
|
|
|
54.21
|
%
|
|
|
101.39
|
%
|
|
|
113.21
|
%
|
|
|
120.68
|
%
|
|
|
209.12
|
%
|
Price / Tangible Book
|
|
|
152.50
|
%
|
|
|
148.71
|
%
|
|
|
54.59
|
%
|
|
|
105.87
|
%
|
|
|
114.91
|
%
|
|
|
130.56
|
%
|
|
|
209.12
|
%
|
|
*
|
For
Triumph Bancshares, Inc., reflects multiples as announced by S&P Global, Inc. (reflects
Triumph data for the twelve months ended December 31, 2020)
|
|
**
|
For
Triumph Bancshares, Inc., based on SFNC closing on June 4, 2021 and Triumph data for
twelve months ended May 31, 2021
|
Based on the
review conducted by Southard Financial, the implied Triumph merger pricing ratios are near the high end of the range of the publicly
traded pricing ratios shown above, supporting the fairness of the Triumph merger to the Triumph shareholders.
Present
Value Analysis
Southard Financial
performed an analysis of the present value of Triumph’s future earnings. The analysis is based on Triumph’s historical
and projected financial results on a standalone basis with normalizing adjustments made by Southard Financial. Southard Financial
utilized a single period model with earnings in the first year estimated as follows: (a) ongoing pre-tax return on average assets
of 1.20% based on historical results and forecasted results, (b) forecasted 2021 average assets, (c) ongoing holding company net
pre-tax expenses, and (d) an estimated tax rate of 26%.
Sensitivity Analysis ($000)
|
|
|
Discount Rate
|
|
|
|
11.00%
|
|
|
12.00%
|
|
|
13.00%
|
|
|
14.00%
|
|
|
15.00%
|
|
Terminal Value Growth
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3.0%
|
|
|
105,437,500
|
|
|
|
93,712,850
|
|
|
|
84,350,000
|
|
|
|
76,674,150
|
|
|
|
70,263,550
|
|
3.5%
|
|
|
112,438,550
|
|
|
|
99,195,600
|
|
|
|
88,820,550
|
|
|
|
80,301,200
|
|
|
|
73,384,500
|
|
4.0%
|
|
|
120,536,150
|
|
|
|
105,437,500
|
|
|
|
93,712,850
|
|
|
|
84,350,000
|
|
|
|
76,674,150
|
|
4.5%
|
|
|
129,730,300
|
|
|
|
112,438,550
|
|
|
|
99,195,600
|
|
|
|
88,820,550
|
|
|
|
80,301,200
|
|
5.0%
|
|
|
140,611,450
|
|
|
|
120,536,150
|
|
|
|
105,437,500
|
|
|
|
93,712,850
|
|
|
|
84,350,000
|
|
As illustrated
in the sensitivity analysis above, the valuation of Triumph ranged from $70.3 million to $140.6 million with a base case scenario
valuation of $93.7 million. The consideration to be received by Triumph shareholders (approximately $132 million based on the
closing price of Simmons common stock on June 4, 2021) generally represents a premium to the values shown above, supporting the
fairness of the Triumph merger to the Triumph shareholders.
Liquidity
The proposed
Triumph merger will create liquidity for the Triumph shareholders as the Triumph shareholders will own Simmons common stock following
the Triumph merger, which is publicly traded stock with significant volume (median daily volume of approximately 470,000 shares
in the year-to-date period ended June 4, 2021). The ability to hold publicly traded shares versus privately held stock is a significant
positive factor for the Triumph shareholders.
Additional
Considerations
The preparation
of a fairness opinion is a complex process and is not susceptible to a partial analysis or summary description. Therefore, Southard
Financial believes that its analyses must be considered as a whole and that selecting portions of its analyses would create an
incomplete view of the process underlying the Southard Financial opinion without considering the analyses taken as a whole. In
addition, Southard Financial considered the results of all such analyses and did not assign relative weights to any of the analyses,
but instead made qualitative judgments as to the significance and relevance of each analysis and factor, so the ranges of valuations
resulting from any particular analysis described above should not be taken to be the view of Southard Financial as to the actual
value of Triumph.
In accordance with recognized
professional ethics, Southard Financial’s professional fees for this service are not contingent upon the opinions expressed herein,
and neither Southard Financial, nor any of its employees, has a present or intended financial relationship with or interest in Simmons,
Triumph or Triumph Bank.
Certain Prospective Financial
Information
Simmons and Triumph
do not as a matter of course make public projections as to future performance, revenues, earnings or other financial results due
to, among other reasons, the inherent uncertainty of the underlying assumptions and estimates of any such projections. However,
Triumph is including in this proxy statement/prospectus certain unaudited prospective financial information that was made available
by Triumph to Southard Financial for the purpose of Southard Financial performing its financial analysis in connection with rendering
its opinion to the Triumph board of directors, as described in the section entitled “—Opinion of Triumph’s Financial
Advisor.” This unaudited prospective financial information, which we refer to as the Triumph prospective information, was
prepared solely by Triumph management and was not prepared, provided to, reviewed or approved by Simmons management or the Simmons
board of directors. By inclusion of this information, the respective managements and boards of directors of Triumph and Simmons,
and Triumph’s financial advisor, assume no responsibility for the Triumph prospective information. The inclusion of this
information should not be regarded as an indication that any of Triumph, Simmons, Southard Financial, their respective representatives
or any other recipient of this information considered, or now considers, it to be necessarily predictive of actual future results,
or that it should be construed as financial guidance, and it should not be relied on as such.
The Triumph prospective
information was prepared solely by Triumph management for internal use and is subjective in many respects. While presented with
numeric specificity, the Triumph prospective information reflects numerous estimates and assumptions made solely by Triumph management
with respect to business, economic, market, competition, regulatory and financial conditions and matters specific to Triumph’s
business,
all of which are difficult to predict and many of which are beyond Triumph’s control. The Triumph prospective
information reflects both assumptions solely by Triumph management as to certain business decisions that are subject to change
and, in many respects, subjective judgment solely by Triumph management, and thus is susceptible to multiple interpretations and
periodic revisions based on actual experience and business developments. No assurance can be given that the Triumph prospective
information and the underlying estimates and assumptions will be realized. Actual results may differ materially from those set
forth below, and important factors that may affect actual results and cause the Triumph prospective information to be inaccurate
include, but are not limited to, risks and uncertainties relating to Triumph’s business, industry performance, general business
and economic conditions, competition, customer requirements and adverse changes in applicable laws, regulations or rules. For
other factors that could cause actual results to differ, see the sections entitled “Risk Factors” and “Cautionary
Statement Regarding Forward-Looking Statements” in this proxy statement/prospectus.
The Triumph prospective
information was not prepared by Triumph management with a view toward public disclosure, nor was it prepared with a view toward
compliance with GAAP, the prevailing practices in the banking industry, published guidelines of the SEC or the guidelines established
by the American Institute of Certified Public Accountants for preparation and presentation of prospective financial information.
In addition, the Triumph prospective information requires significant estimates and assumptions that make it inherently less comparable
to the similarly titled GAAP measures in Triumph’s historical GAAP financial statements. Neither Triumph’s nor Simmons’
independent public accountants nor any other independent accountants, have compiled, examined or performed any procedures with
respect to the Triumph prospective information contained herein, nor have they expressed any opinion or any other form of assurance
on such information or its achievability.
Furthermore,
the Triumph prospective information does not take into account any circumstances or events occurring after the date it was prepared.
No assurance can be given that, had the Triumph prospective information been prepared as of the date of this proxy statement/prospectus,
similar estimates and assumptions would be used. Neither Triumph nor Simmons intends to, and expressly disclaims any obligation
to, make publicly available any update or other revision to the Triumph prospective information to reflect circumstances existing
since their preparation or to reflect the occurrence of unanticipated events, even in the event that any or all of the underlying
assumptions are shown to be in error, or to reflect changes in general economic or industry conditions. The Triumph prospective
information does not take into account the possible financial and other effects on Triumph of the Triumph merger and does not
attempt to predict or suggest future results of the surviving company. The Triumph prospective information does not give effect
to the Triumph merger, including the impact of negotiating or executing the Triumph merger agreement, the expenses that may be
incurred in connection with consummating the Triumph merger, the potential synergies that may be achieved by the surviving company
as a result of the Triumph merger, the effect on Triumph of any business or strategic decision or action that has been or will
be taken as a result of the Triumph merger agreement having been executed, or the effect of any business or strategic decisions
or actions that would likely have been taken if the Triumph merger agreement had not been executed, but which were instead altered,
accelerated, postponed or not taken in anticipation of the Triumph merger. Further, the Triumph prospective information does not
take into account the effect on Triumph of any possible failure of the Triumph merger to occur.
None of
Triumph, Simmons, Southard Financial, or their respective affiliates, officers, directors, advisors or other representatives has
made, makes or is authorized in the future to make any representation to any shareholder of Triumph or Simmons or other persons
regarding Triumph’s ultimate performance compared to the information contained in the Triumph prospective information or
that the projected results will be achieved. The summary of the Triumph prospective information included below is not being included
to influence your decision whether to vote for the Triumph merger proposal, but is being provided solely because it was made available
to Southard Financial in connection with the Triumph merger.
In light of the
foregoing, and considering that the Triumph special meeting will be held many months after the Triumph prospective information
was prepared, as well as the uncertainties inherent in any forecasted information, Triumph shareholders are cautioned not to place
unwarranted reliance on such information, and all Triumph shareholders are urged to review the other information contained elsewhere
in this proxy statement/prospectus for a description of Simmons’ and Landmark’s respective businesses as well as Simmons’
most recent SEC filings for a description of Simmons’ reported financial results. See the section entitled “Where
You Can Find More Information.”
The following
tables present the Triumph prospective information, which was prepared solely by Triumph management and approved for Southard
Financial’s use by the Triumph board of directors for Southard Financial’s financial analysis in connection with rendering
the Southard Financial opinion to the Triumph board of directors, as described in the section entitled “—Opinion of
Triumph’s Financial Advisor.”
|
|
As
of or For the Years Ended December 31,
|
|
|
2021
|
|
2022
|
|
2023
|
|
2024
|
|
2025
|
Triumph Net Income ($ millions)
|
|
$
|
8.3
|
|
|
$
|
8.5
|
|
|
$
|
8.9
|
|
|
$
|
9.2
|
|
|
$
|
10.7
|
|
Triumph Total Assets ($ billions)
|
|
|
0.98
|
|
|
|
1.08
|
|
|
|
1.19
|
|
|
|
1.30
|
|
|
|
1.43
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assumed
Long-Term Growth Rates for Triumph
|
|
Earnings (%)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6.48
|
%
|
|
|
|
|
Total Assets (%)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9.88
|
%
|
|
|
|
|
Simmons’ Reasons
for the Triumph Merger
In reaching its
decision to adopt and approve the Triumph merger agreement, the Triumph merger and the other transactions contemplated by the
Triumph merger agreement, the Simmons board of directors evaluated the Triumph merger agreement and the Triumph merger in consultation
with Simmons’ management, as well as Simmons’ financial and legal advisors, and considered a number of factors, including,
without limitation, the following material factors, which are not presented in order of priority:
|
·
|
the
anticipation that the Triumph merger is expected to enhance the scale and expand the
footprint of the combined company in the attractive Tennessee banking market;
|
|
·
|
each
of Simmons’, Triumph’s and the combined company’s business, operations,
financial condition, asset quality, earnings and prospects;
|
|
·
|
the
fact that Triumph’s business and operations complement those of Simmons and that
the Triumph merger would result in a combined company with a diversified revenue stream
from diversified geographic markets, a well-balanced portfolio and an attractive funding
base;
|
|
·
|
its
existing knowledge of Triumph’s business and its review and discussions with Simmons’
management concerning the additional due diligence examination of Triumph conducted in
connection with the Triumph merger;
|
|
·
|
the
perceived complementary nature of the cultures and the shared core technology operating
systems of the two companies, which Simmons’ management believes should facilitate
integration and implementation of the Triumph merger;
|
|
·
|
the
complementary branch networks of Simmons and Triumph;
|
|
·
|
Triumph’s
market position within the Tennessee banking market, particularly Triumph’s market
share in the Nashville market;
|
|
·
|
its
understanding of the current and prospective environment in which Simmons and Triumph
operate, including national, regional and local economic conditions, the competitive
environment for financial institutions generally and the likely effect of these factors
on Simmons both with and without the Triumph merger;
|
|
·
|
the
market for alternative merger or acquisition transactions in the financial services industry
and the likelihood and timing of other material strategic transactions;
|
|
·
|
the
terms of the Triumph merger agreement, including the Triumph merger consideration, expected
tax treatment, deal protection and termination fee provisions, which the Simmons board
of directors reviewed with Simmons’ management and Simmons’ financial and
legal advisors;
|
|
·
|
Simmons’
successful operating and acquisition track record, specifically Simmons’ history
of efficiently closing and integrating acquisitions;
|
|
·
|
its
belief that the Triumph merger is likely to provide substantial value to Simmons shareholders;
|
|
·
|
the
potential risks associated with achieving anticipated cost synergies and savings and
successfully integrating Triumph’s business, operations and workforce with those
of Simmons;
|
|
·
|
the
potential risk of diverting management attention and resources from the operation of
Simmons’ business and towards the completion of the Triumph merger;
|
|
·
|
certain
anticipated Triumph merger-related costs;
|
|
·
|
the
regulatory and other approvals required in connection with the Triumph merger and the
expectation that such regulatory approvals will be received in a timely manner and without
the imposition of unacceptable conditions, including a burdensome condition;
|
|
·
|
the
potential risk of losing other acquisition opportunities while Simmons remains focused
on completing the Triumph merger; and
|
|
·
|
the
nature and amount of payments and other benefits to be received by Triumph management
in connection with the Triumph merger.
|
The foregoing
discussion of the information and factors considered by the Simmons board of directors is not intended to be exhaustive, but,
rather, includes the material factors considered by the Simmons board of directors. In reaching its decision to adopt and approve
the Triumph merger agreement, the Triumph merger and the other transactions contemplated by the Triumph merger agreement, the
Simmons board of directors did not quantify or assign any relative weights to the factors considered, and individual directors
may have given different weights to different factors. The Simmons board of directors considered all these factors as a whole,
and overall considered the factors to be favorable to, and to support, its determination to adopt and approve the Triumph merger
agreement and the transactions contemplated thereby, including the Triumph merger.
This explanation
of the Simmons board of directors’ reasoning and all other information presented in this section is forward-looking in nature
and, therefore, should be read in light of the factors discussed in the section entitled “Cautionary Statement Regarding
Forward-Looking Statements.”
Interests of Triumph’s
Directors and Executive Officers in the Triumph Merger
In
considering the recommendation of the Triumph board of directors that Triumph shareholders vote “FOR” the
Triumph merger proposal, Triumph shareholders should be aware that some of Triumph’s executive officers and directors have
interests in the Triumph merger, which may be considered to be different from, or in addition to, the interests of the Triumph
shareholders generally. These interests are described below. The Triumph board of directors was aware of these interests and considered
them, among other matters, in reaching its decision to approve the Triumph merger agreement, the Triumph merger and the other
transactions contemplated by the Triumph merger agreement and to recommend that Triumph shareholders vote “FOR”
the Triumph merger proposal.
Employment
Agreements
Seven executive
officers of Triumph are party to employment agreements with Triumph that contain change of control payments: William J. Chase, Jr., Michael
J. McCarver, Scott A. Forman, Steven C. Mitchener, John N. Brignole, David Umsted, and William C. Menkel. Under these employment agreements,
the Triumph merger would constitute a change in control, as defined in the agreements. Without a change in control, these seven executives
are entitled to certain defined severance benefits if they are terminated by Triumph without cause, as cause is defined in their respective
employment agreements. In the event of termination (without a change in control), (i) Messrs. Chase, McCarver, Brignole, Umsted and Menkel
would be entitled to receive compensation equal to their annual base salary and 12 months of continued health coverage, and (ii) Messrs.
Forman and Mitchener would be entitled to receive compensation equal to one-half of their annual base salary and six months of continued
health coverage. In the event of resignation for good reason (without a change in control), (i) Mr. Menkel would be entitled to receive
compensation equal to his annual base salary and 12 months of continued health coverage and (ii) Mr. Mitchener would be entitled one-half
of his annual base salary and six months of continued health coverage. Upon a change of control, the seven executives may be due
certain payments based on the terms and conditions of their employment agreements, as follows.
William
J. Chase, Jr., Michael J. McCarver and William C. Menkel. In the event of a change of control, if any of Messrs. Chase, McCarver
or Menkel is offered a new employment agreement that contains a “material reduction,” which is defined as (i) a material
reduction in the executive’s duties, title, authority or responsibilities, and (ii) a reduction in the base salary of the executive,
or (iii) a relocation of the executive’s principal place of work to more than 25 miles from a specified location in Tennessee,
then he is due a payment equal to his annual base salary and 12 months of continued health coverage. If any of Messrs. Chase, McCarver
or Menkel is terminated in anticipation of the change in control or is not offered a position after the change in control, then he is
due a payment equal to two times his annual base salary in the case of Messrs. Chase and McCarver, and equal to his annual base salary
in the case of Mr. Menkel, as well as 12 months of continued health coverage. Mr. Chase was offered a position that included a
material reduction and as a result he will be eligible for a payment equal to his annual base salary and 12 months of continued health
coverage.
David
Umsted, Scott A. Forman and John N. Brignole. In the event of a termination without cause or resignation for good reason (either
before or after a change of control), each of Messrs. Umsted, Forman and Brignole is entitled to receive 12 months of continued
health coverage, Mr. Forman is entitled to receive a payment equal to one-half of his annual base salary and each of
Messrs. Umsted and Brignole is entitled to receive a payment equal to his annual base salary. In the event of a change
in control, (i) each of Mr. Brignole and Mr. Umsted is due a payment equal to one-half of his annual base salary and 12 months of
continued health coverage, unless he is offered employment on at least similar terms and conditions as his current employment and he
refuses to accept such employment, in which case, no change in control payment or continued benefits will be due and (ii) Mr. Forman
is due a payment equal to one-half of his annual base salary and 12 months of continued health coverage, unless he is offered
employment on at least similar terms and conditions as his current employment and he refuses to accept such employment, in which
case, no change in control payment will be due. If any of Messrs. Umsted, Forman or Brignole is terminated in anticipation of
the change in control, then he is due a payment equal to one-half of his annual base salary plus an amount equal to his pro-rata
bonus earned through the date of termination and 12 months of continued health coverage.
Steven
C. Mitchener. In the event of a change of control, Mr. Mitchener is entitled to receive a payment equal to one-half of his
annual base salary if he is terminated in anticipation of the change in control or is not offered a position after the change
in control that includes the same base salary, comparable duties, title authority and responsibilities.
As of
the date of this proxy statement/prospectus, John Bobango has been offered an advisory position with Simmons for 18 months following
the closing of the Triumph merger for a fee of $660,000.
The
Triumph merger will also act to trigger accelerated vesting of outstanding options held by the seven executive officers named
above (and others) under the Triumph 2006 Incentive and Non-Qualified Stock Option Plan, Triumph 2012 Incentive and Non-Qualified
Stock Option Plan, and the Triumph 2017 Incentive and Non-Qualified Stock Option Plan. The amounts of the options will not be
affected by the Triumph merger, but the timing of the vesting of the options will be accelerated.
Incentive
Plans and Stock Options
The
Triumph merger will trigger the vesting of all issued and outstanding options, including any options issued to executives and
directors of Triumph, under the Triumph 2006 Incentive and Non-Qualified Stock Option Plan, Triumph 2012 Incentive and Non-Qualified
Stock Option Plan, or Triumph 2017 Incentive and Non-Qualified Stock Option Plan.
Under
the terms of the Triumph merger agreement, at the Triumph effective time, each Triumph stock option, whether vested or unvested,
that is outstanding and unexercised immediately prior to the Triumph effective time will be canceled and converted into the right
to receive from Simmons a cash payment per option share equal to the difference between (1) the fully diluted per share value
and (2) the exercise price of such Triumph stock option.
Indemnification
The
Triumph merger agreement provides that, for a period of six years after the Triumph effective time, Simmons will indemnify, defend
and hold harmless each of the present and former directors or officers of Triumph and its subsidiaries against all liabilities
arising out of actions or omissions arising out of such person’s services as director or officer of Triumph, or at Triumph’s
request, of another corporation, partnership, joint venture, trust or other enterprise, occurring at or prior to the Triumph effective
time to the fullest extent permitted under the Triumph charter and the Triumph bylaws in effect on the date of the Triumph merger
agreement (subject to applicable law), including provisions relating to the advancement of expenses incurred in the defense of
any litigation, provided that, in the case of an advancement of expenses, any indemnified party to whom expenses are advanced
provides a written undertaking to repay such advances if it is ultimately determined that such indemnified party is not entitled
to indemnification.
EXPERTS
The audited annual
consolidated financial statements of Simmons appearing in Simmons’ Annual Report on Form 10-K for the year ended December
31, 2020 and the effectiveness of Simmons’ internal control over financial reporting as of such date have been audited by
BKD, LLP, an independent registered public accounting firm, as set forth in its reports included therein, which are incorporated
herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports
given on the authority of such firm as experts in auditing and accounting.
With respect
to the unaudited interim consolidated financial information of Simmons appearing in its Quarterly Report on Form 10-Q for the
period ended March 31, 2021 that is incorporated herein by reference, BKD, LLP, Simmons’ independent registered public accounting
firm, has applied limited procedures in accordance with professional standards for review of such information. However, as stated
in its separate report included therein, BKD, LLP did not audit and it does not express an opinion on that interim financial information.
Because of the limited nature of the review procedures applied, the degree of reliance on its reports on such information should
be restricted. Pursuant to Rule 436(c) under the Securities Act, this report on Simmons’ unaudited interim consolidated
financial information should not be considered a part of the registration statement prepared or certified by its independent registered
public accounting firm within the meaning of Sections 7 and 11 of the Securities Act.
OTHER
MATTERS
No matters other
than the matters described in this proxy statement/prospectus are anticipated to be presented for action at the Landmark special
meeting or the Triumph special meeting or at any adjournment or postponement of the Landmark special meeting or the Triumph special
meeting.
SIMMONS
ANNUAL MEETING SHAREHOLDER PROPOSALS
Simmons shareholders
who intend to submit proposals pursuant to Rule 14a-8 of the Exchange Act to be presented at Simmons’ 2022 Annual Meeting
of Shareholders and included in Simmons’ proxy statement relating to such meeting must have submitted such proposals to
the Corporate Secretary of Simmons at Simmons’ principal executive offices no later than December 16, 2021. Such proposals
must also comply with the additional requirements of Rule 14a-8 of the Exchange Act (or any successor rule) to be eligible for
inclusion in the proxy statement for Simmons’ 2022 Annual Meeting of Shareholders.
In addition,
the Simmons bylaws provide that only such business (including, without limitation, the nomination of persons for election to the
Simmons board of directors) which is properly brought before a Simmons shareholder meeting will be conducted. For business (including,
without limitation, the nomination of persons for election to the Simons board of directors) to be properly brought before an
annual meeting of Simmons shareholders by a Simmons shareholder, the shareholder must provide notice to the Corporate Secretary
of Simmons at Simmons’ principal executive offices not later than 90 days nor earlier than 120 days prior to the first anniversary
of the prior year’s annual meeting of Simmons shareholders. In the event that Simmons did not hold an annual meeting of
the shareholders in the prior year or if the first anniversary of the prior year’s annual
meeting of Simmons shareholders is more
than 30 days before or after the date of the current year’s annual meeting of Simmons shareholders, the shareholder’s notice
is timely only if it is delivered to the Corporate Secretary of Simmons at the principal executive offices of Simmons no later
than the 10th day after Simmons publicly announces the date of the current year’s annual meeting of Simmons shareholders or the
90th day before the date of the current year’s annual meeting of Simmons shareholders, whichever is later. To be in proper written
form, a shareholder’s notice to Simmons’ Corporate Secretary must comply with all requirements contained in the Simmons bylaws,
a copy of which may be obtained upon written request to the Corporate Secretary of Simmons.
Accordingly,
a Simmons shareholder who intended to raise a proposal to be acted upon at Simmons’ 2022 Annual Meeting of Shareholders,
but who did not desire to include the same in Simmons’ 2022 proxy statement, must have provided written notice to Simmons’
Corporate Secretary no earlier than January 20, 2022 nor later than February 19, 2022. The persons named as proxies in Simmons’
proxy for Simmons’ 2022 Annual Meeting of Shareholders may exercise their discretionary authority to act upon any proposal
which is properly brought before a shareholder meeting, and Simmons reserves the right to reject, rule out of order or take other
appropriate action with respect to any proposal that does not comply with these and other applicable requirements.
LANDMARK
ANNUAL MEETING SHAREHOLDER PROPOSALS
Landmark
does not anticipate holding a 2022 annual meeting of Landmark shareholders if the Landmark merger is completed by the fourth quarter
of 2021. However, if the Landmark merger is not completed within the expected time frame, or at all, Landmark may hold an annual
meeting of its shareholders in 2022.
The Landmark
bylaws do not provide any express provisions regarding a shareholder’s right to make proposals or nominate directors. In
practice, the Landmark board of directors may consider any proposals submitted by a Landmark shareholder, including any nomination
of directors. Pursuant to the TBCA, the chairman presides shareholder meetings and determines the order or business and rules
for shareholder meetings. During Landmark shareholder meetings, shareholders may present proposals, subject to complying with
the order and rules of the meeting as may be established by the chairman.
Any Landmark
shareholder proposals should be sent to the attention of Landmark’s head of investor relations.
TRIUMPH
ANNUAL MEETING SHAREHOLDER PROPOSALS
Triumph does
not anticipate holding a 2022 annual meeting of Triumph shareholders if the Triumph merger is completed by the fourth quarter
of 2021. However, if the Triumph merger is not completed within the expected time frame, or at all, Triumph may hold an annual
meeting of its shareholders in 2022.
The Triumph
bylaws do not provide any express provisions regarding a shareholder’s right to make proposals or nominate directors. In
practice, the Triumph board of directors may consider any proposals submitted by a Triumph shareholder, including any nomination
of directors. Pursuant to the TBCA, the chairman or designated chair presides shareholder meetings and determines the order or
business and rules for shareholder meetings. During Triumph shareholder meetings, shareholders may present proposals, subject
to complying with the order and rules of the meeting as may be established by the chairman or designated chair.
All Triumph
shareholder proposals should be sent to the attention of Michael J. McCarver of Triumph.
WHERE
YOU CAN FIND MORE INFORMATION
Simmons has filed
with the SEC a registration statement under the Securities Act that registers the offer and sale to Landmark shareholders and
Triumph shareholders of the shares of Simmons common stock to be issued in connection with the mergers. This proxy statement/prospectus
is a part of that registration statement and constitutes the prospectus of Simmons in addition to being a proxy statement for
Landmark shareholders and Triumph shareholders. The registration statement, including this proxy statement/prospectus and the
attached annexes and exhibits, contains additional relevant information about Simmons and Simmons common stock.
Simmons also
files reports, proxy statements and other information with the SEC under the Exchange Act.
The SEC maintains
a website that contains reports, proxy statements and other information about issuers, such as Simmons, that file electronically
with the SEC. The address of the site is www.sec.gov. The reports and other information filed by Simmons with the SEC are also
available at Simmons’ website at https://simmonsbank.com/. The website addresses of the SEC and Simmons are included as
inactive textual references only. Except as specifically incorporated by reference into this proxy statement/prospectus, information
on those websites is not part of this proxy statement/prospectus.
The SEC allows
Simmons to incorporate by reference information into this proxy statement/prospectus. This means that Simmons can disclose important
information to you by referring you to another document filed separately with the SEC. The information incorporated by reference
is considered to be a part of this proxy statement/prospectus, except for any information that is superseded by information that
is included directly in this proxy statement/prospectus.
This proxy statement/prospectus
incorporates by reference the documents listed below that Simmons previously filed with the SEC. They contain important information
about the companies and their financial condition.
Simmons
SEC Filings (SEC File No. 000-06253)
|
|
Period
or Date Filed
|
Annual
Report on Form 10-K
|
|
Year
ended December 31, 2020, filed with the SEC on February 25, 2021.
|
|
|
|
Quarterly
Reports on Form 10-Q
|
|
Quarter
ended March 31, 2021, filed with the SEC on May 6, 2021.
|
|
|
|
Current
Reports on Form 8-K
|
|
Filed with the
SEC on January
26, 2021, March
3, 2021, April
1, 2021, April
22, 2021, May
21, 2021, May
25, 2021, June
7, 2021 and July 27, 2021 (other than those portions of the documents deemed
to be furnished and not filed).
|
|
|
|
Description
of Simmons common stock
|
|
The
description of the Simmons common stock is contained in Simmons’ prospectus filed pursuant to Rule 424(b)(5) under the
Securities Act on March 31, 2021 set forth in the section entitled “Description of Common Stock.”
|
|
|
|
In addition,
Simmons also incorporates by reference additional documents that it files with the SEC under Sections 13(a), 13(c), 14 and 15(d)
of the Exchange Act between the date of this proxy statement/prospectus and the date the offerings are terminated, provided that
Simmons is not incorporating by reference any information furnished to, but not filed with, the SEC.
Except
where the context otherwise indicates, information contained in this document regarding Simmons has been provided by Simmons,
information contained in this document regarding Landmark has been provided by Landmark and information contained in this document
regarding Triumph has been provided by Triumph.
Documents incorporated
by reference into this proxy statement/prospectus are available from Simmons, without charge, excluding any exhibits to those
documents unless the exhibit is specifically incorporated by reference as an exhibit in this proxy statement/prospectus. You can
obtain documents incorporated by reference into this proxy statement/prospectus or other relevant corporate documents referenced
in this proxy statement/prospectus related to Simmons by requesting them in writing or by telephone at the following address and
phone number:
Simmons
First National Corporation
P.O. Box
7009
Pine Bluff,
Arkansas 71611
Attention:
George Makris III
Telephone:
(870) 541-1000
Neither Landmark
nor Triumph has a class of securities registered under Section 12 of the Exchange Act, and therefore neither Landmark nor Triumph
is subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act and, accordingly, neither Landmark nor
Triumph files documents or reports with the SEC.
If you are a
Landmark or Triumph shareholder and (a) have any questions concerning (i) the Landmark special meeting, the Landmark merger or
the Landmark merger agreement, (ii) the Triumph special meeting, the Triumph merger or the Triumph merger agreement or (iii) the
proxy statement/prospectus, (b) would like additional copies of the proxy statement/prospectus without charge or (c) need help
voting your shares of Landmark common stock or Triumph common stock, please contact Landmark or Triumph, as applicable, at the
following address:
Landmark
Community Bank
5880 Ridge
Bend Road
Memphis,
Tennessee 38120
Attention:
James P. “Jake” Farrell
Telephone:
(901) 457-3111
Email: jakefarrell@landmarkbanktn.com
or
Attention:
Charles E “Buddy” Dickey
Telephone:
(901) 457-3123
Email: cdickey@landmarkbanktn.com
Triumph
Bancshares, Inc.
5699 Poplar
Avenue
Memphis,
Tennessee 38119
Attention:
Michael J. McCarver
Telephone:
(901) 333-8802
These documents
are available without charge upon written or oral request. To obtain timely delivery of these documents, Landmark shareholders
must request them no later than August 30 , 2021 in order to receive them before the Landmark special meeting and Triumph
shareholders must request them no later than August 30 , 2021 in order to receive them before the Triumph special meeting.
If you request any documents from Simmons, Landmark or Triumph, then Simmons, Landmark or Triumph (as applicable) will mail
them to you by first class mail, or another equally prompt means, within one business day after receiving your request.
No one has been
authorized to provide you with information that is different from that contained in, or incorporated by reference into, this document.
This document is dated [ ], 2021 and you should assume that the information in this document is accurate only as of such date.
You should assume that the information
incorporated by reference into this document is accurate as of the date of such document.
Neither the mailing of this document to the shareholders of Landmark or Triumph nor the issuance by Simmons of shares of Simmons
common stock in connection with the mergers will create any implication to the contrary.
This proxy
statement/prospectus does not constitute an offer to sell, or a solicitation of an offer to buy, any securities, or the solicitation
of a proxy, in any jurisdiction to or from any person to whom or from whom it is unlawful to make any such offer or solicitation
in that jurisdiction.
Annex A
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
SIMMONS FIRST NATIONAL CORPORATION,
SIMMONS BANK
AND
LANDMARK COMMUNITY BANK
Dated as of June 4, 2021
TABLE OF CONTENTS
Exhibit
A - Form of Landmark Voting Agreement
Landmark’s
Disclosure Memorandum
Simmons’s
Disclosure Memorandum
AGREEMENT
AND PLAN OF MERGER
THIS
AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into as of June 4, 2021, by and among
Simmons First National Corporation, an Arkansas corporation (“Simmons”), Simmons Bank, an Arkansas state-chartered
bank and wholly owned subsidiary of Simmons (“Simmons Bank”) and Landmark Community Bank (“Landmark”),
a Tennessee state-chartered bank.
Preamble
The
respective boards of directors of Landmark, Simmons and Simmons Bank have approved and adopted this Agreement and determined that
this Agreement and the transactions contemplated hereby are advisable and in the best interests of their respective companies
and their respective shareholders. Under the terms and subject to the conditions of this Agreement and in accordance with applicable
provisions of the Arkansas Banking Code of 1997, as amended (the “ABC”), and the Tennessee Banking Act (the
“TBA”), Landmark will merge with and into Simmons Bank (the “Merger”), with Simmons Bank
as the surviving bank in the Merger (sometimes referred to in such capacity as the “Surviving Bank”).
As
a condition and an inducement for Simmons and Simmons Bank to enter into this Agreement, each of the directors and certain executive
officers of Landmark has simultaneously with the execution of this Agreement entered into a Support and Non-Competition Agreement
(each a “Voting Agreement” and collectively, the “Voting Agreements”) in connection with
the Merger, in the form of Exhibit A.
The
Parties intend that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Internal
Revenue Code, and the Parties intend that this Agreement will be adopted as a “plan of reorganization” within the
meaning of Sections 354 and 361 of the Internal Revenue Code.
The
Parties desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to
prescribe certain conditions to the Merger.
Capitalized
terms used in this Agreement and not otherwise defined herein are defined in Section 10.1 of this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual warranties, representations, covenants, and agreements set forth
herein, and intending to be legally bound hereby, the Parties agree as follows:
ARTICLE
1
TRANSACTIONS AND TERMS OF MERGER
1.1. Merger.
Under
the terms and subject to the conditions of this Agreement, at the Effective Time, Landmark shall be merged with and into Simmons
Bank in accordance with applicable provisions of the ABC and the TBA with the effects set forth in the ABC and the TBA. Simmons
Bank shall be the surviving bank resulting from the Merger and shall succeed to and assume all the rights and obligations of Landmark
in accordance with the ABC and the TBA. Upon consummation of the Merger, the separate corporate existence of Landmark shall terminate.
1.2.
Time and Place of Closing.
The
closing of the transactions contemplated hereby (the “Closing”) will take place at the offices of Simmons,
located at 601 E. 3rd Street, Little Rock, Arkansas, 72201, or by electronic exchange of documents at 10:00 A.M., Central
Time, on the date that the Effective Time occurs, or at such other date and time as the Parties, acting through their authorized
officers, may mutually agree in writing (the “Closing Date”).
1.3.
Effective Time.
The
Merger shall become effective (the “Effective Time”) on the date and at the time specified in the articles
of merger to be filed with the Bank Commissioner of the State of Arkansas and the articles of merger to be filed with the Secretary
of State of the State of Tennessee. Upon the terms and subject to the conditions hereof, unless otherwise mutually agreed upon
in writing by the authorized officers of each Party, the Parties shall cause the Effective Time to occur by the later of (i) October
8, 2021, or (ii) a date within 30 days following satisfaction or waiver (subject to applicable Law) of the last to occur of the
conditions set forth in ARTICLE 8 (other than those conditions that by their nature are to be satisfied or waived at the Effective
Time) as determined by Simmons.
1.4.
Charter.
The
Articles of Agreement and Incorporation of Simmons Bank in effect immediately prior to the Effective Time shall be the articles
of incorporation of the Surviving Bank until duly amended or repealed in accordance with its terms and applicable Law.
1.5.
Bylaws.
The
Bylaws of Simmons Bank in effect immediately prior to the Effective Time shall be the bylaws of the Surviving Bank until duly
amended or repealed in accordance with its terms and applicable Law.
1.6.
Directors and Officers.
The
directors of Simmons Bank in office immediately prior to the Effective Time shall serve as the directors of the Surviving Bank
from and after the Effective Time in accordance with the bylaws of the Surviving Bank. The officers of Simmons Bank in office
immediately prior to the Effective Time shall serve as the officers of the Surviving Bank from and after the Effective Time in
accordance with the bylaws of the Surviving Bank.
ARTICLE
2
MANNER OF CONVERTING SHARES
2.1.
Conversion of Shares.
Subject
to the provisions of this ARTICLE 2, at the Effective Time, by virtue of the Merger and without any action on the part of Simmons,
Simmons Bank, Landmark or the shareholders of any of the foregoing, the shares of Landmark and Simmons shall be converted as follows
(for the avoidance of doubt, the capital stock of Simmons Bank shall not be affected by the Merger):
(a)
Each share of capital stock of Simmons issued and outstanding immediately prior to the Effective Time shall remain an issued
and outstanding share of capital stock of Simmons from and after the Effective Time and shall not be affected by the Merger.
(b)
Each share of Landmark capital stock issued and outstanding immediately prior to the Effective Time that is held by Landmark,
any Landmark Subsidiary, Simmons or any Simmons Subsidiary (in each case other than shares held in any Employee Benefit Plans
or related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted)
(collectively, the “Canceled Shares”) shall automatically be canceled and retired and shall cease to exist,
and no payment shall be made with respect thereto.
(c)
Each share of Landmark Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled
Shares and the Landmark Dissenting Shares), subject to Section 2.3(b), shall be converted into the right to receive,
without interest:
(i)
the Per Share Cash Consideration; and
(ii)
the Per Share Stock Consideration.
(d)
Each share of Landmark Common Stock, when so converted pursuant to Section 2.1(c), shall automatically be canceled and
retired and shall cease to exist as of the Effective Time, and each certificate (an “Old Certificate”, it being
understood that any reference herein to “Old Certificate” shall be deemed to include reference to book-entry account
statements relating to ownership of shares of Landmark Common Stock (a “Book-Entry Share”)) registered in the
transfer books of Landmark that immediately prior to the Effective Time represented shares of Landmark Common Stock shall thereafter
cease to have any rights with respect to such Landmark Common Stock other than the right to receive the Merger Consideration in
accordance with ARTICLE 3.
2.2.
Anti-Dilution Provisions.
In
the event Simmons changes the number of shares of Simmons Common Stock issued and outstanding between the date of this Agreement
and the Effective Time as a result of a stock split, stock dividend, or similar recapitalization with respect to such stock and
the record date therefor (in the case of a stock dividend) or the effective date thereof (in the case of a stock split or similar
recapitalization for which a record date is not established) shall be between the date of this Agreement and the Effective Time,
the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully
the effect of any such change.
2.3.
Treatment of Landmark Equity Rights.
(a)
At the Effective Time, each option granted by Landmark to purchase shares of Landmark Common Stock under the Landmark Non-Qualified
Stock Option Plan, whether vested or unvested, that is outstanding and unexercised immediately prior to the Effective Time (a
“Landmark Stock Option”) shall be canceled and converted into the right to receive from Simmons a cash payment
(“Landmark Stock Option Payout”) equal to the applicable Landmark Stock Option Amount. Notwithstanding the
foregoing, any Landmark Stock Option with an Option Exercise Price that equals or exceeds the Fully Diluted Per Share Value shall
be canceled with no consideration being paid to the optionholder with respect to such Landmark Stock Option.
(b)
Notwithstanding anything herein to the contrary, if the Cash Consideration is less than $0.00, then the Aggregate Cash
Consideration shall be increased such that the Cash Consideration equals $0.00. The amount by which the Aggregate Cash Consideration
is increased shall be referred to as the “Aggregate Cash Increase.” If the Aggregate Cash Consideration is
increased, then the Stock Consideration shall be decreased by the number of shares of Simmons Common Stock equal to the quotient
obtained by dividing the Aggregate Cash Increase by the Average Closing Price (for the avoidance of doubt, if the quotient includes
a fractional share, then the quotient shall be rounded up to the next whole share (for example, if the quotient is 1,000.34, then
the quotient shall be rounded up to 1,001)).
(c)
Without limiting Section 7.8 hereof, the board of directors of Landmark or any committee thereof, as applicable, shall,
prior to the Closing and effective as of no later than the day immediately prior to, and contingent upon, the Closing adopt any
resolutions and take any actions, and cause any actions to be taken, that are necessary or, in the reasonable determination of
Simmons, advisable to effectuate the provisions of this Section 2.3.
2.4.
Fractional Shares.
No
certificate, book-entry share or scrip representing fractional shares of Simmons Common Stock shall be issued upon the surrender
for exchange of Old Certificates, no dividend or distribution with respect to Simmons Common Stock shall be payable on or with
respect to any such fractional share interests, and such fractional share interests will not entitle the owner thereof to vote
or to any other rights of a shareholder of Simmons. Notwithstanding any other provision of this Agreement, each holder of shares
of Landmark Common Stock exchanged pursuant to the Merger who would otherwise have been entitled to receive a fraction of a share
of Simmons Common Stock (after taking into account all Old Certificates delivered by such Holder) shall receive, in lieu thereof,
a cash payment rounded up to the nearest whole cent (without interest), which payment shall be determined by multiplying (i) the
fraction of a share (rounded to the nearest thousandth when expressed in decimal form) of Simmons Common Stock that such holder
of shares of Landmark Common Stock would otherwise have been entitled to receive pursuant to Section 2.1(c) by (ii) the Average
Closing Price (the “Fractional Share Payment”).
ARTICLE
3
EXCHANGE OF SHARES
3.1.
Exchange Procedures.
(a)
Deposit of Exchange Fund. At or promptly following the Effective Time, Simmons shall deposit, or shall cause to
be deposited, with Computershare, Simmons’s transfer agent, or another exchange agent reasonably acceptable to Simmons (the
“Exchange Agent”), for the benefit of the holders of record of shares of Landmark Common Stock (excluding the
Canceled Shares) issued and outstanding immediately prior to the Effective Time (collectively, the “Holders”),
for exchange in accordance with this ARTICLE 3, (i) certificates or, at Simmons’s option, evidence of Simmons Common Stock
in book-entry form issuable pursuant to Section 2.1(c) (collectively referred to as “Simmons Certificates”)
for shares of Simmons Common Stock equal to the Stock Consideration and (ii) immediately available funds for (A) the Cash Consideration,
(B) any Fractional Share Payments to the extent then determinable and (C), after the Effective Time, if applicable, any dividends
or distributions which such Holders have the right to receive pursuant to Section 3.1(d) (collectively, the “Exchange
Fund”). Simmons shall instruct the Exchange Agent to timely pay the Exchange Fund in accordance with this Agreement.
The cash portion of the Exchange Fund shall be invested by the Exchange Agent as directed by Simmons or the Surviving Bank. Interest
and other income on the Exchange Fund shall be the sole and exclusive property of Simmons and the Surviving Bank and shall be
paid to Simmons or the Surviving Bank, as Simmons directs. No investment of the Exchange Fund shall relieve Simmons, the Surviving
Bank or the Exchange Agent from making the payments required by this Agreement and following any losses from any such investment,
Simmons shall promptly provide additional funds to the Exchange Agent to the extent necessary to satisfy Simmons’s obligations
hereunder for the benefit of the Holders, which additional funds will be deemed to be part of the Exchange Fund.
(b)
Delivery of Merger Consideration. As soon as reasonably practicable after the Effective Time, the Exchange Agent
shall mail to each Holder of an Old Certificate (including, for the avoidance of doubt, any Book-Entry Share, if required by the
Exchange Agent or at the request of Simmons) a notice advising such Holders of the effectiveness of the Merger, including appropriate
transmittal materials specifying that delivery shall be effected, and risk of loss and title to the Old Certificates (including,
for the avoidance of doubt,
Book-Entry Shares, if applicable), shall pass, only upon proper delivery of the Old Certificates (including,
for the avoidance of doubt, Book-Entry Shares, if applicable), and instructions for surrendering the Old Certificates (including,
for the avoidance of doubt, Book-Entry Shares, if applicable), to the Exchange Agent (such materials and instructions to include
customary provisions with respect to delivery of an “agent’s message” with respect to Book-Entry Shares). Upon
proper surrender of an Old Certificate (including, for the avoidance of doubt, Book-Entry Shares, if applicable), for exchange
and cancellation to the Exchange Agent, together with the appropriate transmittal materials, duly completed and validly executed
in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the Holder
of such Old Certificate shall be entitled to receive in exchange therefor the Merger Consideration and such Old Certificate so
surrendered shall forthwith be canceled. No interest will be paid or accrued for the benefit of Holders on the Merger Consideration
payable upon the surrender of the Old Certificates. The Per Share Stock Consideration delivered to each Holder shall be in non-certificated
book-entry form.
(c)
Share Transfer Books. At the Effective Time, the share transfer books of Landmark shall be closed, and thereafter
there shall be no further registration of transfers of shares of Landmark Common Stock. From and after the Effective Time, Holders
who held shares of Landmark Common Stock immediately prior to the Effective Time shall cease to have rights with respect to such
shares, except as otherwise provided for herein. Until surrendered for exchange in accordance with the provisions of this Section
3.1, each Old Certificate (including, for the avoidance of doubt, each Book-Entry Share) theretofore representing shares of Landmark
Common Stock (other than the Canceled Shares) shall from and after the Effective Time represent for all purposes only the right
to receive the consideration provided in this Agreement in exchange therefor. On or after the Effective Time, any Old Certificates
presented to the Exchange Agent, Simmons or the Surviving Bank for any reason shall be canceled and exchanged for the Merger Consideration.
(d)
Dividends with Respect to Simmons Common Stock. No dividends or other distributions declared with respect to Simmons
Common Stock with a record date after the Effective Time shall be paid to the Holder of any unsurrendered Old Certificate with
respect to the whole shares of Simmons Common Stock issuable with respect to such Old Certificate in accordance with this Agreement
until the surrender of such Old Certificate (or affidavit of loss in lieu thereof) in accordance with this Agreement. Subject
to applicable Laws, following surrender of any such Old Certificate (or affidavit of loss and other documentation required by
the Exchange Agent, Simmons, or the Surviving Bank hereunder in lieu thereof) there shall be paid to the record holder of the
whole shares of Simmons Common Stock, if any, issued in exchange therefor, without interest, (i) all dividends and other distributions
payable in respect of any such whole shares of Simmons Common Stock with a record date after the Effective Time and a payment
date on or prior to the date of such surrender and not previously paid and (ii) at the appropriate payment date, the amount of
dividends or other distributions with a record date after the Effective Time but prior to such surrender and with a payment date
subsequent to such surrender payable with respect to such shares of Simmons Common Stock.
(e)
Termination of Exchange Fund. Any portion of the Exchange Fund (including any interest and other income received
with respect thereto) which remains undistributed to the former Holders on the first anniversary of the Effective Time shall be
delivered to Simmons; and any former Holders who have not theretofore received any Merger Consideration to which they are entitled
under this Agreement shall thereafter look only to Simmons and the Surviving Bank for payment of their claims with respect thereto.
(f)
No Liability. If any Old Certificates shall not have been surrendered (or canceled) prior to three years after the
Effective Time (or immediately prior to such earlier date on which the Merger Consideration would escheat to or become the property
of any Regulatory Authority), any such Merger Consideration in respect thereof shall, to the extent permitted by applicable Law,
become the property of Simmons, free and clear of all claims or interest of any Person previously entitled thereto or their successors,
assigns, or personal representatives. None of Simmons, Landmark, the Surviving Bank or the Exchange Agent, or any employee, officer,
director, agent or Affiliate of any of them, shall be liable to any Holder in respect of any amount that
would have otherwise
been payable in respect of any Old Certificate from the Exchange Fund delivered to a public official pursuant to any applicable
abandoned property, escheat or similar Law.
(g)
Withholding Rights. Each and any of Simmons, the Surviving Bank or the Exchange Agent, as applicable, shall be entitled
to deduct and withhold from the Merger Consideration, Landmark Stock Option Payouts, or any other amounts or property otherwise
payable or distributable to any Person pursuant to this Agreement, such amounts or property (or portions thereof) as Simmons,
the Surviving Bank or the Exchange Agent is required to deduct and withhold with respect to the making of such payment or distribution
under the Internal Revenue Code, and the rules and regulations promulgated thereunder, or any provision of applicable Tax Law.
Any amounts so deducted or withheld and remitted to the appropriate Regulatory Authority by Simmons, the Surviving Bank, or the
Exchange Agent, as applicable, shall be treated for all purposes of this Agreement as having been paid to the Person in respect
of which such deduction and withholding was made by Simmons, the Surviving Bank, or the Exchange Agent, as applicable.
(h)
Lost Old Certificates. If any Old Certificate shall have been lost, stolen or destroyed, then upon the making of
an affidavit of that fact by the Person claiming such Old Certificate, as applicable, to be lost, stolen or destroyed and, if
required by the Exchange Agent, Simmons, or the Surviving Bank, the posting by such Person of a bond in such reasonable and customary
amount as the Exchange Agent, Simmons, or the Surviving Bank may direct, as indemnity against any claim that may be made against
it with respect to such Old Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Old Certificate
the Merger Consideration to which the Holder thereof is entitled pursuant to this Agreement.
(i)
Change in Name on Old Certificate. If any Simmons Certificate is to be issued in a name other than that in which
the Old Certificates surrendered (or canceled) in exchange therefor is or are registered, it shall be a condition of the issuance
thereof that the Old Certificates so surrendered (or canceled) shall be properly endorsed (or accompanied by an appropriate instrument
of transfer) and otherwise in proper form for transfer, and that the Person requesting such exchange shall pay to the Exchange
Agent, Simmons or the Surviving Bank in advance any transfer or other similar Taxes required by reason of the issuance of a Simmons
Certificate in any name other than that of the registered Holder of the Old Certificates surrendered (or canceled), or required
for any other reason, or shall establish to the satisfaction of the Exchange Agent, Simmons and the Surviving Bank that such Tax
has been paid or is not payable.
3.2.
Dissenting Shareholders.
(a)
Notwithstanding anything in this Agreement to the contrary, shares of Landmark Common Stock that are issued and outstanding
immediately prior to the Effective Time and which are held by any Holder who is entitled to demand and properly demands appraisal
of such shares of Landmark Common Stock pursuant to, and who complies in all respects with, the provisions of Section 48-23-101
et seq. of the Tennessee Business Corporation Act (“Section 48-23-101 et seq.”) (the “Landmark Dissenting
Shareholders”), shall not be converted into or be exchangeable for the right to receive any of the consideration as
specified in this Agreement (the “Landmark Dissenting Shares”), but instead such Holder shall be entitled to
payment of the fair value of such Landmark Dissenting Shares in accordance with the provisions of Section 48-23-101 et seq. At
the Effective Time, all Landmark Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired
and shall cease to exist, and each Holder of Landmark Dissenting Shares shall cease to have any rights with respect thereto, except
the right to receive the fair value of such Landmark Dissenting Shares in accordance with the provisions of Section 48-23-101
et seq. Notwithstanding the foregoing, if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the
right to appraisal under Section 48-23-101 et seq., or a court of competent jurisdiction shall determine that such Holder is not
entitled to the relief provided by Section 48-23-101 et seq., then the right of such Holder to be paid the fair value of such
Holder’s Landmark Dissenting Shares under Section 48-23-101 et seq. shall cease and such Landmark Dissenting Shares shall
be deemed to have been converted at the Effective Time into, and shall have become, the right to receive the Merger Consideration.
(b)
Landmark shall give Simmons prompt written notice (but in any event within two Business Days) of any demands for appraisal
of any shares of Landmark Common Stock and any withdrawals of such demands, and Simmons shall have the right to participate in
and direct all negotiations and proceedings with respect to such demands. Landmark shall not, except with the prior written consent
of Simmons, voluntarily make any payment with respect to, or settle, or offer or agree to settle, any such demand for payment.
ARTICLE
4
REPRESENTATIONS AND WARRANTIES OF LANDMARK
Except
as Previously Disclosed, Landmark hereby represents and warrants to Simmons as follows:
4.1.
Organization, Standing, and Power.
Landmark
is duly organized, validly existing and in good standing under the Laws of the State of Tennessee, is authorized under the Laws
of the State of Tennessee to engage in its business as currently conducted and otherwise has the corporate power and authority
to own, lease and operate all of its Assets and to conduct its business in the manner in which its business is now being conducted.
Landmark is authorized by the Tennessee Department of Financial Institutions (“TDFI”) and the Federal Deposit
Insurance Corporation (the “FDIC”) to engage in the business of banking as a state-chartered bank. Landmark
is in good standing in each jurisdiction in which its ownership of Assets or conduct of business requires such qualification,
except where failure to be so qualified has not had or would not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect on Landmark. True, complete and correct copies of the Charter and Bylaws of Landmark, each
as in effect as of the date of this Agreement, have been delivered or made available to Simmons. The Charter and Bylaws of Landmark
comply with applicable Law.
4.2.
Authority of Landmark; No Breach by Agreement.
(a)
Authority. Landmark has the corporate power and authority necessary to execute, deliver, and, other than with respect
to the Merger, perform this Agreement, and with respect to the Merger, upon the approval of this Agreement and the Merger by the
affirmative vote of at least a majority of the outstanding shares of Landmark Common Stock entitled to vote on this Agreement
and the Merger as contemplated by Section 7.1 (the “Landmark Shareholder Approval”) and the Requisite Regulatory
Approvals, to perform its obligations under this Agreement and to consummate the transactions contemplated hereby. The execution,
delivery, and performance of this Agreement and the consummation of the transactions contemplated herein, including the Merger,
have been duly and validly authorized and approved by all necessary corporate action in respect thereof on the part of Landmark
(including approval by and a determination by all of the members of the board of directors of Landmark that this Agreement is
advisable and in the best interests of Landmark’s shareholders and directing the submission of this Agreement to a vote
at a meeting of shareholders of Landmark), subject to the Landmark Shareholder Approval. This Agreement has been duly executed
and delivered by Landmark. Subject to the Landmark Shareholder Approval, and assuming the due authorization, execution and delivery
by Simmons and Simmons Bank, this Agreement represents a legal, valid, and binding obligation of Landmark, enforceable against
Landmark in accordance with its terms (except in all cases as such enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, receivership, conservatorship, moratorium, or similar Laws affecting the enforcement of creditors’
rights generally and except that the availability of the equitable remedy of specific performance or injunctive relief is subject
to the discretion of the court before which any proceeding may be brought (the “Bankruptcy and Equity Exceptions”)).
(b)
No Conflicts. Subject to the receipt of the Landmark Shareholder Approval, neither the execution and delivery of
this Agreement by Landmark nor the consummation by Landmark of the transactions contemplated hereby, nor compliance by Landmark
with any of the provisions hereof, will (i) conflict with or result in a breach of any provision of the Charter, Bylaws or
other governing instruments of Landmark, or any
resolution adopted by the board of directors or the shareholders of any Landmark
Entity, or (ii) subject to receipt of the Requisite Regulatory Approvals, (x) violate any Law applicable to any Landmark
Entity or any of their respective Assets or (y) violate, conflict with, constitute or result in a Default under or the loss of
any benefit under, or result in the creation of any Lien upon any of the respective Assets of any Landmark Entity under any of
the terms, conditions or provisions of any Contract or Permit of any Landmark Entity or under which any of their respective Assets
may be bound, except in the case of clause (y) above where such violations, conflicts or Defaults have not had or would not reasonably
be expected to have, either individually or in the aggregate, a Material Adverse Effect on Landmark and subject to the receipt
of the consents of counterparties to the Contracts listed in Section 4.2 of Landmark’s Disclosure Memorandum (the “Contract
Consents”).
(c)
Consents. Other than in connection or compliance with the provisions of the Securities Laws (including the filing
and declaration of effectiveness of the Registration Statement), applicable state corporate and securities Laws, the rules of
Nasdaq, the TBA, the ABC, the Federal Deposit Insurance Act (the “FDIA”), the BHC Act, the Requisite Regulatory
Approvals, and the Contract Consents, no notice to, filing with, or Consent of, any Regulatory Authority or any third party is
necessary for the consummation by Landmark of the Merger and the other transactions contemplated by this Agreement. As of the
date hereof, Landmark has no Knowledge of any reason why the Requisite Regulatory Approvals will not be received in order to permit
consummation of the Merger on a timely basis.
(d)
Landmark Debt. Landmark has no debt that is secured by Landmark capital stock.
4.3.
Capitalization of Landmark.
(a)
Ownership. The authorized capital stock of Landmark consists of 50,000,000 shares of Landmark Common Stock, no par
value per share. As of the close of business on June 3, 2021, (i) 21,447,380 shares of Landmark Common Stock (excluding treasury
shares) were issued and outstanding and (ii) no shares of Landmark Common Stock were held by Landmark in its treasury, (iii) except
as otherwise provided in this Section 4.3(a), no shares of Landmark Common Stock were reserved for issuance upon the exercise
of outstanding Equity Rights of Landmark and (iv) 1,763,250 shares of Landmark Common Stock were reserved for issuance upon the
exercise of outstanding Landmark Stock Options. As of the Effective Time, no more than (A) 23,210,630 shares of Landmark Common
Stock will be issued and outstanding (excluding treasury shares), (B) 0 shares of Landmark Common Stock will be held by Landmark
in its treasury, and (C) except as otherwise provided in this Section 4.3(a), 0 shares of Landmark Common Stock will be reserved
for issuance upon the exercise of outstanding Equity Rights of Landmark; and as of immediately prior to the Effective Time, there
will be no more than 1,763,250 Landmark Stock Options Outstanding. Additionally, as of immediately prior to the Effective Time,
there will be, in the aggregate, no more than 23,210,630 shares of Landmark Common Stock that are either issued and outstanding
or reserved for issuance upon the exercise of Landmark Stock Options.
(b)
Other Rights or Obligations. All of the issued and outstanding shares of capital stock (and other equity interest,
including Landmark Stock Options) of Landmark are duly authorized and validly issued and outstanding, and are fully paid and nonassessable
and free of preemptive rights, with no personal liability attaching to the ownership thereof. None of the outstanding shares of
capital stock (or other equity interest, including Landmark Stock Options) of Landmark has been issued in violation of or subject
to any preemptive rights or other rights to subscribe for or purchase securities of the current or past shareholders of Landmark.
The deposits in Landmark are insured by the FDIC through the Deposit Insurance Fund to the maximum amount permitted by applicable
Law and all premiums and assessments required to be paid in connection therewith have been paid when due. No proceedings for the
revocation or termination of such deposit insurance are pending or, to the Knowledge of Landmark, threatened.
(c)
Outstanding Equity Rights. Other than the Landmark Stock Options outstanding as of the date of this Agreement and
set forth in Sections 4.3(a)(iii) and 4.3(a)(iv), there are no (i) existing Equity
Rights with respect to the securities of Landmark,
(ii) Contracts under which Landmark is or may become obligated to sell, issue, deliver, transfer or otherwise dispose of or redeem,
purchase or otherwise acquire any securities of Landmark, (iii) Contracts under which Landmark is or may become obligated to register
shares of Landmark’s capital stock or other securities under the Securities Act, (iv) shareholder agreements, voting trusts
or other agreements, arrangements or understandings to which Landmark is a party or of which Landmark has Knowledge, that may
reasonably be expected to affect the exercise of voting or any other rights with respect to the capital stock of Landmark or (v)
outstanding bonds, debentures, notes or other indebtedness having the right to vote (or which are convertible into, or exchangeable
for, securities having the right to vote) on any matters on which the shareholders of Landmark may vote. No Landmark Subsidiary
owns any capital stock of Landmark.
4.4.
Landmark Subsidiaries.
(a)
Ownership. Each Landmark Subsidiary is duly organized, validly existing and in good standing under the Laws of the
State of its organization, is authorized under applicable Laws to engage in its business as now conducted and otherwise has the
corporate (or comparable) power and authority to own or lease all of its Assets and to conduct its business in the manner in which
its business is now being conducted. Landmark does not have any Subsidiaries nor own any equity interests in any other Person
other than the entities set forth in Section 4.4 of Landmark’s Disclosure Memorandum.
(b)
Other Rights or Obligations. Landmark owns all of the issued and outstanding shares of capital stock (and other
equity interests) of the Landmark Subsidiaries. All of the issued and outstanding shares of capital stock (and other equity interests)
of each Landmark Subsidiary are duly authorized and validly issued and outstanding, and are fully paid and nonassessable and free
of preemptive rights, with no personal liability attaching to the ownership thereof, and are owned by Landmark free and clear
of any Lien. None of the outstanding shares of capital stock (or other equity interests) of each Landmark Subsidiary has been
issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities of the current
or past shareholders or equity interest holder of each Landmark Subsidiary. The articles of incorporation or association, certificate
of organization, bylaws, or other governing documents of each Landmark Subsidiary comply with applicable Law.
(c)
Outstanding Equity Rights. There are no (i) existing Equity Rights with respect to the securities of any Landmark
Subsidiary, (ii) Contracts under which any Landmark Subsidiary are or may become obligated to sell, issue, deliver, transfer or
otherwise dispose of or redeem, purchase or otherwise acquire any securities of any Landmark Subsidiary, (iii) Contracts under
which any Landmark Subsidiary is or may become obligated to register shares of any Landmark Subsidiary’s capital stock or
other securities under the Securities Act, (iv) shareholder agreements, voting trusts or other agreements, arrangements or understandings
to which any Landmark Subsidiary is a party or of which Landmark has Knowledge, that may reasonably be expected to affect the
exercise of voting or any other rights with respect to the capital stock of any Landmark Subsidiary, or (v) outstanding bonds,
debentures, notes or other indebtedness having the right to vote (or which are convertible into, or exchangeable for, securities
having the right to vote) on any matters on which the shareholders of any Landmark Subsidiary may vote.
4.5.
Regulatory Reports.
Landmark
has filed on a timely basis, all forms, filings, registrations, submissions, statements, certifications, returns, information,
data, reports and documents required to be filed or furnished by it with the TDFI, the FDIC, the Federal Reserve, and any other
applicable Regulatory Authority, as the case may be, all reports, returns, filings, information, data, registrations, submissions,
and statements, required to be filed under any applicable Law, including any and all federal and state banking Laws, and such
reports were complete and accurate in all material respects and in compliance in all material respects with the requirements of
any applicable Law. Subject to Section 10.15, there (i) is no unresolved violation, criticism, or exception by any Regulatory
Authority with respect to any report or statement relating to any examinations, inspections or investigations of any Landmark
Entity and (ii) has been no formal or informal inquiries by, or disagreements or disputes with, any Regulatory Authority with
respect to the business, operations, policies or procedures of any Landmark Entity. Subject to Section 10.15 and except for normal
examinations conducted by a Regulatory Authority in the Ordinary Course, no Regulatory Authority has initiated or has pending
any proceeding or, to the Knowledge of Landmark, investigation into the business or operations of Landmark and the Landmark Entities
since December 31, 2016, except where such proceedings or investigations would not reasonably be expected to have, either individually
or in the aggregate, a Material Adverse Effect on the Landmark.
4.6.
Financial Matters.
(a)
Financial Statements. Landmark has made available to Simmons the Landmark Financial Statements. The Landmark Financial
Statements with respect to periods ending prior to the date of this Agreement (i) are true, complete and correct in all material
respects, and have been prepared from, and are in accordance with, the Books and Records of the Landmark Entities, (ii) have been
prepared in accordance with GAAP and regulatory accounting principles, as applicable to Landmark, in each case, consistently applied,
except as may be otherwise indicated in the notes thereto and except with respect to the unaudited financial statements for the
omission of footnotes and (iii) fairly present in all material respects the consolidated financial condition of the Landmark Entities
as of the respective dates set forth therein and the results of operations, shareholders’ equity and cash flows of the Landmark
Entities for the respective periods set forth therein. The consolidated Landmark Financial Statements to be prepared after the
date of this Agreement and prior to the Closing (A) will be true, complete and correct in all material respects, (B) will have
been prepared in accordance with GAAP and regulatory accounting principles, as applicable to Landmark, in each case, consistently
applied except as may be otherwise indicated in the notes thereto and except with respect to unaudited financial statements for
the omission of footnotes and year-end adjustments, and (C) will fairly present in all material respects the consolidated financial
condition of Landmark as of the respective dates set forth therein and the results of operations, shareholders’ equity and
cash flows of Landmark for the respective periods set forth therein, subject in the case of unaudited financial statements to
the omission of footnotes and year-end adjustments.
(b)
Call Reports. The financial statements contained in the Call Reports of Landmark for all of the periods ending after
December 31, 2016 (i) are true, complete and correct in all material respects, (ii) have been prepared in accordance with GAAP
(except to the extent applicable Law requires otherwise) and regulatory accounting principles consistently applied, and (iii)
fairly present in all material respects the financial condition of Landmark as of the respective dates set forth therein and the
results of operations and shareholders’ equity for the respective periods set forth therein, subject to year-end adjustments.
The financial statements contained in the Call Reports of Landmark to be prepared after the date of this Agreement and prior to
the Closing (A) will be true, complete and correct in all material respects, (B) will have been prepared in accordance with GAAP
(except to the extent applicable Law requires otherwise) and regulatory accounting principles consistently applied, and (C) will
fairly present in all material respects the financial condition of Landmark as of the respective dates set forth therein and the
results of operations and shareholders’ equity of Landmark for the respective periods set forth therein, subject to year-end
adjustments.
(c)
Systems and Processes. Landmark has in place sufficient systems and processes that are customary for a financial
institution of the size of Landmark and that are designed to (i) provide reasonable assurances regarding the reliability of financial
reporting and the preparation of the Landmark Financial Statements, including the Call Reports, (ii) in a timely manner accumulate
and communicate to Landmark’s principal executive officer and principal financial officer the type of information that would
be required to be disclosed in Landmark Financial Statements, including the Call Reports, or any forms, filings, registrations,
submissions, statements, certifications, returns, information, data, reports or documents required to be filed or provided to
any Regulatory Authority, (iii) ensure access to Landmark’s Assets is permitted only in accordance with management’s
authorization and (iv) ensure the reporting of such Assets is compared with existing
Assets at regular intervals. Since December
31, 2016, neither Landmark nor, to Landmark’s Knowledge, any Representative of any Landmark Entity has received or otherwise
had or obtained knowledge of any complaint, allegation, assertion or claim, whether written or oral, regarding the adequacy of
such systems and processes or the accuracy or integrity of Landmark Financial Statements, including the Call Reports, or the accounting
or auditing practices, procedures, methodologies or methods (including with respect to loan loss reserves, write-downs, charge-offs
and accruals) of any Landmark Entity or their respective internal accounting controls, including any complaint, allegation, assertion
or claim that Landmark or any Landmark Subsidiary has engaged in questionable accounting or auditing practices. No attorney representing
any Landmark Entity, whether or not employed by any Landmark Entity, has reported evidence of a material violation of Securities
Laws, breach of fiduciary duty or similar violation by Landmark or any of its officers, directors or employees to the board of
directors of Landmark or any committee thereof or to any director or officer of Landmark. To Landmark’s Knowledge, there
has been no instance of fraud by any Landmark Entity, whether or not material, that occurred during any period covered by Landmark
Financial Statements.
(d)
Records. The records, systems, controls, data and information of the Landmark Entities are recorded, stored, maintained
and operated under means (including any electronic, mechanical or photographic process, whether computerized or not) that are
under the exclusive ownership and direct control of a Landmark Entity or accountants (including all means of access thereto and
therefrom), except where such non-exclusive ownership and non-direct control has not had or would not reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect on Landmark. Landmark has disclosed, based on its most
recent evaluation prior to the date of this Agreement, to their outside auditors and the audit committee of the board of directors
(A) any significant deficiencies in the design or operation of internal controls which could adversely affect in any material
respect their ability to record, process, summarize or report financial data and have disclosed to their auditors any material
weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have
a significant role in their internal controls.
(e)
Auditor Independence. During the periods covered by the Landmark Financial Statements, Landmark’s outside
auditor was independent of Landmark and its management. As of the date hereof, the outside auditor for Landmark has not resigned
or been dismissed as a result of or in connection with any disagreements with Landmark on a matter of accounting principles or
practices, financial statement disclosure or auditing scope or procedure.
4.7.
Books and Records.
The
Books and Records of Landmark have been and are being maintained in the Ordinary Course in accordance and compliance with all
applicable accounting requirements and Laws and are complete and accurate in all material respects to reflect corporate action
by Landmark.
4.8.
Absence of Undisclosed Liabilities.
No
Landmark Entity has incurred any Liability, except for Liabilities (a) incurred in the Ordinary Course since December 31, 2020,
(b) incurred in connection with this Agreement and the transactions contemplated hereby, or (c) that are accrued or reserved against
in the consolidated balance sheet of Landmark as of December 31, 2020 included in the Landmark Financial Statements at and for
the period ending December 31, 2020.
4.9.
Absence of Certain Changes or Events.
(a)
Since December 31, 2020, there has not been a Material Adverse Effect on Landmark.
(b)
Since December 31, 2020, (i) the Landmark Entities have carried on their respective businesses only in the Ordinary Course,
(ii) there has not been any material damage, destruction or other casualty loss with
respect to any material Asset owned, leased
or otherwise used by any Landmark Entity whether or not covered by insurance and (iii) none of the Landmark Entities have taken
any action that would be prohibited by Section 6.2 if taken after the date hereof.
4.10.
Tax.
(a)
All Landmark Entities have timely filed with the appropriate Taxing authorities all material Tax Returns in all jurisdictions
in which such Tax Returns are required to be filed, and such Tax Returns are correct and complete in all material respects. None
of the Landmark Entities is the beneficiary of any extension of time within which to file any Tax Return (other than any extensions
to file Tax Returns automatically granted). All material Taxes of the Landmark Entities (whether or not shown on any Tax Return)
that are due have been fully and timely paid. There are no Liens for Taxes (other than a Lien for Taxes not yet due and payable)
on any of the Assets of any of the Landmark Entities. No claim has ever been made in writing by an authority in a jurisdiction
where any Landmark Entity does not file a Tax Return that such Landmark Entity may be subject to Taxes by that jurisdiction.
(b)
None of the Landmark Entities has received any written notice of assessment or proposed assessment in connection with any
amount of Taxes, and there are no threatened in writing or pending disputes, claims, audits or examinations regarding any Taxes
of any Landmark Entity or the Assets of any Landmark Entity. None of the Landmark Entities has waived any statute of limitations
in respect of any Taxes.
(c)
Each Landmark Entity has complied in all material respects with all applicable Laws relating to the withholding of Taxes
and the payment thereof to appropriate authorities, including Taxes required to have been withheld and paid in connection with
amounts paid or owing to any employee or independent contractor, and Taxes required to be withheld and paid pursuant to Sections
1441 and 1442 of the Internal Revenue Code or similar provisions under foreign Law.
(d)
The unpaid Taxes of each Landmark Entity (i) did not, as of the most recent fiscal month end, materially exceed the reserve
for Tax Liability (other than any reserve for deferred Taxes established to reflect timing differences between book and Tax income)
set forth on the face of the most recent balance sheet (rather than in any notes thereto) for such Landmark Entity and (ii) do
not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with past custom and practice
of the Landmark Entities in filing their Tax Returns.
(e)
None of the Landmark Entities is a party to any Tax indemnity, allocation or sharing agreement (other than any agreement
solely between the Landmark Entities and other than any customary Tax indemnifications contained in credit or other commercial
agreements the primary purpose of which agreements does not relate to Taxes) and none of the Landmark Entities has been a member
of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which was Landmark)
or has any Tax Liability of any Person under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or
foreign Law (other than the other members of the consolidated group of which is or was Landmark), or as a transferee or successor.
(f)
During the two-year period ending on the date hereof, none of the Landmark Entities was a distributing corporation or a
controlled corporation in a transaction intended to be governed by Section 355 of the Internal Revenue Code. During the five-year
period ending on the date hereof, none of the Landmark Entities was a United States real property holding corporation within the
meaning of Section 897(c)(2) of the Internal Revenue Code.
(g)
Each Landmark Benefit Plan, employment agreement, or other compensation arrangement of Landmark that constitutes a “nonqualified
deferred compensation plan” subject to Section 409A of the Internal
Revenue Code has been written, executed, and operated
in compliance with Section 409A of the Internal Revenue Code and the regulations thereunder. No Landmark Entity has any obligation
to gross-up or otherwise reimburse any person for any tax incurred by such person pursuant to Section 409A or Section 280G of
the Internal Revenue Code. All Landmark Stock Options were granted at no less than “fair market value” for purposes
of Section 409A of the Internal Revenue Code, and each Landmark Stock Option is exempt from Section 409A of the Internal Revenue
Code.
(h)
None of the Landmark Entities will be required to include after the Closing any material adjustment in taxable income pursuant
to Section 481 of the Internal Revenue Code or any comparable provision under state or foreign Tax Laws as a result of transactions
or events occurring prior to the Closing. None of the Landmark Entities have participated in any “reportable transaction”
within the meaning of Treasury Regulation Section 1.6011-4.
(i)
All Landmark Entities have (i) to the extent deferred, properly complied in all material respects with all applicable
Laws in order to defer the amount of the employer’s share of any “applicable employment taxes” under Section 2302
of the CARES Act, (ii) to the extent applicable, eligible, and claimed, or intended to be claimed, properly complied in all
material respects with all Laws and duly accounted for any available Tax credits under Sections 7001 through 7004 of the
Families First Coronavirus Response Act and Section 2301 of the CARES Act, (iii) not deferred any payroll Tax obligations
(including those imposed by Sections 3101(a) and 3201 of the Internal Revenue Code) (for example, by a failure to timely
withhold, deposit or remit such amounts in accordance with the applicable provisions of the Internal Revenue Code and the Treasury
Regulations promulgated thereunder) pursuant to or in connection with any U.S. presidential memorandum or executive order, and
(iv) not sought a PPP Loan.
4.11.
Assets.
(a)
Each Landmark Entity has good and marketable title to those Assets reflected in the most recent Landmark Financial Statements
as being owned by such Landmark Entity or acquired after the date thereof (except Assets sold or otherwise disposed of since the
date thereof in the Ordinary Course), free and clear of all Liens, except (a) statutory Liens securing payments not yet due,
(b) Liens for real property Taxes not yet due and payable, (c) easements, rights of way, and other similar encumbrances
that do not materially affect the use of the Assets subject thereto or affected thereby or otherwise materially impair business
operations and use of such Assets and (d) such imperfections or irregularities of title or Liens as do not materially affect
the use of the Assets subject thereto or affected thereby or otherwise materially impair business operations and use of such Assets
(collectively, “Permitted Liens”). Landmark is the fee simple owner of all owned real property and the lessee
of all leasehold estates reflected in the most recent Landmark Financial Statements, free and clear of all Liens of any nature
whatsoever, except for Permitted Liens, and is in possession of the properties purported to be owned or leased thereunder, as
applicable, and each such lease is valid without Default thereunder by the lessee or, to the Knowledge of Landmark, the lessor.
There are no pending or, to the Knowledge of Landmark, threatened condemnation or eminent domain proceedings against any real
property that is owned or leased by Landmark. The Landmark Entities own or lease all properties as are necessary to their operations
as now conducted and no Person has any option or right to acquire or purchase any ownership interest in the owned real property
or any portion thereof.
(b)
Section 4.11(b) of Landmark’s Disclosure Memorandum sets forth a complete and correct list of all street addresses
and fee owners of all real property owned, leased or licensed by any Landmark Entity or otherwise occupied by a Landmark Entity
or used or held for use by any Landmark Entity (collectively, the “Real Property”). Other than as set forth
on Section 4.11(b) of Landmark’s Disclosure Memorandum, there are no Persons in possession of any portion of any of the
Real Property owned or leased by any Landmark Entity other than such Landmark Entity, and no Person other than a Landmark Entity
has the right to use or occupy for any purpose any portion of any of the Real Property owned, leased or licensed by a Landmark
Entity. Landmark
or a Landmark Subsidiary has good and marketable fee title to all Real Property owned by it free and clear of
all Liens, except Permitted Liens. There are no outstanding options, rights of first offer or refusal or other pre-emptive rights
or purchase rights with respect to any such owned Real Property.
(c)
All leases of Real Property under which any Landmark Entity, as lessee, leases Real Property, are valid, binding and enforceable
in accordance with their respective terms and Landmark or such Landmark Subsidiary has good and marketable leasehold interests
to all Real Property leased by them. There is not under any such lease any material existing Default by any Landmark Entity or,
to Landmark’s Knowledge, any other party thereto, or any event which with notice or lapse of time would constitute such
a material Default and all rent and other sums and charges due and payable under such lease have been paid.
(d)
The Assets reflected in the most recent Landmark Financial Statements which are owned or leased by the Landmark Entities,
and in combination with the Real Property, the Intellectual Property of any Landmark Entity, and contractual benefits and burdens
of the Landmark Entities, constitute, as of the Closing Date, all of the Assets, rights and interests necessary to enable the
Landmark Entities to operate consolidated businesses in the Ordinary Course and as the same is expected to be conducted on the
Closing Date.
4.12.
Intellectual Property; Privacy.
(a)
Each Landmark Entity owns or has a valid license to use (in each case, free and clear of any Liens other than any Permitted
Liens) all of the Intellectual Property necessary to carry on the business of such Landmark Entity as it is currently conducted.
Each Landmark Entity is the owner of or has a license, with the right to sublicense, to any Intellectual Property sold or licensed
to a third party by such Landmark Entity in connection with its business operations, and such Landmark Entity has the right to
convey by sale or license any Intellectual Property so conveyed. No Landmark Entity is in Default under any of its Intellectual
Property licenses. No proceedings have been instituted, or are pending or to the Knowledge of Landmark threatened, which challenge
the rights of any Landmark Entity with respect to Intellectual Property used, sold or licensed by such Landmark Entity in the
course of its business, nor has any Person claimed or alleged any rights to such Intellectual Property. The conduct of the business
of each Landmark Entity and the use of any Intellectual Property by each Landmark Entity does not infringe, misappropriate or
otherwise violate the Intellectual Property rights of any other Person. No Person has asserted to Landmark in writing that any
Landmark Entity has infringed, misappropriated or otherwise violated the Intellectual Property rights of such Person. The validity,
continuation and effectiveness of all licenses and other agreements relating to Intellectual Property used by any Landmark Entity
in the course of its business and the current terms thereof will not be affected by the transactions contemplated by this Agreement,
the use of the “Landmark Community Bank” trademark will be transferred to Simmons or Simmons Bank in connection with
the transactions contemplated by this Agreement and after the Effective Time, no Person besides Simmons shall have right and title
to the “Landmark Community Bank” trademark and trade name. All of the Landmark Entities’ right to the use of
and title to the name “Landmark Community Bank” will be transferred to Simmons in connection with the completion of
the transactions contemplated by this Agreement.
(b)
(i) The computer, information technology and data processing systems, facilities and services used by the Landmark Entities,
including all software, hardware, networks, communications facilities, platforms and related systems and services (collectively,
the “Systems”), are reasonably sufficient for the conduct of the respective businesses of the Landmark Entities
as currently conducted and (ii) the Systems are in good working condition to effectively perform all computing, information technology
and data processing operations necessary for the operation of the respective businesses of the Landmark Entities as currently
conducted. To Landmark’s Knowledge, no third party or Representative has gained unauthorized access to any Systems owned
or controlled by any Landmark Entity, and each Landmark Entity has taken commercially reasonable steps and implemented commercially
reasonable safeguards to ensure that the Systems are secure from unauthorized access and free from any disabling codes or instructions,
spyware, Trojan horses, worms, viruses or other software routines that
permit or cause unauthorized access to, or disruption,
impairment, disablement, or destruction of, software, data or other materials. Each Landmark Entity has implemented backup and
disaster recovery policies, procedures and systems consistent with generally accepted industry standards and sufficient to reasonably
maintain the operation of the respective businesses of the Landmark Entities in all material respects. Each Landmark Entity has
implemented and maintained commercially reasonable measures and procedures designed to reasonably mitigate the risks of cybersecurity
breaches and attacks.
(c)
Each Landmark Entity has (i) complied with all applicable Laws which govern the receipt, collection, compilation, use,
storage, processing, sharing, safeguarding, security, disposal, destruction, disclosure, transmission or transfer of the personal
data or information of customers or other individuals (“Personally Identifiable Information”) and similar Laws
governing data privacy, and with all of Landmark’s published privacy and data security policies and internal privacy and
data security policies and guidelines, including with respect to the receipt, collection, compilation, use, storage, processing,
sharing, safeguarding, security, disposal, destruction, disclosure, transmission or transfer of Personally Identifiable Information
and (ii) taken commercially reasonable measures to ensure that all Personally Identifiable Information in its possession or control
is protected against loss, damage, and unauthorized access, use, modification, or other misuse. To Landmark’s Knowledge,
there has been no loss, damage, or unauthorized access, use, modification, or other misuse of any such Personally Identifiable
Information by any Landmark Entity or any other Person.
4.13.
Environmental Matters.
(a)
Each Landmark Entity, its Participation Facilities, and its Operating Properties are, and have been since December 31,
2016, in compliance, in all material respects, with all Environmental Laws.
(b)
There is no Litigation pending or, to the Knowledge of Landmark, threatened before Regulatory Authority or other forum
in which any Landmark Entity or any of its Operating Properties or Participation Facilities (or Landmark in respect of such Operating
Property or Participation Facility) has been or, with respect to threatened Litigation, may be named as a defendant (i) for
alleged noncompliance (including by any predecessor) with or Liability under any Environmental Law or (ii) relating to the
release, discharge, spillage, or disposal into the environment of any Hazardous Material, whether or not occurring at, on, under,
adjacent to, or affecting (or potentially affecting) a site currently or formerly owned, leased, or operated by any Landmark Entity
or any of its Operating Properties or Participation Facilities, nor is there any reasonable basis for any Litigation of a type
described in this sentence. No Landmark Entity is subject to any Order imposing any Liability or obligation with respect to any
Environmental Law that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse
Effect on Landmark, nor is any such order threatened.
4.14.
Compliance with Laws.
(a)
Each Landmark Entity has, and since December 31, 2016 has had, in effect all Permits necessary for it to lawfully own,
lease, or operate its material Assets and to carry on its business as now or then conducted (and have paid all fees and assessments
due and payable in connection therewith). There has occurred no Default under any such Permit and to the Knowledge of Landmark
no suspension or cancellation of any such Permit is threatened. None of the Landmark Entities:
(i)
is in Default under any of the provisions of its Charter or Bylaws (or other governing instruments);
(ii)
is in material Default under any Laws, Orders, or Permits applicable to its business or employees conducting its business;
or
(iii)
subject to Section 10.15, has since December 31, 2016 received any written notification or communication from any agency
or department of federal, state, or local government or any Regulatory Authority or the staff thereof asserting that any Landmark
Entity is not in compliance with any Laws, Orders, or Permits or engaging in an unsafe or unsound activity or in troubled condition.
(b)
Each Landmark Entity is in compliance in all material respects with all applicable Laws, regulatory capital requirements,
Consents, Permits, Orders, or conditions imposed in writing by a Regulatory Authority, to which they or their Assets may be subject.
(c)
To the Knowledge of Landmark, each director, officer, shareholder, manager, and employee of the Landmark Entities that
has been engaged at any time in the development, use or operation of the Landmark Entities and their respective Assets, and each
Independent Contractor, is and has been in compliance in all material respects with all applicable Laws relating to the development,
use or operation of the Landmark Entities and their respective Assets. No proceeding or notice has been filed, given, commenced
or, to the Knowledge of Landmark, threatened against any of the Landmark Entities or any of their respective directors, officers,
members, Affiliates, managers, employees or Independent Contractors alleging any failure to so comply with all applicable Laws.
(d)
Landmark (i) has properly certified all foreign deposit accounts and has made all necessary Tax withholdings on all of
its deposit accounts, (ii) has timely and properly filed and maintained all requisite Currency Transaction Reports and other related
forms, including any requisite Custom Reports required by any agency of the U.S. Department of the Treasury, including the United
States Internal Revenue Service (“IRS”), and (iii) has timely filed all Suspicious Activity Reports with the
Financial Crimes Enforcement Network (bureau of the U.S. Department of the Treasury) required to be filed by it pursuant to all
applicable Laws.
(e)
Subject to Section 10.15, Landmark is “well-capitalized” and “well managed” (as those terms are
defined in applicable Laws).
(f)
Since December 31, 2016, each Landmark Entity has properly administered, in all material respects, all accounts for which
it acts as a fiduciary, including accounts for which any Landmark Entity serves as a trustee, agent, custodian, personal representative,
guardian, conservator or investment adviser, in accordance with the terms of the applicable governing documents and applicable
Laws. Since December 31, 2014, no Landmark Entity, or, to Landmark’s Knowledge, any director, officer, or employee of any
Landmark Entity, has committed any material breach of trust or fiduciary duty with respect to any such fiduciary account, and
the accountings for each such fiduciary account are true, complete and correct and accurately reflect the assets of such fiduciary
account.
4.15.
Foreign Corrupt Practices.
(a)
No Landmark Entity, or, to the Knowledge of Landmark, any director, officer, employee, agent or other Person acting on
behalf of Landmark Entity has, directly or indirectly, (i) used any funds of any Landmark Entity for unlawful contributions, unlawful
gifts, unlawful entertainment or other unlawful expenses relating to political activity, (ii) made any unlawful payment to foreign
or domestic governmental officials or employees or to foreign or domestic political parties or campaigns from funds of any Landmark
Entity, (iii) violated any provision that would result in the violation of the Foreign Corrupt Practices Act of 1977, as
amended, or any similar law, (iv) established or maintained any unlawful fund of monies or other Assets of any Landmark Entity,
(v) made any fraudulent entry on the Books and Records of any Landmark Entity, (vi) made any unlawful bribe, unlawful rebate,
unlawful payoff, unlawful influence payment, unlawful kickback or other unlawful payment to any Person, private or public, regardless
of form, whether in money, property or services, to obtain favorable treatment in securing business, to obtain special concessions
for any Landmark Entity, to pay for favorable treatment for business secured or to pay for special concessions already obtained
for any
Landmark Entity, or is currently subject to any United States sanctions administered by the Office of Foreign Assets Control
of the United States Treasury Department, or (vii) violated or is in violation of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, the Bank Secrecy Act, the USA PATRIOT ACT of 2001, the money laundering Laws of any jurisdiction, and
any related or similar rules, regulations or guidelines, issued, administered or enforced by any Regulatory Authority (collectively,
the “Money Laundering Laws”) and no action, suit or proceeding by or before any Regulatory Authority or any
arbitrator involving any Landmark Entity with respect to the Money Laundering Laws is pending or, to the Knowledge of Landmark,
threatened. Each Landmark Entity has been conducting operations at all times in compliance with applicable financial recordkeeping
and reporting requirements of all Money Laundering Laws administered and each Landmark Entity has established and maintained a
system of internal controls designed to ensure compliance by the Landmark Entities with applicable financial recordkeeping and
reporting requirements of the Money Laundering Laws.
4.16.
Community Reinvestment Act Performance.
Landmark
is an “insured depository institution” as defined in the FDIA and applicable regulations thereunder and has received
a Community Reinvestment Act of 1977 rating of “satisfactory” or better in its most recently completed performance
evaluation, and Landmark has no Knowledge of the existence of any fact or circumstance or set of facts or circumstances which
could reasonably be expected to result in Landmark having its current rating lowered such that it is no longer “satisfactory”
or better.
4.17.
Labor Relations.
(a)
No Landmark Entity is the subject of any pending or threatened Litigation asserting that it or any other Landmark Entity
has committed an unfair labor practice (within the meaning of the National Labor Relations Act or comparable state Law) or other
violation of state or federal labor Law or seeking to compel it or any other Landmark Entity to bargain with any labor organization
or other employee representative as to wages or conditions of employment. No Landmark Entity, predecessor, or Affiliate of a Landmark
Entity is or has ever been a party to any collective bargaining agreement or subject to any bargaining order, injunction or other
Order relating to Landmark’s relationship or dealings with its employees, any labor organization or any other employee representative,
and no Landmark Entity is currently negotiating any collective bargaining agreement. There is no strike, slowdown, lockout or
other job action or labor dispute involving any Landmark Entity pending or threatened and there have been no such actions or disputes
since December 31, 2016. To the Knowledge of Landmark, since December 31, 2016, there has not been any attempt by any Landmark
Entity employees or any labor organization or other employee representative to organize or certify a collective bargaining unit
or to engage in any other union organization activity with respect to the workforce of any Landmark Entity. The employment of
each employee of each Landmark Entity is terminable at will by the relevant Landmark Entity without any penalty, liability or
severance obligation incurred by any Landmark Entity.
(b)
Section 4.17(b) of Landmark’s Disclosure Memorandum separately sets forth all of Landmark’s employees,
including for each such employee: name, job title, hire date, full- or part-time status, status as a regular, temporary or contract
employee, Fair Labor Standards Act designation, work location (identified by street address), current compensation paid or payable,
all wage arrangements, fringe benefits (other than employee benefits applicable to all employees, which benefits are set forth
on Section 4.18(a) of Landmark’s Disclosure Memorandum), bonuses, incentives, or commissions paid the past three years,
and visa and permanent resident card or “Green Card” application status. To Landmark’s Knowledge, no employee
of any Landmark Entity is a party to, or is otherwise bound by, any agreement or arrangement, including any confidentiality or
non-competition agreement, that in any way adversely affects or restricts the performance of such employee’s duties. Each
current and former employee of the Landmark Entities who has contributed to the creation or development of any Intellectual Property
owned by any Landmark Entity has executed a nondisclosure and assignment-of-rights agreement for the benefit of the Landmark Entities
vesting all rights in work product created by the employee during the employee’s employment or affiliation with the Landmark
Entities. No Key Employee of
any Landmark Entity has provided written notice to a Landmark Entity of his or her intent to terminate
his or her employment with the applicable Landmark Entity as of the date hereof, and, as of the date hereof, to Landmark’s
Knowledge, no Key Employee intends to terminate his or her employment with Landmark before Closing. The Landmark Entities have
properly classified all employees for purposes of eligibility for overtime pursuant to the Fair Labor Standards Act and any other
applicable Law.
(c)
Section 4.17(c) of Landmark’s Disclosure Memorandum contains a complete and accurate listing of the name and
contact information of each individual who has provided personal services to any Landmark Entity as an independent contractor,
consultant, freelancer or other service provider (collectively, “Independent Contractors”) of more than $25,000
on an annual basis during the prior three years. A copy of each Contract relating to the services provided by any such Independent
Contractor to a Landmark Entity has been made available to Simmons prior to the date hereof. Each Independent Contractor ever
retained by the Landmark Entities who has contributed to the creation or development of any Intellectual Property owned by any
Landmark Entity has executed a nondisclosure and assignment-of-rights agreement for the benefit of the Landmark Entities and the
Landmark Entities are the owner of all rights in and to all Intellectual Property created by each Independent Contractor in performing
services for the Landmark Entities vesting all rights in work product created in the Landmark Entities. The Landmark Entities
have no obligation or liability with respect to any Taxes (or the withholding thereof) in connection with any Independent Contractor.
The Landmark Entities have properly classified, pursuant to the Internal Revenue Code, and any other applicable Law, and under
Landmark Benefit Plans, all Independent Contractors used by the Landmark Entities, or other individuals who provided services
as non-employees to any Landmark Entity, at any point. The engagement of each Independent Contractor of each Landmark Entity is
terminable at will by the relevant Landmark Entity without any penalty, liability or severance obligation incurred by any Landmark
Entity.
(d)
The Landmark Entities have no “leased employees” within the meaning of Internal Revenue Code Section 414(n).
(e)
The Landmark Entities have, or will have no later than the Closing Date, paid all accrued salaries, bonuses, commissions,
and other wages due to be paid through the Closing Date. Each of the Landmark Entities is and at all times has been in material
compliance with all Law governing the employment of labor and the withholding of Taxes, including all contractual commitments
and all such Laws relating to wages, hours, affirmative action, collective bargaining, discrimination, civil rights, disability
accommodation, employee leave, unemployment, worker classification, immigration, safety and health, workers’ compensation
and the collection and payment of withholding or Social Security Taxes and similar Taxes.
(f)
There have not been any wage and hour claims, discrimination, disability accommodation, or other employment claims or charges
by any current, former or prospective employee of any Landmark Entity since December 31, 2016, nor, to Landmark’s Knowledge,
are there any such claims or charges currently threatened by any current, former or prospective employee of any Landmark Entity.
To the Knowledge of Landmark, there are no governmental investigations open with or under consideration by the United States Department
of Labor (“DOL”), Equal Employment Opportunity Commission, or any other federal or state governmental body
charged with administering or enforcing employment related Laws.
(g)
All of the Landmark Entities’ employees are employed in the United States and are either United States citizens or
are legally entitled to work in the United States under the Immigration Reform and Control Act of 1986, as amended, other United
States immigration Laws and the Laws related to the employment of non-United States citizens applicable in the state in which
the employees are employed. The Landmark Entities have completed a Form I-9 (Employment Eligibility Verification) for each employee,
and each such Form I-9 has since been updated as required by applicable Law and is correct and complete in all material respects.
(h)
Since December 31, 2016, none of the Landmark Entities has implemented any plant closing or mass layoff, as defined under
the WARN Act, without providing notice in accordance with the WARN Act, and no such actions are currently contemplated, planned
or announced.
(i)
The Landmark Entities have (i) implemented, to the extent required, policies and procedures to enable social distancing
and remote working environments for employees of the Landmark Entities, (ii) taken commercially reasonable steps to ensure regular
disinfection and cleaning of work areas, including offices, restrooms, common areas and all high-touch surfaces in the workplace,
and (iii) required all employees who report experiencing symptoms of COVID-19 (including cough, shortness of breath or fever)
to either stay home or to go home immediately, as applicable. The Landmark Entities have complied in all material respects with
all applicable Laws related to the Pandemic, including “shelter in place,” “essential business” and similar
Pandemic Measures and applicable Laws concerning employee leaves of absence. Section 4.17(i) of Landmark’s Disclosure Memorandum
lists all of the following for the Landmark Entities since March 1, 2020, or otherwise in response to or in connection with the
Pandemic or business circumstances related thereto: (i) employee furloughs; (ii) reductions in employee salary, other compensation,
benefits or hours; (iii) employee lay-offs or terminations; or (iv) other material changes in employee policies, practices
or terms and conditions.
(j)
Since December 31, 2016, to the Knowledge of Landmark, no allegations of sexual or other misconduct, harassment or discrimination
have been made against any employee of any Landmark Entity. No Landmark Entity has entered into any settlement agreement related
to allegations of sexual or other misconduct, harassment or discrimination by any employee.
4.18.
Employee Benefit Plans.
(a)
Landmark has made available to Simmons prior to the execution of this Agreement, true, complete and correct copies of each
Employee Benefit Plan (including all amendments thereto), that has been adopted, maintained, sponsored in whole or in part by,
or contributed to or required to be contributed to by any Landmark Entity or Landmark ERISA Affiliate for the benefit of employees,
retirees, dependents, spouses, directors, independent contractors, or other beneficiaries or under which employees, retirees,
former employees, dependents, spouses, directors, independent contractors, or other beneficiaries are eligible to participate
or with respect to which Landmark or any Landmark ERISA Affiliate has or may have any obligation or Liability (each, a “Landmark
Benefit Plan”). For the avoidance of doubt, the term “Landmark Benefit Plans” includes plans, programs,
policies, and arrangements sponsored or maintained by a third-party professional employer organization in which the current or
former employees, retirees, dependents, spouses, directors, Independent Contractors, or other beneficiaries of a Landmark Entity
or any of its affiliates are eligible to participate. Section 4.18(a) of Landmark’s Disclosure Memorandum has a complete
and accurate list of all Landmark Benefit Plans. No Landmark Benefit Plan is subject to any Laws other than those of the United
States or any state, county, or municipality in the United States. Landmark has made available to Simmons prior to the execution
of this Agreement (i) all trust agreements or other funding arrangements for all Landmark Benefit Plans, (ii) all determination
letters, opinion letters, information letters or advisory opinions issued by the IRS, the DOL or the Pension Benefit Guaranty
Corporation (“PBGC”) during this calendar year or any of the preceding three calendar years, (iii) annual reports
or returns, audited or unaudited financial statements, actuarial reports and valuations prepared for any Landmark Benefit Plan
for the current plan year and the preceding plan year, (iv) the most recent summary plan descriptions and any material modifications
thereto, (v) any correspondence with the DOL, IRS, PBGC, or any other governmental entity regarding a Landmark Benefit Plan, and
(vi) all actuarial valuations of Landmark Benefit Plans.
(b)
Each Landmark Benefit Plan is and has been maintained in compliance with the terms of such Landmark Benefit Plan, and in
compliance with the applicable requirements of the Internal Revenue Code, ERISA, and any other applicable Laws. No Landmark Benefit
Plan is required to be amended within the 90-day period beginning on the Closing Date in order to continue to comply with ERISA,
the Internal Revenue Code,
and other applicable Law. Each Landmark Benefit Plan that is intended to be qualified under Section
401(a) of the Internal Revenue Code is so qualified and has received a favorable determination letter, or for a prototype plan,
opinion letter, from the IRS that is still in effect and applies to the Landmark Benefit Plan and on which such Landmark Benefit
Plan is entitled to rely. Nothing has occurred and no circumstance exists that would be reasonably expected to adversely affect
the qualified status of such Landmark Benefit Plan. Within the past three years, no Landmark Entity has taken any action to take
material corrective action or make a filing under any voluntary correction program of the IRS, DOL or any other Regulatory Authority
with respect to any Landmark Benefit Plan. All assets of each Landmark Benefit Plan that is a retirement plan consist exclusively
of cash and actively traded securities.
(c)
There are no threatened or pending claims or disputes under the terms of, or in connection with, the Landmark Benefit Plans
other than claims for benefits in the Ordinary Course that are not expected to result in material liability to any Landmark Entity,
and no action, proceeding, prosecution, inquiry, hearing or investigation or audit has been commenced with respect to any Landmark
Benefit Plan.
(d)
Neither Landmark nor any Affiliate of Landmark has engaged in any prohibited transaction for which there is not an exemption,
within the meaning of Section 4975 of the Internal Revenue Code or Section 406 of ERISA, with respect to any Landmark Benefit
Plan and no prohibited transaction has occurred with respect to any Landmark Benefit Plan that would be reasonably expected to
result in any Liability or excise Tax under ERISA or the Internal Revenue Code. No Landmark Entity, Landmark Entity employee,
nor any committee of which any Landmark Entity employee is a member has breached his or her fiduciary duty with respect to a Landmark
Benefit Plan in connection with any acts taken (or failed to be taken) with respect to the administration or investment of the
assets of any Landmark Benefit Plan. To Landmark’s Knowledge, no fiduciary, within the meaning of Section 3(21) of ERISA,
who is not Landmark Entity or any Landmark Entity employee, has breached his or her fiduciary duty with respect to a Landmark
Benefit Plan or otherwise has any Liability in connection with any acts taken (or failed to be taken) with respect to the administration
or investment of the assets of any Landmark Benefit Plan. The treatment of the awards of Landmark Equity Rights as required under
Section 2.3 of this Agreement is permitted by applicable Law and the terms of the applicable plan and award agreement.
(e)
Neither Landmark nor any Landmark ERISA Affiliate has at any time been a party to or maintained, sponsored, contributed
to or has been obligated to contribute to, or had any Liability with respect to, or would reasonably be expected to have any such
obligation to contribute to or Liability with respect to: (i) a plan subject to Title IV of ERISA, Section 302 of ERISA, or Section
412 of the Internal Revenue Code; (ii) a “multiemployer plan” (as defined in ERISA Section 3(37) and 4001(a)(3));
(iii) a “multiple employer plan” (as defined in 29 C.F.R. § 4001.2) or a plan subject to Section 413(c) of the
Internal Revenue Code; (iv) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA or applicable
state law); (v) a self-funded health or welfare benefit plan; or (vi) any voluntary employees’ beneficiary association (within
the meaning of Section 501(c)(9) of the Internal Revenue Code).
(f)
Each Landmark Benefit Plan or other arrangement of a Landmark Entity that is a “nonqualified deferred compensation
plan” within the meaning of Section 409A of the Internal Revenue Code has a plan document that satisfies the requirements
of Section 409A of the Internal Revenue Code and has been operated in compliance with the terms of such plan document and the
requirements of Section 409A of the Internal Revenue Code, in each case such that no Tax is or has been due or payable under
Section 409A of the Internal Revenue Code.
(g)
Each Landmark Benefit Plan that is a health or welfare plan has been amended and administered in accordance with the requirements
of the Patient Protection and Affordable Care Act of 2010. No Landmark Entity has any Liability or obligation to provide postretirement
health, medical or life insurance benefits to any Landmark Entity’s employees or former employees, officers, or directors,
or any dependent or beneficiary
thereof, except as otherwise required under state or federal benefits continuation Laws and for
which the covered individual pays the full cost of coverage. No Tax under Internal Revenue Code Sections 4980, 4980B through 4980I,
or 5000 has been incurred with respect to any Landmark Benefit Plan and no circumstance exists which could give rise to such Tax.
(h)
None of the Landmark Benefit Plans are subject to Title IV of ERISA.
(i)
All contributions required to be made to any Landmark Benefit Plan by applicable Law or by any plan document or other contractual
undertaking, and all premiums due or payable with respect to insurance policies funding any Landmark Benefit Plan, for any period
through the date hereof, have been timely made or paid in full or, to the extent not required to be made or paid on or before
the date hereof, have been fully reflected on the Books and Records of Landmark.
(j)
Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will
(either alone or in conjunction with any other event) result in, cause the vesting, exercisability or delivery of, or increase
in the amount or value of, any payment, right or other benefit to any employee, officer, director or other service provider of
any Landmark Entity, or result in any (a) requirement to fund any benefits or set aside benefits in a trust (including a rabbi
trust), (b) limitation on the right of any Landmark Entity to amend, merge, terminate or receive a reversion of assets from any
Landmark Benefit Plan or related trust, (c) acceleration of the time of payment or vesting of any such payment, right, compensation
or benefit, or (d) entitlement by any recipient of any payment or benefit to receive a “gross up” payment for any
income or other Taxes that might be owed with respect to such payment or benefit. Without limiting the generality of the foregoing,
no amount paid or payable (whether in cash, in property, or in the form of benefits) by the Landmark Entities in connection with
the transactions contemplated hereby (either solely as a result thereof or as a result of such transactions in conjunction with
any other event) will be an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue
Code. Section 4.18(j) of Landmark’s Disclosure Memorandum sets forth accurate and complete data with respect to each individual
who has a contractual right to severance pay or benefits (or increase in severance pay or benefits, including the acceleration
of any payment or vesting) triggered by a change in control and the amounts potentially payable to each such individual in connection
with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby (either alone or
in conjunction with any other event) or as a result of a termination of employment or service, taking into account any contractual
provisions relating to Section 280G of the Internal Revenue Code. No Landmark Benefit Plan provides for, and no Landmark Entity
has any obligation or commit to provide, the gross-up or reimbursement of Taxes under Internal Revenue Code Section 4999 or 409A,
or otherwise.
4.19.
Material Contracts.
(a)
None of the Landmark Entities, nor any of their respective Assets, businesses, or operations, is a party to, or is bound
or affected by, or receives benefits under, any Contract (whether written or oral), (i) that is either material to any Landmark
Entity or that would be required to be filed as an exhibit to a Form 10-K filed by any Landmark Entity with the SEC if the Landmark
Entity were required to file or voluntarily filed such Form 10-K, (ii) that is an employment, severance, termination, consulting,
or retirement Contract, (iii) relating to the borrowing of money by any Landmark Entity or the guarantee by any Landmark Entity
of any such obligation (other than Contracts evidencing deposit liabilities, purchases of federal funds, fully secured repurchase
agreements, advances and loans from the Federal Home Loan Bank, and trade payables, in each case in the Ordinary Course) in excess
of $10,000, including any sale and leaseback transactions and other similar financing arrangements, (iv) which prohibits or restricts
any Landmark Entity (and/or, following consummation of the transactions contemplated by this Agreement, any Simmons Entity) from
engaging in any business activities in any geographic area, line of business or otherwise in competition with any other Person,
(v) relating to the purchase or sale of any goods or services by a Landmark Entity (other than Contracts entered into in the Ordinary
Course and involving payments under any individual Contract not in excess of $30,000 over its remaining term or involving Loans,
borrowings or guarantees originated or purchased by any Landmark Entity in the Ordinary Course), (vi) which obligates any Landmark
Entity to conduct business with any third party on an exclusive or preferential basis, or requires referrals of business or any
Landmark Entity to make available investment opportunities to any Person on a priority or exclusive basis, (vii) which limits
the payment of dividends by any Landmark Entity, (viii) pursuant to which any Landmark Entity has agreed with any third parties
to become a member of, manage or control a joint venture, partnership, limited liability company or other similar entity, (ix)
pursuant to which any Landmark Entity has agreed with any third party to a change of control transaction such as an acquisition,
divestiture or merger or contains a put, call or similar right involving the purchase or sale of any equity interests or Assets
of any Person and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out”
or other contingent obligations) that are still in effect, (x) which relates to Intellectual Property of Landmark, (xi) between
any Landmark Entity, on the one hand, and (A) any officer or director of any Landmark Entity, or (B) to the Knowledge of Landmark,
any (1) record or beneficial owner of five percent or more of the voting securities of Landmark, (2) Affiliate or family member
of any such officer, director or record or beneficial owner or (3) any other Affiliate of Landmark, on the other hand, except
those of a type available to employees of Landmark generally, (xii) that provides for payments to be made by any Landmark Entity
upon a change in control thereof, (xiii) that may not be canceled by Simmons, Landmark or any of their respective Subsidiaries
(A) at their convenience (subject to no more than 90 days’ prior written notice), or (B) without payment of a penalty or
termination fee equal to or greater than $25,000 (assuming such Contract was terminated on the Closing Date), (xiv) containing
any standstill or similar agreement pursuant to which Landmark has agreed not to acquire Assets or equity interests of another
Person, (xv) that provides for indemnification by any Landmark Entity of any Person, except for non-material Contracts entered
into in the Ordinary Course, (xvi) with or to a labor union or guild (including any collective bargaining agreement), (xvii) that
grants any “most favored nation” right, right of first refusal, right of first offer or similar right with respect
to any material Assets, or rights of any Landmark Entity, taken as a whole, (xviii) that would be terminable other than by a Landmark
Entity or under which a material payment obligation would arise or be accelerated, in each case as a result of the Merger or the
announcement or consummation of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional
acts or events), (xix) any other Contract or amendment thereto that is material to any Landmark Entity or their respective business
or Assets and not otherwise entered into in the Ordinary Course, (xx) any Landmark Benefit Plans, pursuant to which any of the
benefits thereunder will be increased, or the vesting of the benefits will be accelerated, by the occurrence of the execution
or delivery of this Agreement, the obtainment of the Landmark Shareholder Approval or the consummation of any of the transactions
contemplated by this Agreement, or the value of any of benefits under which will be calculated on the basis of any of the transactions
contemplated by this Agreement, (xxi) that is a settlement, consent or similar Contract and contains any material continuing obligations
of any Landmark Entity, or (xxii) that is a consulting Contract or data processing, software programming or licensing Contract
involving the payment of more than $20,000 per annum (other than any such contracts which are terminable by any Landmark Entity
on 30 days or less notice without any required payment or other conditions, other than the condition of notice). Each Contract
of the type described in this Section 4.19(a), whether or not set forth in Landmark’s Disclosure Memorandum together with
all Contracts referred to in Sections 4.12 and 4.18(a), are referred to herein as the “Landmark Contracts.”
(b)
With respect to each Landmark Contract: (i) the Landmark Contract is legal, valid and binding on a Landmark Entity
and is in full force and effect and is enforceable in accordance with its terms; (ii) no Landmark Entity is in Default thereunder;
(iii) no Landmark Entity has repudiated or waived any material provision of any such Landmark Contract; (iv) no other
party to any such Landmark Contract is, to the Knowledge of Landmark, in Default or has repudiated or waived any material provision
thereunder; and (v) there is not pending or, to the Knowledge of Landmark, threatened cancellations of any Landmark Contract.
(c)
Landmark has made available true, complete and correct copies of each Landmark Contract in effect as of the date hereof.
All of the indebtedness of any Landmark Entity for money borrowed is prepayable at any time by such Landmark Entity without penalty
or premium.
4.20.
Agreements with Regulatory Authorities.
Subject
to Section 10.15, no Landmark Entity is subject to any cease-and-desist or other Order or enforcement action issued by, or is
a party to any Contract with, or is a party to any commitment letter, safety and soundness compliance plan, or similar undertaking
to, or is subject to any Order or directive by, or has been ordered to pay any civil money penalty by, or has been a recipient
of any supervisory letter from, or has adopted any policies, procedures or board resolutions at the request or suggestion of any
Regulatory Authority that currently restricts in any material respect the conduct of its business or that in any material manner
relates to its capital adequacy, its ability to pay dividends, its credit or risk management policies, its management, its business,
or Landmark’s acceptance of brokered deposits (each, whether or not set forth in Landmark’s Disclosure Memorandum,
a “Landmark Regulatory Agreement”), nor has any Landmark Entity been advised in writing or, to Landmark’s
Knowledge, orally, since December 31, 2016, by any Regulatory Authority that Landmark is in troubled condition or that the Regulatory
Authority is considering issuing, initiating, ordering, or requesting any such Landmark Regulatory Agreement.
4.21.
Investment Securities.
(a)
Each Landmark Entity has good title in all material respects to all securities and commodities owned by it (except those
sold under repurchase agreements, pledged to secure deposits of public funds, borrowings of federal funds or borrowings from the
Federal Reserve Banks or Federal Home Loan Banks or held in any fiduciary or agency capacity), free and clear of any Lien, except
to the extent such securities or commodities are pledged in the Ordinary Course and in accordance with prudent banking practices
to secure obligations of a Landmark Entity. Such securities are valued on the books of Landmark in accordance with GAAP.
(b)
Each Landmark Entity employs, to the extent applicable, investment, securities, risk management and other policies, practices
and procedures that Landmark believes are prudent and reasonable in the context of their respective businesses, and each Landmark
Entity has, since December 31, 2016, been in compliance with such policies, practices and procedures in all material respects.
4.22.
Derivative Instruments and Transactions.
All
Derivative Transactions whether entered into for the account of any Landmark Entity or for the account of a customer of any Landmark
Entity (a) were entered into in the Ordinary Course and in accordance with prudent banking practice and applicable rules, regulations
and policies of all applicable Regulatory Authorities, (b) are legal, valid and binding obligations of the Landmark Entity party
thereto and, to the Knowledge of Landmark, each of the counterparties thereto, and (c) are in full force and effect and enforceable
in accordance with their terms. Landmark Entities and, to the Knowledge of Landmark, the counterparties to all such Derivative
Transactions, have duly performed, in all material respects, their obligations thereunder to the extent that such obligations
to perform have accrued. To the Knowledge of Landmark, there are no material breaches, violations or Defaults or allegations
or assertions of such by any party pursuant to any such Derivative Transactions. The financial position of the Landmark Entities
on a consolidated basis under or with respect to each such Derivative Transaction has been reflected in the Books and Records
of the Landmark Entities in accordance with GAAP.
4.23.
Legal Proceedings.
(a)
There is no Litigation instituted or pending, or, to the Knowledge of Landmark, threatened, against any Landmark Entity
or against any current or former director, officer or employee of a Landmark Entity in their capacities as such or Employee Benefit
Plan of any Landmark Entity, or against any Asset, interest, or right of any of them, nor are there any Orders outstanding against
any Landmark Entity or the Assets of any
Landmark Entity, in each case, that has had or would reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect on any Landmark Entity.
(b)
Section 4.23(b)(i) of Landmark’s Disclosure Memorandum sets forth a list of all Litigation as of the date of this
Agreement to which any Landmark Entity is a party. Section 4.23(b)(ii) of Landmark’s Disclosure Memorandum sets forth a
list of all Orders to which any Landmark Entity is subject.
4.24.
Statements True and Correct.
(a)
None of the information supplied or to be supplied by any Landmark Entity or any Affiliate thereof for inclusion (including
by incorporation by reference) in the Registration Statement to be filed by Simmons with the SEC will, when supplied or when the
Registration Statement becomes effective (or when incorporated by reference), be false or misleading with respect to any material
fact, or omit to state any material fact necessary to make the statements therein not misleading. The portions of the Registration
Statement and the Proxy Statement/Prospectus relating to the Landmark Entities and other portions within the reasonable control
of the Landmark Entities will comply as to form in all material respects with the requirements of the Exchange Act and the rules
and regulations thereunder at the time the Registration Statement becomes effective and at the time the Proxy Statement/Prospectus
is filed with the SEC and first mailed.
(b)
None of the information supplied or to be supplied by any Landmark Entity or any Affiliate thereof for inclusion (including
by incorporation by reference) in the Proxy Statement/Prospectus, and any other documents to be filed by a Landmark Entity or
any Affiliate thereof with any Regulatory Authority in connection with the transactions contemplated hereby, will, at the respective
time such information is supplied and such documents are filed (or when incorporated by reference), and with respect to the Proxy
Statement/Prospectus, when first mailed to the shareholders of Landmark, be false or misleading with respect to any material fact,
or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were
made, not misleading, or, in the case of the Proxy Statement/Prospectus or any amendment thereof or supplement thereto, at the
time of Landmark’s Shareholders’ Meeting, be false or misleading with respect to any material fact, or omit to state
any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of any proxy
for Landmark’s Shareholders’ Meeting.
4.25.
State Takeover Statutes and Takeover Provisions.
Landmark
has taken all action required to be taken by it in order to exempt this Agreement and the transactions contemplated hereby from,
and this Agreement and the transactions contemplated hereby are exempt from, the requirements of any “moratorium,”
“fair price,” “affiliate transaction,” “business combination,” “control share acquisition”
or similar provision of any state anti-takeover Law (collectively, “Takeover Statutes”). No Landmark Entity
is the beneficial owner (directly or indirectly) of more than 10% of the outstanding capital stock of Simmons entitled to vote
in the election of Simmons’s directors.
4.26.
Opinion of Financial Advisor.
Landmark
has received the opinion of Olsen Palmer LLC, which, if initially rendered verbally has been confirmed by a written opinion, dated
the date of this Agreement, to the effect that, as of such date, the consideration to be paid to the Holders of Landmark Common
Stock in the Merger is fair, from a financial point of view, to such Holders. Such opinion has not been amended or rescinded.
4.27.
Tax and Regulatory Matters.
No
Landmark Entity or, to the Knowledge of Landmark, any Affiliate thereof has taken or agreed to take any action, and Landmark does
not have any Knowledge of any agreement, plan or other circumstance, that is reasonably likely to (a) prevent the
Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code or
(b) materially impede or delay receipt of any of the Requisite Regulatory Approvals.
4.28.
Loan Matters.
(a)
No Landmark Entity is a party to any written or oral Loan in which any Landmark Entity is a creditor which as of March
31, 2021, had an outstanding balance of $25,000 or more and under the terms of which the obligor was, as of March 31, 2021, over
90 days or more delinquent in payment of principal or interest and not on a non-accrual status. Except as such disclosure may
be limited by any applicable Law, Section 4.28(a) of Landmark’s Disclosure Memorandum sets forth a true, complete and correct
list of all of the Loans of the Landmark Entities that, as of March 31, 2021, had an outstanding balance of $25,000 or more and
were (i) on a non-accrual status, (ii) classified by Landmark as “Other Loans Specially Mentioned,” “Special
Mention,” “Substandard,” “Doubtful,” “Loss,” “Classified,” “Criticized,”
“Credit Risk Assets,” “Concerned Loans,” “Watch List” or words of similar import, or (iii)
subject to a deferral or payment modification (including the date on which such Loans are to return to the contractual payment
schedule in place prior to the deferral or payment modification), in any case (i), (ii) or (iii), together with the principal
amount of and accrued and unpaid interest on each such Loan and the aggregate principal amount of and accrued and unpaid interest
on such Loans as of March 31, 2021.
(b)
Each Loan currently outstanding (i) is evidenced by notes, agreements or
other evidences of indebtedness that are true, genuine and what they purport to be, (ii) to the extent secured, has been secured
by valid Liens which have been perfected, and (iii) is a legal, valid and binding obligation of the obligor named therein, enforceable
in accordance with its terms (except as may be limited by the Bankruptcy and Equity Exceptions). The notes or other credit or
security documents with respect to each such outstanding Loan were in compliance with all applicable Laws at the time of origination
or purchase by a Landmark Entity and are complete and correct in all material respects.
(c)
Each outstanding Loan (including Loans held for resale to investors) was solicited and originated, and is and has been
administered and, where applicable, serviced, and the relevant Loan files are being maintained, in accordance with the relevant
notes or other credit or security documents, Landmark’s written underwriting standards (and, in the case of Loans held for
resale to investors, the underwriting standards, if any, of the applicable investors) and with all applicable requirements of
Laws.
(d)
None of the Contracts pursuant to which any Landmark Entity has sold Loans or pools of Loans or participations in Loans
or pools of Loans contains any obligation to repurchase such Loans or interests therein solely on account of a payment default
by the obligor on any such Loan. Each Loan included in a pool of Loans originated, securitized or acquired by any Landmark Entity
(a “Pool”) meets all eligibility requirements (including all applicable requirements for obtaining mortgage
insurance certificates and Loan guaranty certificates) for inclusion in such Pool. All such Pools have been finally certified
or, if required, recertified in accordance with all applicable Laws, rules and regulations, except where the time for certification
or recertification has not yet expired. No Pools have been improperly certified, and, except as would not be material to Landmark
and its Subsidiaries, no Loan has been bought out of a Pool without all required approvals of the applicable investors.
(e)
(i) Section 4.28(e) of Landmark’s Disclosure Memorandum sets forth a list of all Loans as of the date hereof by Landmark
to any directors, executive officers and principal shareholders (as such terms are
defined in Regulation O of the Federal Reserve
(12 C.F.R. Part 215) (“Regulation O”)) of any Landmark Entity, (ii) there are no employee, officer, director,
principal shareholder or other affiliate Loans on which the borrower is paying a rate other than that reflected in the note or
other relevant credit or security agreement or on which the borrower is paying a rate which was not in compliance with Regulation
O, and (iii) all such Loans are and were originated in compliance with all applicable Laws.
(f)
Subject to Section 10.15, no Landmark Entity is now nor has it ever been since December 31, 2016, subject to any material
fine, suspension, settlement or other Contract or other administrative agreement or sanction by, or any reduction in any loan
purchase commitment from, any Regulatory Authority relating to the origination, sale or servicing of mortgage or consumer Loans.
4.29.
Deposits.
All
of the deposits held by Landmark (including the records and documentation pertaining to such deposits) have been established and
are held in compliance with (a) all applicable policies, practices and procedures of Landmark and (b) all applicable Laws, including
Money Laundering Laws and anti-terrorism or embargoed persons requirements.
4.30.
Allowance for Loan and Lease Losses.
The
allowance for loan and lease losses (“ALLL”) reflected in the Landmark Financial Statements was, as of the
date of each of the Landmark Financial Statements, in compliance with Landmark’s existing methodology for determining the
adequacy of the ALLL and in compliance with the standards established by the applicable Regulatory Authority, the Financial Accounting
Standards Board and GAAP, and is adequate.
4.31.
Insurance.
Landmark
Entities are insured with reputable insurers against such risks and in such amounts as the management of Landmark reasonably has
determined to be prudent and consistent with industry practice. Section 4.31 of Landmark’s Disclosure Memorandum contains
a true, complete and correct list and a brief description (including the name of the insurer, agent, coverage and the expiration
date) of all insurance policies in force on the date hereof with respect to the business and Assets of the Landmark Entities,
correct and complete copies of which policies have been provided to Simmons prior to the date hereof. The Landmark Entities are
in material compliance with their insurance policies and are not in Default under any of the material terms thereof. Each such
policy is outstanding and in full force and effect and, except for policies insuring against potential liabilities of officers,
directors and employees of the Landmark Entities is the sole beneficiary of such policies. All premiums and other payments due
under any such policy have been paid, and all claims thereunder have been filed in due and timely fashion. To Landmark’s
Knowledge, no Landmark Entity has received any written notice of cancellation or non-renewal of any such policies, nor, to Landmark’s
Knowledge, is the termination of any such policies threatened.
4.32.
OFAC; Sanctions.
No
Landmark Entity nor any director or officer or, to the Knowledge of Landmark, any Representative or other Person acting on behalf
of any Landmark Entity has (a) engaged in any services (including financial services), transfers of goods, software, or technology,
or any other business activity related to (i) Cuba, Iran, North Korea, Sudan, Syria or the Crimea region of Ukraine claimed by
Russia (“Sanctioned Countries”), (ii) the government of any Sanctioned Country, (iii) any person, entity or
organization located in, resident in, formed under the laws of, or owned or controlled by the government of, any Sanctioned Country,
or (iv) any Person made subject of any sanctions administered or enforced by the United States Government, including, without
limitation, the list of Specially Designated Nationals of the U.S. Department of the Treasury’s Office of Foreign
Assets
Control, or by the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions
authority (collectively, “Sanctions”), (b) engaged in any transfers of goods, technologies or services (including
financial services) that may assist the governments of Sanctioned Countries or facilitate money laundering or other activities
proscribed by United States Law, (c) is a Person currently the subject of any Sanctions or (d) is located, organized or resident
in any Sanctioned Country.
4.33.
Brokers and Finders.
Except
for Olsen Palmer LLC, neither Landmark nor any of its officers, directors, employees, or Affiliates has employed any broker or
finder or incurred any Liability for any financial advisory fees, investment bankers’ fees, brokerage fees, commissions,
or finders’ fees in connection with this Agreement or the transactions contemplated hereby.
4.34.
Transactions with Affiliates and Insiders.
There
are no Contracts, plans, arrangements or other transactions, including extensions of credit, between any Landmark Entity, on the
one hand, and (a) any officer, director or record or beneficial owner of five percent or more of the voting securities of any
Landmark Entity, (b) to Landmark’s Knowledge, any (i) record or beneficial owner of five percent or more of the voting
securities of Landmark or (ii) Affiliate or family member of any such officer, director or record or beneficial owner, or (c)
any other Affiliate of Landmark, on the other hand, except those, in each case, of a type available to employees of Landmark generally
and, in the case of Landmark, that are in compliance with Regulation O and Regulation W.
4.35.
No Investment Adviser Subsidiary.
No
Landmark Entity provides investment management, investment advisory or sub-advisory services to any Person (including management
and advice provided to separate accounts and participation in wrap fee programs) and is required to register with the SEC as an
investment adviser under the Investment Advisers Act of 1940, as amended.
4.36.
No Broker-Dealer Subsidiary.
No
Landmark Entity is a broker-dealer required to be registered under the Exchange Act with the SEC.
4.37.
No Insurance Subsidiary.
No
Landmark Entity conducts insurance operations that require a license from any national, state or local governmental authority
or Regulatory Authority under any applicable Law.
ARTICLE
5
REPRESENTATIONS AND WARRANTIES OF SIMMONS
Except
as Previously Disclosed, Simmons and Simmons Bank, as applicable, hereby represent and warrant to Landmark as follows:
5.1.
The Standard.
No
representation or warranty of Simmons or Simmons Bank contained in ARTICLE 5 shall be deemed untrue or incorrect, and neither
Simmons nor Simmons Bank shall be deemed to have breached a representation or warranty, in each case for all purposes hereunder,
including the condition set forth in Section 8.3(a), as a consequence or result of the existence or absence of any fact, circumstance,
change or event unless such fact,
circumstance, change or event, individually or taken together with all other facts, circumstances,
changes or events inconsistent with any representation or warranty contained in ARTICLE 5 has had or would reasonably be expected
to have, either individually or in the aggregate, a Material Adverse Effect on Simmons or Simmons Bank.
5.2.
Organization, Standing, and Power.
(a)
Status of Simmons. Simmons is a corporation duly organized, validly existing and in good standing under the
Laws of the State of Arkansas, is authorized under the Laws of the State of Arkansas to engage in its business as currently conducted
and otherwise has the corporate power and authority to own, lease and operate all of its material Assets and to conduct its business
in the manner in which its business is now being conducted. Simmons is duly qualified or licensed to transact business as a foreign
corporation in good standing in the states of the United States and foreign jurisdictions in which its ownership of Assets or
conduct of business requires such qualification or licensure, except where failure to be so qualified or licensed has not had
or would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Simmons. Simmons
is a bank holding company duly registered with the Federal Reserve under the BHC Act and has elected to be, and qualifies as,
a financial holding company under the BHC Act.
(b)
Status of Simmons Bank. Simmons Bank is a direct, wholly owned Subsidiary of Simmons, is duly organized,
validly existing and in good standing under the Laws of the State of Arkansas, is authorized under the Laws of the State of Arkansas
to engage in its business as currently conducted and otherwise has the corporate power and authority to own, lease and operate
all of its material Assets and to conduct its business in the manner in which its business is now being conducted. Simmons Bank
is authorized by the Arkansas State Bank Department (“SBD”) and the Federal Reserve to engage in the business
of banking as a commercial bank. Simmons Bank is in good standing in each jurisdiction in which its ownership of Assets or conduct
of business requires such qualification, except where failure to be so qualified has not had or would not reasonably be expected
to have, either individually or in the aggregate, a Material Adverse Effect on Simmons Bank.
5.3.
Authority of Simmons and Simmons Bank; No Breach by Agreement.
(a)
Authority. Each of Simmons and Simmons Bank has the corporate power and authority necessary to execute, deliver,
and, subject to the Requisite Regulatory Approvals, perform its obligations under this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated
herein, including the Merger, have been duly and validly authorized and approved by all necessary corporate action in respect
thereof on the part of Simmons and Simmons Bank (including, approval by, and a determination by the board of directors of Simmons
that this Agreement is advisable and in the best interests of Simmons’s shareholders and approval by, and a determination
by the board of directors of Simmons Bank that this Agreement is advisable and in the best interests of Simmons Bank’s sole
shareholder, and approval, by Simmons as sole shareholder, of this Agreement at a duly held meeting or by unanimous written consent).
This Agreement has been duly executed and delivered by Simmons and Simmons Bank. Subject to the Landmark Shareholder Approval,
and assuming the due authorization, execution and delivery by Simmons, this Agreement represents a legal, valid, and binding obligation
of Simmons and Simmons Bank, enforceable against Simmons and Simmons Bank in accordance with its terms (except as may be limited
by the Bankruptcy and Equity Exceptions).
(b)
No Conflicts. Neither the execution and delivery of this Agreement by Simmons, nor the consummation by Simmons
and Simmons Bank of the transactions contemplated hereby, nor compliance by Simmons and Simmons Bank with any of the provisions
hereof, will (i) conflict with or result in a breach of any provision of the Amended and Restated Articles of Incorporation,
By-laws or other governing instruments of Simmons, or the Articles of Agreement and Incorporation, Bylaws or other governing instruments
of Simmons Bank and any other Simmons Entity or any resolution adopted by the board of directors or the shareholders of any Simmons
Entity, or (ii) subject to receipt of the Requisite Regulatory Approvals, (x) violate any Law
applicable to any Simmons Entity
or any of their respective Assets or (y) violate, conflict with, constitute or result in a Default under or the loss of any benefit
under, or result in the creation of any Lien upon any of the respective Assets of any Simmons Entity under any of the terms, conditions
or provisions of any Contract or Permit of any Simmons Entity or under which any of their respective Assets may be bound, except
in the case of clause (y) above where such violations, conflicts or Defaults have not had or would not reasonably be expected
to have, either individually or in the aggregate, a Material Adverse Effect on Simmons.
(c)
Consents. Other than in connection or compliance with the provisions of the Securities Laws (including the filing
and declaration of effectiveness of the Registration Statement), applicable state corporate and securities Laws, the rules of
Nasdaq, the ABC, the TBA, the Laws of the States of Arkansas and Tennessee, the FDIA, the BHC Act, the Requisite Regulatory Approvals,
and the Contract Consents, no notice to, filing with, or Consent of, any Regulatory Authority or any third party is necessary
for the consummation by Simmons or Simmons Bank, as applicable, of the Merger and the other transactions contemplated by this
Agreement.
5.4.
Capitalization of Simmons.
(a)
Ownership. The authorized capital stock of Simmons consists of (i) 175,000,000 shares of Simmons Common Stock, of
which 108,360,636 shares are issued and outstanding as of June 2, 2021, and (ii) 40,040,000 shares of preferred stock, par value
$0.01 per share of Simmons, of which 767 shares are issued and outstanding as of June 2, 2021. As of June 2, 2021, no more than
7,000,000 shares of Simmons Common Stock are subject to Simmons Stock Options or other Equity Rights in respect of Simmons Common
Stock, and no more than 7,000,000 shares of Simmons Common Stock were reserved for future grants under the Simmons Stock Plans.
Upon any issuance of any shares of Simmons Common Stock in accordance with the terms of the Simmons Stock Plans, such shares will
be duly and validly issued and fully paid and nonassessable.
(b)
Other Rights or Obligations. All of the issued and outstanding shares of capital stock (or other equity interest)
of Simmons are duly authorized and validly issued and outstanding, and are fully paid and nonassessable and free of preemptive
rights, with no personal liability attaching to the ownership thereof. None of the outstanding shares of capital stock (or other
equity interest) of Simmons has been issued in violation of or subject to any preemptive rights or other rights to subscribe for
or purchase securities of the current or past shareholders of Simmons.
(c)
Outstanding Equity Rights. Other than the Simmons Stock Options and the Simmons Restricted Stock Awards,
in each case, outstanding as of the date of this Agreement, there are no existing Equity Rights with respect to the securities
of Simmons or Simmons Bank as of the date of this Agreement.
5.5.
Simmons Subsidiaries.
Simmons
or a Simmons Subsidiary owns all of the issued and outstanding shares of capital stock (and other equity interests) of the Simmons
Subsidiaries. The deposits in Simmons Bank are insured by the FDIC through the Deposit Insurance Fund to the maximum amount permitted
by applicable Law and all premiums and assessments required to be paid in connection therewith have been paid when due. No proceedings
for the revocation or termination of such deposit insurance are pending or, to the Knowledge of Simmons, threatened.
5.6.
Regulatory Reports.
(a)
Simmons’s Reports. Simmons has filed on a timely basis, all forms, filings, registrations, submissions, statements,
certifications, returns, information, data, reports and documents required to be filed or furnished by it with any Regulatory
Authority, and such reports were complete and accurate in all material respects and in compliance in all material respects with
the requirements of any applicable Law and the requirements of the applicable Regulatory Authority, since December 31, 2016.
(b)
Simmons’s SEC Reports. An accurate and complete copy of each final registration statement, prospectus, report,
schedule and definitive proxy statement filed with or furnished to the SEC by any Simmons Entity pursuant to the Securities Act
or the Exchange Act, as the case may be, since December 31, 2016 (the “Simmons SEC Reports”) is publicly available.
No such Simmons SEC Report, at the time filed, furnished or communicated (and, in the case of registration statements, prospectuses
and proxy statements, on the dates of effectiveness, dates of first sale of securities and the dates of the relevant meetings,
respectively), contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading, except
that information filed or furnished as of a later date (but before the date of this Agreement) shall be deemed to modify information
as of an earlier date. As of their respective dates, all Simmons SEC Reports filed or furnished under the Securities Act and the
Exchange Act complied as to form in all material respects with the published rules and regulations of the SEC with respect thereto.
As of the date of this Agreement, no executive officer of Simmons has failed in any respect to make the certifications required
of him or her under Section 302 or 906 of the Sarbanes-Oxley Act. As of the date of this Agreement, there are no outstanding comments
from or material unresolved issues raised by the SEC with respect to any of the Simmons SEC Reports.
(c)
Simmons Bank’s Reports. Each of Simmons and Simmons Bank has duly filed with SBD, the Federal Reserve, and
any other applicable Regulatory Authority, as the case may be, all reports, returns, filings, information, data, registrations,
submissions, and statements, required to be filed under any applicable Law, including any and all federal and state banking Laws,
and such reports were complete and accurate in all material respects and in compliance in all material respects with the requirements
of any applicable Law. Subject to Section 10.15, there (i) is no unresolved violation, criticism, or exception by any Regulatory
Authority with respect to any report or statement relating to any examinations, inspections or investigations of any Simmons Entity
and (ii) has been no formal or informal inquiries by, or disagreements or disputes with, any Regulatory Authority with respect
to the business, operations, policies or procedures of any Simmons Entity.
5.7.
Financial Matters.
(a)
Financial Statements. The Simmons Financial Statements included or incorporated by reference in the Simmons SEC
Reports (i) have been prepared from, and are in accordance with, the Books and Records of the Simmons Entities, (ii) have been
prepared in accordance with GAAP, regulatory accounting principles and applicable accounting requirements and with the published
rules and regulations of the SEC, in each case, consistently applied except as may be otherwise indicated in the notes thereto
and except with respect to the interim financial statements for the omission of footnotes and (iii) fairly present in all material
respects the consolidated financial condition of the Simmons Entities as of the respective dates set forth therein and the results
of operations, shareholders’ equity and cash flows of the Simmons Entities for the respective periods set forth therein,
subject in the case of the interim financial statements to year-end adjustments. The consolidated Simmons Financial Statements
to be prepared after the date of this Agreement and prior to the Closing (A) will have been prepared in accordance with GAAP,
regulatory accounting principles and applicable accounting requirements and with the published rules and regulations of
the SEC, in each case, consistently applied except as may be otherwise indicated in the notes thereto and except with respect
to unaudited financial statements for the omission of footnotes, and (B) will fairly present in all material respects the consolidated
financial condition of Simmons as of the respective dates set forth therein and the results of operations, shareholders’
equity and cash flows of Simmons for the respective periods set forth therein, subject in the case of unaudited financial statements
to year-end adjustments.
(b)
Call Reports. The financial statements contained in the Call Reports of Simmons Bank for the periods ending December
31, 2016 (i) have been prepared in accordance with GAAP (except to the extent applicable Law requires otherwise) and regulatory
accounting principles consistently applied, except as may be otherwise indicated in the notes thereto and except for the omission
of footnotes and (ii) fairly present in all material respects the financial condition of Simmons Bank as of the respective dates
set forth therein and the
results of operations and shareholders’ equity for the respective periods set forth therein, subject
to year-end adjustments. The financial statements contained in the Call Reports of Simmons Bank to be prepared after the date
of this Agreement and prior to the Closing (A) will have been prepared in accordance with GAAP (except to the extent applicable
Law requires otherwise) and regulatory accounting principles consistently applied, except as may be otherwise indicated in the
notes thereto and except for the omission of footnotes, and (B) will fairly present in all material respects the financial condition
of Simmons Bank as of the respective dates set forth therein and the results of operations and shareholders’ equity of Simmons
Bank for the respective periods set forth therein, subject to year-end adjustments.
(c)
Systems and Processes. Each of Simmons and Simmons Bank has in place sufficient systems and processes that are customary
for a financial institution of the size of Simmons and Simmons Bank and that are designed to (i) provide reasonable assurances
regarding the reliability of financial reporting and the preparation of the Simmons Financial Statements and Simmons Bank’s
financial statements, including the Call Report and (ii) in a timely manner accumulate and communicate to Simmons’s and
Simmons Bank’s principal executive officer and principal financial officer the type of information that would be required
to be disclosed in Simmons Financial Statements and Simmons Bank’s financial statements, including the Call Report, or any
forms, filings, registrations, submissions, statements, certifications, returns, information, data, reports or documents required
to be filed or provided to any Regulatory Authority. Neither Simmons nor Simmons Bank nor, to Simmons’s Knowledge, any Representative
of any Simmons Entity has received or otherwise had or obtained Knowledge of any material complaint, allegation, assertion or
claim, whether written or oral, regarding the adequacy of such systems and processes or the accuracy or integrity of Simmons Financial
Statements, the Simmons Bank’s financial statements, including the Call Reports, or the accounting or auditing practices,
procedures, methodologies or methods (including with respect to loan loss reserves, write-downs, charge-offs and accruals) of
any Simmons Entity or their respective internal accounting controls, including any material complaint, allegation, assertion or
claim that any Simmons Entity has engaged in questionable accounting or auditing practices. No attorney representing any Simmons
Entity, whether or not employed by any Simmons Entity, has reported evidence of a material violation of Securities Laws, breach
of fiduciary duty or similar violation by Simmons or any of its officers, directors or employees to the board of directors of
Simmons or Simmons Bank or any committee thereof or to any director or officer of Simmons or Simmons Bank. To Simmons’s
Knowledge, there has been no instance of fraud by any Simmons Entity, whether or not material, that occurred during any period
covered by the Simmons Financial Statements.
5.8.
Absence of Undisclosed Liabilities.
No
Simmons Entity has incurred any Liability, except for Liabilities (a) incurred in the Ordinary Course since December 31, 2020,
(b) incurred in connection with this Agreement and the transactions contemplated hereby, or (c) that are accrued or reserved
against in the consolidated balance sheet of Simmons as of December 31, 2020 included in the Simmons Financial Statements at and
for the period ending December 31, 2020.
5.9.
Absence of Certain Changes or Events.
Since
December 31, 2020, there has not been a Material Adverse Effect on Simmons.
5.10.
Tax.
(a)
All Simmons Entities have timely filed with the appropriate Taxing authorities all material Tax Returns in all jurisdictions
in which such Tax Returns are required to be filed, and such Tax Returns are correct and complete in all material respects. None
of the Simmons Entities is the beneficiary of any extension of time within which to file any Tax Return (other than any extensions
to file Tax Returns automatically granted). All material Taxes of the Simmons Entities (whether or not shown on any Tax Return)
that are due have been fully and timely paid. There are no Liens for any material amount of Taxes (other than a Lien for Taxes
not yet due
and payable) on any of the Assets of any of the Simmons Entities. No claim has been made in the last six years in
writing by an authority in a jurisdiction where any Simmons Entity does not file a Tax Return that such Simmons Entity may be
subject to Taxes by that jurisdiction.
(b)
None of the Simmons Entities has received any written notice of assessment or proposed assessment in connection with any
material amount of Taxes, and there are no threatened in writing or pending disputes, claims, audits or examinations regarding
any Taxes of any Simmons Entity or the Assets of any Simmons Entity. None of the Simmons Entities has waived any statute of limitations
in respect of any Taxes.
(c)
Each Simmons Entity has complied in all material respects with all applicable Laws relating to the withholding of Taxes
and the payment thereof to appropriate authorities, including Taxes required to have been withheld and paid in connection with
amounts paid or owing to any employee or independent contractor, and Taxes required to be withheld and paid pursuant to Sections
1441 and 1442 of the Internal Revenue Code or similar provisions under foreign Law.
5.11.
Compliance with Laws.
(a)
Each Simmons Entity has, and since December 31, 2016, has had, in effect all Permits necessary for it to lawfully own,
lease, or operate its material Assets and to carry on its business as now conducted (and have paid all fees and assessments due
and payable in connection therewith), except where neither the cost of failure to hold nor the cost of obtaining and holding such
Permit has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on
Simmons. There has occurred no material Default under any such Permit and to the Knowledge of Simmons no suspension or cancellation
of any such Permit is threatened. None of the Simmons Entities:
(i)
is in material Default under any of the provisions of its articles of incorporation or association or bylaws (or other
governing instruments);
(ii)
is in material Default under any Laws, Orders, or Permits applicable to its business or employees conducting its business;
or
(iii)
subject to Section 10.15, has since December 31, 2016 received any written notification or communication from any agency
or department of federal, state, or local government or any Regulatory Authority or the staff thereof asserting that any Simmons
Entity is not in compliance in any material respect with any Laws, Orders, or Permits or engaging in an unsafe or unsound activity
or troubled condition.
(b)
Each of Simmons and Simmons Bank is in compliance in all material respects with all applicable Laws, regulatory capital
requirements, Orders, or conditions imposed in writing by a Regulatory Authority, to which they or their Assets may be subject.
5.12.
Legal Proceedings.
There
is no Litigation instituted or pending, or, to the Knowledge of Simmons, threatened against any Simmons Entity, or against any
current or former director, officer or employee of a Simmons Entity in their capacities as such or Employee Benefit Plan of any
Simmons Entity, or against any Asset, interest, or right of any of them, nor are there any Orders outstanding against any Simmons
Entity or the Assets of any Simmons Entity, in each case, that has had or would reasonably be expected to have, either individually
or in the aggregate, a Material Adverse Effect on any Simmons Entity.
5.13.
Statements True and Correct.
None
of the information supplied or to be supplied by any Simmons Entity or any Affiliate thereof for inclusion (including by incorporation
by reference) in the Registration Statement to be filed by Simmons with the SEC will, when supplied or when the Registration Statement
becomes effective (or when incorporated by reference), be false or misleading with respect to any material fact, or omit to state
any material fact necessary to make the statements therein not misleading. The portions of the Registration Statement and the
Proxy/Prospectus relating to Simmons Entities and other portions within the reasonable control of Simmons Entities will comply
as to form in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder at the
time the Registration Statement becomes effective and at the time the Proxy Statement/Prospectus is filed with the SEC and first
mailed.
5.14.
Tax and Regulatory Matters.
No
Simmons Entity or, to the Knowledge of Simmons, any Affiliate thereof has taken or agreed to take any action, and Simmons does
not have any Knowledge of any agreement, plan or other circumstance, that is reasonably likely to (a) prevent the Merger
from qualifying as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code or (b) materially
impede or delay receipt of any of the Requisite Regulatory Approvals.
5.15.
Brokers and Finders.
Except
for Stephens Inc., neither Simmons nor any of its officers, directors, employees, or Affiliates has employed any broker or finder
or incurred any Liability for any financial advisory fees, investment bankers’ fees, brokerage fees, commissions, or finders’
fees in connection with this Agreement or the transactions contemplated hereby.
ARTICLE
6
CONDUCT OF BUSINESS PENDING CONSUMMATION
6.1.
Affirmative Covenants of Landmark.
(a)
From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, unless the
prior written consent of Simmons shall have been obtained, and except as otherwise expressly contemplated herein or as set forth
in Section 6.1 of Landmark’s Disclosure Memorandum, Landmark shall, and shall cause each of the Landmark Subsidiaries to,
(i) operate its business only in the Ordinary Course, (ii) use its reasonable best efforts to preserve intact its business
(including its organization, Assets, goodwill and insurance coverage), and maintain its rights, authorizations, franchises, advantageous
business relationships with customers, vendors, strategic partners, suppliers, distributors and others doing business with it,
and the services of its officers and Key Employees. Notwithstanding anything to the contrary set forth in this Section 6.1 or
Section 6.2, from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, Landmark
will use its reasonable best efforts to provide Simmons with prior written notice of any actions Landmark or any Landmark Subsidiary
takes with respect to the Pandemic, including Pandemic Measures, that differ from or are inconsistent with actions taken by Landmark
with respect to the Pandemic prior to the date of this Agreement.
(b)
Beginning on the date that is two weeks after the date hereof, and every two weeks thereafter, Landmark shall provide to
Simmons Bank a report describing all of the following which has occurred in the prior two weeks:
(i)
new, renewed, extended, modified, amended or terminated Contracts that provide for aggregate annual payments of $10,000
or more (provided that, if a Contract has a term of 12 months or less, it must be included only if it provides for aggregate payments
of $25,000 or more); and
(ii)
new Loans or commitments (including a letter of credit) for Loans in excess of $100,000, any renewals or extensions of
existing Loans or commitments for any Loans in excess of $100,000, or any material amendments or modifications to Loans in excess
of $100,000.
(c)
Beginning with the month of June 2021, Landmark shall provide to Simmons Bank a monthly report and attestation, in a form
acceptable to Simmons Bank, concerning Landmark’s asset quality. Such report and attestation shall reflect information as
of the end of the relevant month and shall be provided to Simmons Bank no later than the tenth day after such month end (for example,
the June 2021 report and attestation shall reflect information as of June 30, 2021, and shall be provided to Simmons Bank no later
than July 10, 2021).
6.2.
Negative Covenants of Landmark.
From
the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, unless the prior written
consent of Simmons shall have been obtained, and except as otherwise expressly contemplated herein or as set forth in Section
6.2 of Landmark’s Disclosure Memorandum, Landmark covenants and agrees that it will not do or agree or commit to do, or
cause or permit any of the Landmark Subsidiaries to do or agree or commit to do, any of the following:
(a)
amend the charter, bylaws or other governing instruments of any Landmark Entity;
(b)
incur, assume, guarantee, endorse or otherwise as an accommodation become responsible for any additional debt obligation
or other obligation for borrowed money (other than the creation of deposit liabilities, purchases of federal funds, borrowings
from any Federal Home Loan Bank, or sales of certificates of deposits, in each case incurred in the Ordinary Course);
(c)
(i) repurchase, redeem, or otherwise acquire or exchange, directly or indirectly, any shares, or any securities convertible
into or exchangeable or exercisable for any shares, of the capital stock of any Landmark Entity, or (ii) make, declare, pay or
set aside for payment any dividend or set any record date for or declare or make any other distribution in respect of Landmark’s
capital stock or other equity interests (except that (A) Landmark may make, declare, and pay one dividend to holders of Landmark
Common Stock as of June 30, 2021, at a rate not in excess of $0.05 per share of Landmark Common Stock, provided that (1) such
dividend shall be paid no later than July 30, 2021, and (2) Landmark shall not make, declare, or pay any such dividend if, as
of the date of its action, Landmark would be unable to satisfy the conditions outlined in Section 8.2(f), and (B) only if the
Closing Date is later than December 31, 2021, Landmark may make, declare, and pay one dividend to holders of Landmark Common Stock
as of December 31, 2021, at a rate not in excess of $0.05 per share of Landmark Common Stock, provided that (1) such dividend
shall be paid no later than January 14, 2022, and (2) Landmark shall not make, declare, or pay any such dividend if, as of the
date of its action, Landmark would be unable to satisfy the conditions outlined in Section 8.2(f));
(d)
issue, grant, sell, pledge, dispose of, encumber, authorize or propose the issuance of, enter into any Contract to issue,
grant, sell, pledge, dispose of, encumber, or authorize or propose the issuance of, or otherwise permit to become outstanding,
any additional shares of Landmark Common Stock or any other capital stock of any Landmark Entity, or any stock appreciation rights,
or any option, warrant, or other Equity Right (other than issuances of Landmark Common Stock in connection with the exercise of
Landmark Stock Options that were outstanding as of the close of business on June 3, 2021; provided that such issuances of Landmark
Common Stock occur prior to the Determination Date);
(e)
directly or indirectly adjust, split, combine or reclassify any capital stock or other equity interest of any Landmark
Entity or issue or authorize the issuance of any other securities in respect of or in substitution for shares of Landmark Common
Stock, or sell, transfer, lease, mortgage, permit any Lien, or otherwise dispose of, discontinue or otherwise encumber (i) any
shares of capital stock or other equity interests of any Landmark Entity (unless any such shares of capital stock or other equity
interest are sold or otherwise transferred to one of the Landmark Entities) or (ii) any Asset other than pursuant to Contracts
in force at the date of the Agreement or sales of investment securities in the Ordinary Course;
(f)
(i) purchase any securities or make any acquisition of or investment in (except in the Ordinary Course), either by purchase
of stock or other securities or equity interests, contributions to capital, Asset transfers, purchase of any Assets (including
any investments or commitments to invest in real estate or any real estate development project) or other business combination,
or by formation of any joint venture or other business organization or by contributions to capital (other than by way of foreclosures
or acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith,
in each case in the Ordinary Course), any Person other than a wholly owned Subsidiary of Landmark, or otherwise acquire direct
or indirect control over any Person or (ii) enter into a plan of consolidation, merger, share exchange, share acquisition, reorganization,
recapitalization or complete or partial liquidation or dissolution (other than consolidations, mergers or reorganizations solely
among wholly owned Landmark Subsidiaries), or a letter of intent, memorandum of understanding or agreement in principle with respect
thereto;
(g)
(i) grant any increase in compensation or benefits to the employees or officers of any Landmark Entity, except as required
by Law or increases in base salary for non-officers (not to exceed 3.5% for any non-officer) as part of the historic process of
annual performance and compensation reviews performed on or soon after a non-officer’s anniversary date, (ii) pay any (x)
severance or termination pay or (y) any bonus, in either case other than pursuant to a Landmark Benefit Plan in effect on the
date hereof and in the case of clause (x) subject to receipt of an effective release of claims from the employee, and in the case
of clause (y) to the extent required under the terms of the Landmark Benefit Plan without the exercise of any upward discretion,
(iii) enter into, amend, or increase the benefits payable under any severance, change in control, retention, bonus guarantees,
collective bargaining agreement or similar agreement or arrangement with employees or officers of any Landmark Entity, (iv)
grant any increase in fees or other increases in compensation or other benefits to directors of any Landmark Entity, (v) waive
any stock repurchase rights, or grant, accelerate, amend or change the period of exercisability of any Equity Rights or restricted
stock, or authorize cash payments in exchange for any Equity Rights, (vi) fund any rabbi trust or similar arrangement,
(vii) terminate the employment or services of any officer or any employee whose annual base compensation is greater than
$75,000, other than for cause, (viii) hire any officer, employee, independent contractor or consultant (who is a natural person)
who has annual compensation greater than $100,000, or (ix) implement or announce any employee layoff that would reasonably be
expected to implicate the WARN Act;
(h)
enter into, amend or renew any employment or Independent Contractor Contract between any Landmark Entity and any Person
requiring payments thereunder in excess of $25,000 in any 12-month period that the Landmark Entity does not have the unconditional
right to terminate without Liability (other than Liability for services already rendered), at any time on or after the Effective
Time;
(i)
except with respect to a Landmark Benefit Plan that is intended to be tax-qualified in the opinion of counsel is necessary
or advisable to maintain the tax qualified status, (i) adopt or establish any plan, policy, program or arrangement that would
be considered a Landmark Benefit Plan if such plan, policy, program or arrangement were in effect as of the date of this Agreement,
or amend in any material respect any existing Landmark Benefit Plan, terminate or withdraw from, or amend, any Landmark Benefit
Plan, (ii) make any distributions from such Landmark Benefit Plans, except as required by the terms of such plans, or (iii) fund
or in any other way secure the payment of compensation or benefits under any Landmark Benefit Plan;
(j)
except in each case as may be required to conform to changes in Tax Laws, regulatory accounting requirements or GAAP, as
applicable, make any change in any accounting principles, practices or methods or systems of internal accounting controls; or
make or change any material Tax election, Tax accounting method, taxable year or period; file any amended material Tax Return,
stop maintaining withholding certificates in respect of any person required to be maintained under the Internal Revenue Code or
the Treasury Regulations, agree to an extension or waiver of any statute of limitations with respect to the assessment or determination
of Taxes; settle or compromise any Tax liability of any Landmark Entity; enter into any closing agreement with respect to any
Tax; surrender any right to claim a Tax refund; secure a PPP Loan; or claim any other Tax relief or Tax benefit under a COVID-19
Relief Law;
(k)
commence any Litigation other than in the Ordinary Course, or settle, waive or release or agree or consent to the issuance
of any Order in connection with any Litigation (i) involving any Liability of any Landmark Entity for money damages in excess
of $20,000 in the aggregate or that would impose any restriction on the operations, business or Assets of any Landmark Entity,
Simmons or the Surviving Bank or (ii) arising out of or relating to the transactions contemplated hereby;
(l)
(i) enter into, renew, extend, modify, amend or terminate any (A) Contract (1) with a term longer than one year or (2)
that calls for aggregate payments of $25,000 or more, (B) Landmark Contract or any Contract which would be a Landmark Contract
if it were in existence on the date hereof, (C) Contract referred to in Section 4.33 (or any other Contract with any broker or
finder in connection with the Merger or any other transaction contemplated by this Agreement), or (D) Contract, plan, arrangement
or other transaction of the type described in Section 4.34 or (ii) waive, release, compromise or assign any material rights or
claims under any Contract described in the foregoing clause (i);
(m)
(i) enter into any new line of business or change in any material respect its lending, investment, risk and asset-liability
management, interest rate, fee pricing or other material banking or operating policies (including any change in the maximum ratio
or similar limits as a percentage of its capital exposure applicable with respect to its loan portfolio or any segment thereof)
or (ii) change its policies and practices with respect to underwriting, pricing, originating, acquiring, selling, servicing or
buying or selling rights to service Loans except as required by rules or policies imposed by a Regulatory Authority;
(n)
make, or commit to make, any capital expenditures in excess of $20,000 individually or $50,000 in the aggregate (except
for reasonable capital expenditures associated with the construction/renovation of Landmark’s new branch located at 400
S. Main Street, Memphis, Tennessee 38103);
(o)
except as required by applicable Law or Regulatory Authorities, make any material changes in its policies and practices
with respect to insurance policies including materially reduce the amount of insurance coverage currently in place or fail to
renew or replace any existing insurance policies;
(p)
materially change or restructure its investment securities portfolios, its investment securities practice or policies,
its hedging practices or policies, or change its policies with respect to the classification or reporting of such portfolios or
invest in any mortgage-backed or mortgage related securities which would be considered “high-risk” securities under
applicable regulatory pronouncements or change its interest rate exposure through purchases, sales or otherwise, or the manner
in which its investment securities portfolios are classified or reported;
(q)
alter materially its interest rate or fee pricing policies with respect to depository accounts or waive any material fees
with respect thereto;
(r)
take any action, or knowingly fail to take any action, which action or failure to act prevents or impedes, or could reasonably
be expected to prevent or impede, the Merger from qualifying as a “reorganization” within the meaning of Section 368(a)
of the Internal Revenue Code;
(s)
make or acquire any Loan or issue a commitment (including a letter of credit) or renew or extend an existing commitment
for any Loan, or amend or modify in any material respect any Loan (including in any manner that would result in any additional
extension of credit, principal forgiveness, or effect any uncompensated release of collateral, i.e., at a value below the
fair market value thereof as determined by Landmark), except (i) Loans or commitments for Loans with a principal balance less
than $1,000,000 in full compliance with Landmark’s underwriting policy and related Loan policies in effect as of the date
of this Agreement without utilization of any of the exceptions provided in such underwriting policy and related Loan policies
(provided that this exception shall not permit Landmark to acquire such Loans), (ii) Loans or commitments for Loans with a principal
balance equal to or less than $250,000 in full compliance with Landmark’s underwriting policy and related Loan policies
in effect as of the date of this Agreement, including pursuant to an exception to such underwriting policy and related Loan policies
that is reasonable in light of the underwriting of the borrower for such Loan or commitment (provided that this exception shall
not permit Landmark to acquire such Loans), and (iii) amendments or modifications of any existing Loan in full compliance with
Landmark’s underwriting policy and related Loan policies in effect as of the date of this Agreement without utilization
of any of the exceptions provided in such underwriting policy and related loan policies;
(t)
other than in the Ordinary Course, repurchase, or provide indemnification relating to, Loans in the aggregate in excess
of $100,000;
(u)
cancel, compromise, waive, or release any material indebtedness owed to any Person or any rights or claims held by any
Person, except for (i) sales of Loans and sales of investment securities, in each case in the Ordinary Course or (ii) as expressly
required by the terms of any Contracts in force at the date of the Agreement;
(v)
permit the commencement of any construction of new structures or facilities upon, or purchase or lease any real property
in respect of any branch or other facility, or make any application to open, relocate or close any branch or other facility;
(w)
enter into any securitizations of any Loans or create any special purpose funding or variable interest entity other than
on behalf of clients;
(x)
foreclose upon or take a deed or title to any commercial real estate (excluding real estate used solely for agricultural
production) without first conducting a Phase I environmental assessment (except where such an assessment has been conducted in
the preceding 12 months) of the property or foreclose upon any commercial real estate if such environmental assessment indicates
the presence of Hazardous Material;
(y)
notwithstanding any other provision hereof, take any action that is intended or which could reasonably be expected to (i)
impede, adversely affect or delay consummation of the transactions contemplated by this Agreement or the receipt of any approvals
of any Regulatory Authority or third party referenced in Section 7.4(a), (ii) result in any of the conditions set forth in ARTICLE
8 not being satisfied, or (iii) impair its ability to perform its obligations under this Agreement or to consummate the transactions
contemplated hereby; or
(z)
agree to take, make any commitment to take, or adopt any resolutions of Landmark’s board of directors in support
of, any of the actions prohibited by this Section 6.2.
6.3.
Covenants of Simmons.
From
the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, unless the prior written
consent of Simmons shall have been obtained (which consent shall not be unreasonably withheld, delayed, or conditioned), and except
as expressly contemplated herein or as set forth in
Section 6.3 of Simmons’s Disclosure Memorandum, Simmons covenants and
agrees that it will not do or agree or commit to do, or permit any of its Subsidiaries to do or agree or commit to do, any of
the following:
(a)
amend the Amended and Restated Articles of Incorporation, By-laws or other governing instruments of Simmons or the articles
of incorporation or association, bylaws or other governing documents of any Significant Subsidiaries (as defined in Regulation
S-X promulgated by the SEC) in a manner that would adversely affect Landmark or the holders of Landmark Common Stock adversely
relative to other holders of Simmons Common Stock;
(b)
take any action, or knowingly fail to take any action, which action or failure to act prevents or impedes, or could reasonably
be expected to prevent or impede, the Merger from qualifying as a “reorganization” within the meaning of Section 368(a)
of the Internal Revenue Code;
(c)
take any action that is intended or which could reasonably be expected to (i) impede, adversely affect or delay consummation
of the transactions contemplated by this Agreement or the receipt of any approvals of any Regulatory Authority or third party
referenced in Section 7.4(a), (ii) result in any of the conditions set forth in ARTICLE 8 not being satisfied, or (iii) impair
its ability to perform its obligations under this Agreement or to consummate the transactions contemplated hereby, except as required
by applicable Law; or
(d)
agree to take, make any commitment to take, or adopt any resolutions of Simmons’s board of directors in support of,
any of the actions prohibited by this Section 6.3.
6.4.
Reports.
Each
Party and its Subsidiaries shall file all reports, including Call Reports, required to be filed by it with Regulatory Authorities
between the date of this Agreement and the Effective Time and shall deliver to the other Party copies of all such reports promptly
after the same are filed. If financial statements are contained in any such reports filed with the SEC and with respect to the
financial statements in the Call Reports, such financial statements will fairly present the consolidated financial position of
the entity filing such statements as of the dates indicated and the consolidated results of operations, changes in shareholders’
equity, and cash flows for the periods then ended in accordance with GAAP (subject in the case of interim financial statements
to normal recurring year-end adjustments that are not material) or applicable regulatory accounting principles (with respect to
the financial statements contained in the Call Reports) consistently applied, except as may be otherwise indicated in the notes
thereto and except for the omission of footnotes. Notwithstanding the above, no Party shall be obligated to disclose to any other
Party any reports to the extent such reports contain confidential supervisory information or other information the disclosure
of which would be prohibited by applicable Law.
ARTICLE
7
ADDITIONAL AGREEMENTS
7.1.
Registration Statement; Proxy Statement/Prospectus; Shareholder Approvals.
(a)
Simmons and Landmark shall promptly prepare and file with the SEC, a proxy statement/prospectus in definitive form (including
any amendments thereto, the “Proxy Statement/Prospectus”) and Simmons shall prepare and file with the SEC the
Registration Statement (including the Proxy Statement/Prospectus constituting a part thereof and all related documents) as promptly
as reasonably practicable after the date of this Agreement, subject to full cooperation of both Parties and their respective advisors
and accountants. Simmons and Landmark agree to cooperate, and to cause their respective Subsidiaries to cooperate, with the other
Party and its counsel and its accountants in the preparation of the Registration Statement and the Proxy Statement/Prospectus.
Each of Simmons and Landmark agrees to use its reasonable best efforts to cause the Registration Statement to be declared effective
under the Securities Act as promptly as reasonably
practicable after filing thereof, and Landmark shall thereafter mail or deliver
the Proxy Statement/Prospectus to its shareholders promptly following the date of effectiveness of the Registration Statement.
Simmons also agrees to use its reasonable best efforts to obtain all necessary state securities law or “Blue Sky”
permits and approvals required to carry out the transactions contemplated by this Agreement, and Landmark shall furnish all information
concerning Landmark and the holders of Landmark Common Stock as may be reasonably requested in connection with any such action.
(b)
Landmark shall duly call, give notice of, establish a record date for, convene and hold a shareholders’ meeting (“Landmark’s
Shareholders’ Meeting”), to be held as promptly as reasonably practicable after the Registration Statement is
declared effective by the SEC, for the purpose of obtaining the Landmark Shareholder Approval and, if so desired and mutually
agreed, such other matters of the type customarily brought before an annual or special meeting of shareholders. Landmark agrees
that its obligations pursuant to this Section 7.1(b) shall not be affected by the commencement, proposal, disclosure, or communication
to Landmark of any Acquisition Proposal.
(c)
Landmark shall (i) through its board of directors unanimously recommend to its shareholders the approval of this Agreement
and the transactions contemplated hereby (the “Landmark Recommendation”), (ii) include such Landmark Recommendation
in the Proxy Statement/Prospectus and (iii) use its reasonable best efforts to obtain the Landmark Shareholder Approval. Neither
the board of directors of Landmark nor any committee thereof shall (A) withhold, withdraw, qualify or modify in a manner adverse
to Simmons or Simmons Bank the Landmark Recommendation, (B) fail to make the Landmark Recommendation or otherwise submit this
Agreement to Landmark’s shareholders without recommendation, (C) adopt, approve, agree to, accept, recommend or endorse
an Acquisition Proposal, (D) fail to publicly and without qualification (1) recommend against any Acquisition Proposal or
(2) reaffirm the Landmark Recommendation within ten Business Days (or such fewer number of days as remains prior to Landmark’s
Shareholders’ Meeting) after an Acquisition Proposal is made public or any request by Simmons to do so, (E) take any action,
or make any public statement, filing or release inconsistent with the Landmark Recommendation, or (F) publicly propose to do any
of the foregoing (any of the foregoing being a “Change in the Landmark Recommendation”).
(d)
Landmark shall adjourn or postpone Landmark’s Shareholders’ Meeting, if, as of the time for which such meeting
is originally scheduled, there are insufficient shares of Landmark Common Stock represented (either in person or by proxy) to
constitute a quorum necessary to conduct the business of such meeting. Landmark shall also adjourn or postpone Landmark’s
Shareholders’ Meeting if, as of the time for which Landmark’s Shareholders’ Meeting is scheduled, Landmark has
not recorded proxies representing a sufficient number of shares necessary to obtain the Landmark Shareholder Approval. If requested
by Simmons, Landmark shall retain a proxy solicitor reasonably acceptable to, and on terms reasonably acceptable to, Simmons in
connection with obtaining the Landmark Shareholder Approval. Notwithstanding anything to the contrary herein, Landmark’s
Shareholders’ Meeting shall be convened and this Agreement shall be submitted to the shareholders of Landmark at Landmark’s
Shareholders’ Meeting, for the purpose of voting on the approval of this Agreement and the other matters contemplated hereby,
and nothing contained herein shall be deemed to relieve Landmark of such obligation.
7.2.
Acquisition Proposals.
(a)
No Landmark Entity shall, and it shall cause its Representatives not to, directly or indirectly, (i) solicit, initiate,
encourage (including by providing information or assistance), facilitate or induce any Acquisition Proposal, (ii) engage
or participate in any discussions or negotiations regarding, or furnish or cause to be furnished to any Person any confidential
or nonpublic information or data with respect to, or take any other action to facilitate any inquiries or the making of any offer
or proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal (iii) adopt, approve, agree
to, accept, endorse or recommend any Acquisition Proposal, (iv) approve, agree to, accept, endorse or recommend, or propose
to approve, agree to,
accept, endorse or recommend any Acquisition Agreement contemplating or otherwise relating to any Acquisition
Transaction, or (v) otherwise cooperate in any way with, or assist or participate in, or facilitate or encourage any effort
or attempt by any Person to do or seek to do any of the foregoing. Without limiting the foregoing, it is agreed that any violation
of the restrictions set forth in this Section 7.2 by any Subsidiary or Representative of Landmark shall constitute a breach of
this Section 7.2 by Landmark. In addition to the foregoing, Landmark shall not submit to the vote of its shareholders any Acquisition
Proposal other than the Merger.
(b)
Promptly (but in no event more than 24 hours) following receipt of any Acquisition Proposal or any request for nonpublic
information or any inquiry that could reasonably be expected to lead to any Acquisition Proposal, Landmark shall advise Simmons
in writing of the receipt of such Acquisition Proposal, request or inquiry, and the terms and conditions of such Acquisition Proposal,
request or inquiry (including, in each case, the identity of the Person making any such Acquisition Proposal, request or inquiry),
and Landmark shall as promptly as practicable provide to Simmons (i) a copy of such Acquisition Proposal, request or inquiry,
if in writing, or (ii) a written summary of the material terms of such Acquisition Proposal, request or inquiry, if oral. Landmark
shall provide Simmons as promptly as practicable (but in no event more than 24 hours) with notice setting forth all such information
as is necessary to keep Simmons informed on a current basis of all developments, discussions, negotiations and communications
regarding (including amendments or proposed amendments to) such Acquisition Proposal, request or inquiry.
(c)
Notwithstanding anything herein to the contrary, at any time prior to Landmark’s Shareholders’ Meeting, the
board of directors of Landmark may submit this Agreement to Landmark’s shareholders without recommendation (although the
resolution approving this Agreement as of the date hereof may not be rescinded or amended), if (i) Landmark has received a Superior
Proposal (after giving effect to the terms of any revised offer by Simmons pursuant to this Section 7.2(c)), and (ii) the board
of directors of Landmark has determined in good faith, after consultation with its financial advisors and outside legal counsel,
that it would be a violation of the directors’ fiduciary duties under applicable Law to make or continue to make the Landmark
Recommendation; provided, that the board of directors of Landmark may not take the actions set forth in this Section 7.2(c) unless:
(i)
Landmark has complied in all material respects with this Section 7.2;
(ii)
Landmark has provided Simmons at least five Business Days prior written notice of its intention to take such action and
a reasonable description of the events or circumstances giving rise to its determination to take such action (including all necessary
information under Section 7.2(b));
(iii)
during such five Business Day period, Landmark has and has caused its financial advisors and outside legal counsel to consider
and negotiate with Simmons in good faith (to the extent Simmons desires to so negotiate) regarding any proposals, adjustments
or modifications to the terms and conditions of this Agreement proposed by Simmons; and
(iv)
the board of directors of Landmark has determined in good faith, after consultation with its financial advisors and outside
legal counsel and considering the results of such negotiations and giving effect to any proposals, amendments or modifications
proposed to by Simmons, if any, that such Superior Proposal remains a Superior Proposal and that it would nevertheless be a violation
of the director’s fiduciary duties under applicable Law to make or continue to make the Landmark Recommendation.
Any material
amendment to any Acquisition Proposal, will be deemed to be a new Acquisition Proposal for purposes of this Section 7.2(c) and
will require a new determination and notice period as referred to in this Section 7.2(c).
(d)
Landmark and Landmark Subsidiaries shall, and Landmark shall direct its Representatives to, (i) immediately cease
and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted heretofore
with respect to any offer or proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, (ii)
request the prompt return or destruction of all confidential information previously furnished to any Person (other than Simmons,
Simmons Bank and their Representatives) that has made or indicated an intention to make an Acquisition Proposal, (iii) not waive
or amend any “standstill” provision or provisions of similar effect to which it is a party or of which it is a beneficiary
and shall strictly enforce any such provisions.
7.3.
Exchange Listing.
Simmons
shall use its reasonable best efforts to list, prior to the Effective Time, on Nasdaq, subject to official notice of issuance,
the shares of Simmons Common Stock to be issued to the holders of Landmark Common Stock pursuant to this Agreement, and Simmons
shall give all notices and make all filings with Nasdaq required in connection with the transactions contemplated herein.
7.4.
Consents of Regulatory Authorities.
(a)
The Parties and their respective Subsidiaries shall cooperate with each other and use their respective reasonable best
efforts to prepare all documentation, to effect all applications, notices, petitions, and filings and to obtain all Permits and
Consents of all third parties and Regulatory Authorities that are necessary or advisable to consummate the transactions contemplated
by this Agreement (including the Merger), and to comply with the terms and conditions of all such Permits and Consents. Each of
the Parties shall use its respective reasonable best efforts to resolve objections, if any, which may be asserted with respect
to this Agreement or the transactions contemplated hereby by any Regulatory Authority or under any applicable Law or Order. Notwithstanding
the foregoing, in no event shall any Simmons Entities be required, and the Landmark Entities shall not be permitted (without Simmons’s
prior written consent in its sole discretion), to take any action, or commit to take any action, or to accept any restriction
or condition, involving the Simmons Entities or the Landmark Entities, which is materially burdensome on Simmons’s or Simmons
Bank’s business or on the business of Landmark, in each case following the Closing, or which would likely reduce the economic
benefits of the transactions contemplated by this Agreement to Simmons or Simmons Bank to such a degree that Simmons would not
have entered into this Agreement had such condition or restriction been known to it at the date hereof (any such condition or
restriction, a “Burdensome Condition”).
(b)
Each of the Parties shall have the right to review in advance, and to the extent practicable each will consult with
the other, in each case subject to applicable Laws relating to the exchange of information, with respect to, all material written
information submitted to any third party or Regulatory Authority in connection with the transactions contemplated by this Agreement;
provided, that Landmark shall not have the right to review portions of material filed by Simmons or Simmons Bank with a Regulatory
Authority that contain competitively sensitive business or other proprietary information or confidential supervisory information.
In exercising the foregoing rights, each of the Parties agrees to act reasonably and as promptly as practicable. Each Party
agrees that it will consult with the other Party with respect to the obtaining of all Permits and Consents of third parties and
Regulatory Authorities necessary or advisable to consummate the transactions contemplated by this Agreement and each Party will
keep the other Party apprised of the status of material matters relating to completion of the transactions contemplated hereby,
including advising the other Party upon receiving any communication from a Regulatory Authority the Consent of which
is required for the consummation of the Merger and the other transactions contemplated by this Agreement that causes such Party
to believe that there is a reasonable likelihood that any Requisite Regulatory Approval will not be obtained or that the receipt
of such Requisite Regulatory Approval may be materially delayed.
(c)
Each Party agrees, upon request, subject to applicable Laws, to promptly furnish the other Party with all information concerning
itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable
in connection with the Registration Statement, Proxy/Prospectus or any other statement, filing, notice or application made by
or on behalf of Simmons, Landmark or any of their respective Subsidiaries to any third party and/or Regulatory Authority in connection
with the transactions contemplated by this Agreement.
7.5.
Access to Information; Confidentiality and Notification of Certain Matters.
(a)
Landmark shall promptly advise Simmons and Simmons Bank of any fact, change, event, effect, condition, occurrence, development
or circumstance (i) that has had or would reasonably be expected to have, either individually or in the aggregate, a Material
Adverse Effect on Landmark or (ii) which Landmark believes would or would be reasonably likely to cause or constitute a material
breach of any of its representations, warranties, covenants or agreements contained herein or that reasonably could be expected
to give rise, individually or in the aggregate, to the failure of a condition in ARTICLE 8; provided, that any failure to give
notice in accordance with the foregoing with respect to any breach shall not be deemed to constitute a violation of this Section
7.5(a) or the failure of any condition set forth in Section 8.2 or 8.3 to be satisfied, or otherwise constitute a breach of this
Agreement by the Party failing to give such notice, in each case unless the underlying breach would independently result in a
failure of the conditions set forth in Section 8.2 or 8.3 to be satisfied; and provided, further, that the delivery of any
notice pursuant to this Section 7.5(a) shall not cure any breach of, or noncompliance with, any other provision of this Agreement
or limit the remedies available to Simmons or Simmons Bank.
(b)
Prior to the Effective Time, Landmark shall permit the Representatives of Simmons and Simmons Bank to make or cause to
be made such investigation of the business, Assets, information technology systems, Contracts, Books and Records, and personnel
and such other information of it and its Subsidiaries and of their respective financial and legal conditions as Simmons and Simmons
Bank reasonably request and furnish to Simmons and Simmons Bank promptly all other information concerning its business, Assets,
information technology systems, Contracts, Books and Records, and personnel and such other information as Simmons and Simmons
Bank may reasonably request, provided that such investigation or requests shall not interfere unnecessarily with normal operations
of Landmark. No investigation by Simmons or Simmons Bank shall affect or be deemed to modify or waive the representations, warranties,
covenants and agreements of Landmark in this Agreement, or the conditions of such Party’s obligation to consummate the transactions
contemplated by this Agreement. Neither Simmons nor Landmark nor any of their respective Subsidiaries shall be required to provide
access to or to disclose information where such access or disclosure would violate or prejudice the rights of Simmons’s
or Landmark’s, as the case may be, customers, jeopardize the attorney-client privilege of the institution in possession
or control of such information (after giving due consideration to the existence of any common interest, joint defense or similar
agreement between the Parties) or contravene any Law, fiduciary duty or binding Contract entered into prior to the date of this
Agreement. The Parties will make appropriate substitute disclosure arrangements under circumstances in which the restrictions
of the preceding sentence apply. Without limiting the foregoing, and for the avoidance of doubt, subject to applicable Law, Landmark
shall permit the Representatives of Simmons and Simmons Bank to observe meetings of committees or similar groups established to
review and approve potential Loans or similar matters.
(c)
Each Party shall, and shall cause its Subsidiaries and Representatives to, hold any information obtained in connection
with this Agreement in accordance with the terms of the Mutual Nondisclosure Agreement, dated February 3, 2021, between Simmons
and Landmark (the “Confidentiality Agreement”).
(d)
Prior to the Effective Time, Landmark shall promptly notify Simmons and Simmons Bank of any material change in the normal
course of its business or in the operation of its properties and, to the extent permitted by applicable Law, of any material Litigation
(or communications indicating that the same may be
contemplated), or the institution or the threat of a material Litigation involving
Landmark or any other Landmark Entity. In addition, Landmark shall engage third parties reasonably satisfactory to Landmark, Simmons
and Simmons Bank, at Simmons’s or Simmons Bank’s expense, to conduct such reviews of Landmark’s regulatory compliance
program as Simmons or Simmons Bank may reasonably request, and, subject to Section 10.15, Landmark shall disclose the results
of those reviews to Simmons and Simmons Bank.
7.6.
Press Releases.
The
Parties shall consult with each other before issuing any press release or other public disclosure or communication (including
communications to employees, agents and contractors) related to this Agreement or the transactions contemplated hereby and shall
not issue such press release or other public disclosure without the prior written consent of the other Party (which consent shall
not be unreasonably withheld, delayed or conditioned); provided, that nothing in this Section 7.6 shall be deemed to prohibit
any Party from making any press release or other public disclosure as may upon the advice of the Party’s outside counsel
be required by Law or the rules or regulations of any United States or non-United States securities exchange, in which case the
Party required to make the release or disclosure shall use its reasonable best efforts to allow the other Party reasonable time
to comment on such release or disclosure in advance of the issuance thereof. The Parties have agreed upon the form of a joint
press release announcing the execution of this Agreement.
7.7.
Tax Treatment.
(a)
Each of the Parties intends, and undertakes and agrees to use its respective reasonable best efforts to cause, the Merger,
and to take no action which would cause the Merger not, to qualify as a “reorganization” within the meaning of Section
368(a) of the Internal Revenue Code for federal income Tax purposes, and none of the Parties shall take any action that would
cause the Merger to not so qualify. The Parties shall cooperate and use their reasonable best efforts in order to obtain the Tax
Opinion. The Parties adopt this Agreement as a “plan of reorganization” within the meaning of Treasury Regulations
Section 1.368-2(g) and for purposes of Sections 354, 361 and 368 of the Internal Revenue Code.
(b)
Each of the Parties shall use its respective reasonable best efforts to cause their appropriate officers to execute and
deliver to Covington certificates containing appropriate representations and covenants, reasonably satisfactory in form and substance
to Covington, at such time or times as may be reasonably requested by Covington, including as of the effective date of the Proxy
Statement/Prospectus and the Closing Date, in connection with such counsel’s deliveries of opinions with respect to the
Tax treatment of the Merger.
(c)
Unless otherwise required pursuant to a “determination” within the meaning of Section 1313(a) of the Internal
Revenue Code, each Party shall report the Merger as a “reorganization” within the meaning of Section 368(a) of the
Internal Revenue Code and shall not take any inconsistent position therewith in any Tax Return.
(d)
Prior to Closing, Landmark shall (i) deliver to Simmons and mail to the IRS in accordance with Treasury Regulation Section
1.897-2(h) (1) a statement, in form and substance satisfactory to Simmons, certifying that every Landmark Entity is not, and has
not been during the applicable period specified in Section 897(c)(1)(A)(ii) of the Internal Revenue Code, a “United States
real property holding company” within the meaning of Section 897(c)(2) of the Internal Revenue Code, which statement shall
satisfy the requirements of Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3), together with (2) a notice prepared and
executed in accordance with Treasury Regulations Section 1.897-2(h) to the IRS; and (ii) together therewith, furnish to Simmons
proof of mailing the items described in subclause (i).
7.8.
Employee Benefits and Contracts.
(a)
For a period of one year following the Effective Time, except as contemplated by this Agreement, Simmons or Simmons Bank
shall provide generally to employees who are actively employed by a Landmark Entity on the Closing Date (“Covered Employees”)
while employed by Simmons or Simmons Bank following the Closing Date employee benefits under Simmons Benefit Plans, on terms and
conditions which are, in the aggregate, substantially comparable to those provided by Simmons Entities to their similarly situated
employees; provided, that in no event shall any Covered Employee be eligible to participate in any closed or frozen plan of any
Simmons Entity. Until such time as Simmons or Simmons Bank shall cause the Covered Employees to participate in the applicable
Simmons Benefit Plans, the continued participation of the Covered Employees in the Landmark Benefit Plans shall be deemed to satisfy
the foregoing provisions of this clause (it being understood that participation in Simmons Benefit Plans may commence at different
times with respect to each of Simmons Benefit Plans). For purposes of determining eligibility to participate and vesting under
Simmons Benefit Plans, and for purposes of determining a Covered Employee’s entitlement to paid time off under Simmons’s
or Simmons Bank’s paid time off program, the service of the Covered Employees with a Landmark Entity prior to the Effective
Time shall be treated as service with a Simmons Entity participating in such Simmons Benefit Plans, to the same extent that such
service was formally recognized by the Landmark Entities for purposes of a similar benefit plan; provided, that such recognition
of service shall not (i) operate to duplicate any benefits of a Covered Employee with respect to the same period of service or
(ii) apply for purposes of any plan, program or arrangement (x) under which similarly-situated employees of Simmons Entities
do not receive credit for prior service, (y) that is grandfathered or frozen, either with respect to level of benefits or participation,
or (z) for purposes of retiree medical benefits or level of benefits under a defined benefit pension plan.
(b)
Prior to the Closing Date, the Landmark Entities shall take all necessary action (including without limitation the adoption
of resolutions and plan amendments and the delivery of any required notices) to terminate, effective as of no later than the day
before the Closing Date, any Landmark Benefit Plan that is intended to constitute a tax-qualified defined contribution plan under
Internal Revenue Code Section 401(k) (a “401(k) Plan”). Landmark shall provide Simmons with a copy of the resolutions,
plan amendments, notices and other documents prepared to effectuate the termination of the 401(k) Plans in advance and give Simmons
a reasonable opportunity to comment on such documents (which comments shall be considered in good faith), and prior to the Closing
Date, Landmark shall provide Simmons with the final documentation evidencing that the 401(k) Plans have been terminated.
(c)
Upon request by Simmons in writing prior to the Closing Date, the Landmark Entities shall cooperate in good faith with
Simmons prior to the Closing Date to amend, freeze, terminate or modify any other Landmark Benefit Plan to the extent and in the
manner determined by Simmons effective upon the Closing Date (or at such different time mutually agreed to by the Parties) and
consistent with applicable Law. Landmark shall provide Simmons with a copy of the resolutions, plan amendments, notices and other
documents prepared to effectuate the actions contemplated by this Section 7.8(c), as applicable, and give Landmark a reasonable
opportunity to comment on such documents (which comments shall be considered in good faith), and prior to the Closing Date, Landmark
shall provide Simmons with the final documentation evidencing that the actions contemplated herein have been effectuated.
(d)
Without limiting the generality of Section 10.4, nothing in this Agreement, expressed or implied, is intended to confer
upon any Person, including any current or former employee, officer, director or consultant of Landmark or any of its Subsidiaries
or Affiliates, any rights, remedies, obligations, or liabilities under or by reason of this Agreement. In no event shall the terms
of this Agreement: (i) establish, amend, or modify any Landmark Benefit Plan or any “employee benefit plan” as defined
in Section 3(3) of ERISA, or any other benefit plan, program, agreement or arrangement maintained or sponsored by Simmons, Landmark
or any of their respective Affiliates; (ii) alter or limit the ability of the Surviving Bank, Simmons or any
of their Subsidiaries
or Affiliates to amend, modify or terminate any Landmark Benefit Plan, employment agreement or any other benefit or employment
plan, program, agreement or arrangement after the Closing Date; or (iii) confer upon any current or former employee, officer,
director or consultant of Landmark or any of its Subsidiaries or Affiliates, any right to employment or continued employment or
continued service with Simmons or any Simmons Subsidiaries, the Surviving Bank or the Landmark Entities, or constitute or create
an employment agreement with any employee, or interfere with or restrict in any way the rights of the Surviving Bank, Landmark,
Simmons or any Subsidiary or Affiliate thereof to discharge or terminate the services of any employee, officer, director or consultant
of Landmark or any of its Subsidiaries or Affiliates at any time for any reason whatsoever, with or without cause.
(e)
On the Closing Date, Landmark shall provide Simmons with a list of employees who have suffered an “employment loss”
(as defined in the WARN Act) in the 90 days preceding the Closing Date or had a reduction in hours of a least 50% in the 180 days
preceding the Closing Date, each identified by date of employment loss or reduction in hours, employing entity and facility location.
7.9.
Indemnification.
(a)
For a period of six years after the Effective Time, the Surviving Bank shall indemnify, defend and hold harmless the present
and former directors or officers of the Landmark Entities (each, an “Indemnified Party”), against all Liabilities
incurred in connection with any Litigation arising out of or pertaining to, the fact that such person is or was a director or
officer of the Landmark Entities or, at Landmark’s request, of another corporation, partnership, joint venture, trust or
other enterprise and pertaining to matters, acts or omissions existing or occurring at or prior to the Effective Time (including
matters, acts or omissions occurring in connection with the approval of this Agreement and the transactions contemplated by this
Agreement) (each a “Claim”), whether asserted or claimed prior to, at or after the Effective Time, to the fullest
extent permitted under the Charter and Bylaws of Landmark as in effect as of the date of this Agreement (subject to applicable
Law), including provisions relating to advances of expenses incurred in the defense of any Litigation; provided, that the Indemnified
Party to whom expenses are advanced provides a written undertaking to repay such advances if it is ultimately determined that
such Indemnified Party is not entitled to indemnification.
(b)
The Surviving Bank shall use its reasonable best efforts (and Landmark shall cooperate prior to the Effective Time in these
efforts) to maintain in effect for a period of six years after the Effective Time Landmark’s existing directors’ and
officers’ liability insurance policy (provided that the Surviving Bank may substitute therefor (i) policies of at least
the same coverage and amounts containing terms and conditions which are substantially no less advantageous to the insured or (ii)
with the consent of Landmark given prior to the Effective Time, any other policy) with respect to claims arising from facts or
events which occurred prior to the Effective Time; provided, that the Surviving Bank shall not be obligated to make aggregate
premium payments for such six-year period in respect of such policy (or coverage replacing such policy) which exceed, for the
portion related to Landmark’s directors and officers, 200% of the annual premium payments currently paid on Landmark’s
current policy in effect as of the date of this Agreement (the “Maximum Amount”). If the amount of the premiums
necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, the Surviving Bank shall use its reasonable
best efforts to maintain the most advantageous policies of directors’ and officers’ liability insurance obtainable
for a premium equal to the Maximum Amount. In lieu of the foregoing, Simmons, or Landmark in consultation with Simmons, may obtain
on or prior to the Effective Time, a six-year “tail” prepaid policy providing equivalent coverage to that described
in this Section 7.9(b) at a premium not to exceed the Maximum Amount. If the premium necessary to purchase such “tail”
prepaid policy exceeds the Maximum Amount, Simmons or Landmark in consultation with Simmons may purchase the most advantageous
“tail” prepaid policy obtainable for a premium equal to the Maximum Amount, and in each case, Simmons and the Surviving
Bank shall have no further obligations under this Section 7.9(b) other than to maintain such “tail” prepaid policy.
(c)
Any Indemnified Party wishing to claim indemnification under Section 7.9(a), upon learning of any such Claim, shall promptly
notify the Surviving Bank thereof. In the event of any such Claim (whether arising before or after the Effective Time): (i) Simmons
or the Surviving Bank shall have the right to assume the defense thereof and Simmons and the Surviving Bank shall not be liable
to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified
Parties in connection with the defense thereof, except that if Simmons or the Surviving Bank elects not to assume such defense
or independent legal counsel for the Indemnified Parties advises that there are substantive issues which raise conflicts of interest
between Simmons or the Surviving Bank and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to
them, and Simmons or the Surviving Bank shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties
as required under, and in accordance with, the Charter and Bylaws of Landmark as in effect as of the date of this Agreement (subject
to applicable Law); provided, that Simmons or the Surviving Bank shall be obligated pursuant to this Section 7.9(c) to pay for
only one firm of counsel for all Indemnified Parties; (ii) the Indemnified Parties will cooperate in the defense of any such Claim;
and (iii) Simmons and the Surviving Bank shall not be liable for any settlement effected without its prior written consent; and
provided, further, that Simmons and the Surviving Bank shall not have any obligation hereunder to any Indemnified Party when and
if a court of competent jurisdiction shall determine, and such determination shall have become final, that the indemnification
of such Indemnified Party in the manner contemplated hereby is prohibited by applicable Law or not required by the Charter and
Bylaws of Landmark as in effect as of the date of this Agreement (subject to applicable Law).
(d)
If the Surviving Bank or any successors or assigns shall consolidate with or merge into any other Person and shall not
be the continuing or surviving Person of such consolidation or merger or if the Surviving Bank (or any successors or assigns)
shall transfer all or substantially all of its Assets to any Person, then and in each case, proper provision shall be made so
that the successors and assigns of the Surviving Bank shall assume the obligations set forth in this Section 7.9.
(e)
The provisions of this Section 7.9 are intended to be for the benefit of and shall be enforceable by, each Indemnified
Party and their respective heirs and Representatives.
(f)
Notwithstanding anything in this Section 7.9 to the contrary, no indemnification payments will be made to an Indemnified
Party with respect to an administrative proceeding or civil action initiated by any federal banking agency unless all of the following
conditions are met: (i) the Simmons Bank’s board of directors determines in writing that the Indemnified Party acted in
good faith and in the best interests of Landmark; (ii) the Simmons Bank’s board of directors determines that the payment
will not materially affect the Simmons Bank’s safety and soundness; (iii) the payment does not fall within the definition
of a prohibited indemnification payment under 12 C.F.R. Part 359; and (iv) the Indemnified Party agrees in writing to reimburse
Simmons Bank, to the extent not covered by permissible insurance, for payments made in the event that the administrative or civil
action instituted by a banking Regulatory Authority results in a final order or settlement in which the Indemnified Party is assessed
a civil money penalty, is prohibited from banking, or is required to cease an action or perform an affirmative action.
7.10.
Landmark Operating Functions.
Landmark
shall cooperate with Simmons and Simmons Bank in connection with planning for the efficient and orderly combination of the Parties
and the operation of the Surviving Bank, and in preparing for the consolidation of appropriate operating functions to be effective
at the Effective Time or such later date as Simmons may decide. Each Party shall cooperate with the other Party in preparing to
execute after the Effective Time conversion or consolidation of systems and business operations generally (including by entering
into customary confidentiality, non-disclosure and similar agreements with such service providers or the other Party). Prior to
Effective Time, each Party shall exercise, consistent with terms and conditions of this Agreement, complete control and supervision
over its and its Subsidiaries’ respective operations.
7.11.
Shareholder Litigation.
Each
of Landmark and Simmons shall promptly notify each other in writing of any action, arbitration, audit, hearing, investigation,
litigation, suit, subpoena or summons issued, commenced, brought, conducted or heard by or before, or otherwise involving, any
Regulatory Authority or arbitrator pending or, to the Knowledge of Landmark or Simmons, as applicable, threatened against Landmark,
Simmons or any of their respective Subsidiaries or Representatives that (a) questions or would reasonably be expected to question
the validity of this Agreement or the other agreements contemplated hereby or thereby or any actions taken or to be taken by Landmark,
Simmons or their respective Subsidiaries with respect hereto or thereto or (b) seeks to enjoin or otherwise restrain the transactions
contemplated hereby or thereby. Landmark shall give Simmons prompt notice of any shareholder litigation against Landmark or its
directors or officers relating to the transactions contemplated by this Agreement and shall give Simmons every opportunity to
participate in the defense or settlement of such litigation, provided that no such settlement shall be agreed to by any Landmark
Entity without Simmons’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
7.12.
Legal Conditions to Merger; Additional Agreements.
Subject
to Sections 7.1 and 7.4 of this Agreement, each of Landmark and Simmons shall, and shall cause its Subsidiaries to, use their
reasonable best efforts (a) to take, or cause to be taken, all actions necessary, proper or advisable to comply promptly with
all legal and regulatory requirements that may be imposed on such Party or its Subsidiaries with respect to the Merger and, subject
to the conditions set forth in ARTICLE 8 hereof, to consummate the transactions contemplated by this Agreement and (b) to obtain
(and to cooperate with the other Party to obtain) any Permit or Consent by, any Regulatory Authority and any other third party
that is required to be obtained by Landmark or Simmons or any of their respective Subsidiaries in connection with, or to effect,
the Merger and the other transactions contemplated by this Agreement. In case at any time after the Effective Time any further
action is necessary or desirable to carry out the purposes of this Agreement (including, any merger between a Subsidiary of Simmons,
on the one hand, and a Subsidiary of Landmark, on the other hand) or to vest the Surviving Bank with full title to all Assets,
rights, Consents, Permits, immunities and franchises of any of the Parties to the Merger, the proper officers and directors of
each Party and their respective Subsidiaries shall take all such necessary action as may be reasonably requested by Simmons.
7.13.
Closing Financial Statements.
At
least eight Business Days prior to the Effective Time, Landmark shall provide Simmons with Landmark’s consolidated financial
statements presenting the financial condition of Landmark and its Subsidiaries as of the close of business on the last day of
the last month ended prior to the Effective Time and Landmark’s results of operations, cash flows, and shareholders’
equity for the period from January 1, 2021, through the close of business on the last day of the last month ended prior to the
Effective Time (the “Closing Financial Statements”); provided, that if the Effective Time occurs on or before
the 15th Business Day of the month, Landmark shall have provided consolidated financial statements as of and through the second
month preceding the Effective Time. Such Closing Financial Statements shall have been prepared in accordance with GAAP and regulatory
accounting principles and other applicable legal and accounting requirements, and reflect all period-end accruals and other adjustments.
Such Closing Financial Statements shall also reflect as of their date (a) accruals for all fees, costs and expenses incurred or
expected to be incurred (whether or not doing so is in accordance with GAAP) in connection (directly or indirectly) with the transactions
contemplated by this Agreement, (b) the capital ratios set forth in Section 8.2(f), and (c) the asset quality metrics set forth
in Section 8.2(d) and shall be accompanied by a certificate of Landmark’s chief financial officer, dated as of the date
of such delivery of the Closing Financial Statements, to the effect that such financial statements meet the requirements of this
Section 7.13 and continue to reflect accurately, as of the date of such certificate, the consolidated financial condition, results
of operations, cash flows and shareholders’ equity of Landmark in all material respects (which certification shall be reaffirmed
in the certificates required to be delivered pursuant to Section 8.2(c)).
7.14.
Dividends.
After
the date of this Agreement, each of Simmons and Landmark shall coordinate with the other regarding the declaration of any dividends
in respect of Simmons Common Stock and Landmark Common Stock and the record dates and payment dates relating thereto, it being
the intention of the Parties that, Holders of Landmark Common Stock shall not receive two or more dividends, or fail to receive
one dividend, attributable to any particular quarter with respect to their shares of Landmark Common Stock and any shares of Simmons
Common Stock any such Holder receives in exchange therefor in the Merger. For the avoidance of doubt, the Parties acknowledge
and agree that the dividends by Landmark expressly contemplated in Section 6.2(c) will not be counted as two or more dividends
if Holders of Landmark Common Stock are eligible to receive a dividend for shares of Simmons Common Stock attributable to the
third quarter of 2021 or the first quarter of 2022.
7.15.
Change of Method.
Simmons
may at any time prior to the Effective Time change the method or structure of effecting the combination of Landmark and Simmons
Bank (including by providing for the merger of Landmark with a wholly owned Subsidiary of Simmons) if and to the extent requested
by Simmons or Simmons Bank, and Landmark agrees to enter into such amendments to this Agreement as Simmons or Simmons Bank may
reasonably request in order to give effect to such restructuring; provided, that no such change or amendment shall (i) alter or
change the amount or kind of the Merger Consideration provided for in this Agreement, (ii) adversely affect the Tax treatment
of the Merger with respect to Landmark’s shareholders, or (iii) materially delay or impede the consummation of the transactions
contemplated by this Agreement.
7.16.
Restructuring Efforts.
If
Landmark shall have failed to obtain the Landmark Shareholder Approval at the duly convened Landmark’s Shareholders’
Meeting, or any adjournment or postponement thereof, each of the Parties shall in good faith use its reasonable best efforts to
negotiate a restructuring of the transaction provided for herein (it being understood that no Party shall have any obligation
to alter or change any material terms, including the amount or kind of the Merger Consideration, in a manner adverse to such Party
or its shareholders or adversely affect the Tax treatment of the Merger with respect to Landmark’s shareholders) and/or
resubmit this Agreement or the transactions contemplated hereby (or as restructured pursuant to this Section 7.16) to Landmark’s
shareholders for approval.
7.17.
Takeover Statutes.
None
of Simmons, Simmons Bank or Landmark or their respective board of directors shall take any action that would cause any Takeover
Statute to become applicable to this Agreement, the Merger, or any of the other transactions contemplated hereby, and each shall
take all necessary steps to exempt (or ensure the continued exemption of) the Merger and the other transactions contemplated hereby
from any applicable Takeover Statute now or hereafter in effect. If any Takeover Statute may become, or may purport to be, applicable
to the transactions contemplated hereby, each of Simmons, Simmons Bank and Landmark and the members of their respective board
of directors will grant such approvals and take such actions as are necessary so that the transactions contemplated by this Agreement
may be consummated as promptly as practicable on the terms contemplated hereby and otherwise act to eliminate or minimize the
effects of any Takeover Statute on any of the transactions contemplated by this Agreement, including, if necessary, challenging
the validity or applicability of any such Takeover Statute.
7.18.
Document Archiving.
Landmark
shall, prior to the Closing Date, (i) electronically archive and index copies of all documents associated with Loans or the underwriting,
servicing, administration, or monitoring thereof, to the extent requested by Simmons or Simmons Bank, (ii) archive in a central
location all physical documents associated with Loans or the underwriting, servicing, administration, or monitoring thereof, to
the extent requested by Simmons or Simmons Bank, and (iii) comply with any other reasonable requests by Simmons or Simmons Bank
regarding documents associated with Loans or the underwriting, servicing, administration, or monitoring thereof.
ARTICLE
8
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
8.1.
Conditions to Obligations of Each Party.
The
respective obligations of each Party to consummate the Merger and the other transactions contemplated hereby are subject to the
satisfaction at or prior to the Effective Time of the following conditions, unless waived by both Parties pursuant to Section
10.6:
(a)
Shareholder Approval. The Landmark Shareholder Approval shall have been obtained.
(b)
Regulatory Approvals. (i) All required regulatory Permits or Consents from the Federal Reserve, the SBD, the TDFI,
the FDIC, and any other Regulatory Authority and (ii) any other regulatory Permits or Consents contemplated by Section 7.4 the
failure of which to obtain has had or would reasonably be expected to have, either individually or in the aggregate, a Material
Adverse Effect on Simmons, Simmons Bank and Landmark (considered as a consolidated entity), in each case required to consummate
the transactions contemplated by this Agreement, including the Merger, shall have been obtained and shall remain in full force
and effect and all statutory waiting periods in respect thereof shall have expired (all such approvals and the expiration of all
such waiting periods being referred to as the “Requisite Regulatory Approvals”); provided that no such Requisite
Regulatory Approval shall impose a Burdensome Condition as determined by Simmons in its sole discretion.
(c)
Legal Proceedings. No court or Regulatory Authority of competent jurisdiction shall have enacted, issued, promulgated,
enforced or entered any Law or Order (whether temporary, preliminary or permanent) or taken any other action which prohibits,
restricts or makes illegal the consummation of the transactions contemplated by this Agreement (including the Merger).
(d)
Registration Statement. The Registration Statement shall be effective under the Securities Act, no stop orders suspending
the effectiveness of the Registration Statement shall have been issued, and no action, suit, proceeding or investigation by the
SEC to suspend the effectiveness thereof shall have been initiated and be continuing.
(e)
Exchange Listing. The shares of Simmons Common Stock issuable pursuant to the Merger shall have been approved for
listing on Nasdaq, subject to official notice of issuance (if such approval is required by Nasdaq).
(f)
Tax Matters. The Parties shall have received a written opinion of Covington, in form reasonably satisfactory to
such Parties (the “Tax Opinion”), to the effect that the Merger will qualify as a “reorganization”
within the meaning of Section 368(a) of the Internal Revenue Code. In rendering such Tax Opinion, such counsel shall be entitled
to rely upon representations of officers of Landmark and Simmons reasonably satisfactory in form and substance to such counsel.
8.2.
Conditions to Obligations of Simmons and Simmons Bank.
The
obligations of Simmons and Simmons Bank to consummate the Merger and the other transactions contemplated hereby are subject to
the satisfaction at or prior to the Effective Time of the following conditions, unless waived by Simmons pursuant to Section 10.6:
(a)
Representations and Warranties. For purposes of this Section 8.2(a), the accuracy of the representations and warranties
of Landmark set forth in this Agreement shall be assessed as of the date of this Agreement and as of the Effective Time with the
same effect as though all such representations and warranties had been made on and as of the Effective Time (provided that representations
and warranties which are confined to a specified date shall speak only as of such date). The representations and warranties of
Landmark set forth in Sections 4.1, 4.2, 4.3(a), 4.3(c), 4.4(b), 4.4(c), 4.9(a), 4.14, 4.15, 4.20, and 4.34 shall be true and
correct. The representations and warranties of Landmark set forth in Sections 4.3(b), 4.4(a), 4.5, 4.6, 4.24, 4.26, and 4.27 shall
be true and correct in all material respects; provided, that, for purposes of this sentence only, those representations and warranties
which are qualified by references to “material” or “Material Adverse Effect” or to the “Knowledge”
of any Person shall be deemed not to include such qualifications. The representations and warranties set forth in each other section
in ARTICLE 4 shall, in the aggregate, be true and correct in all respects except where the failure of such representations and
warranties to be true and correct has not had or would not reasonably be expected to have, either individually or in the aggregate,
a Material Adverse Effect; provided, that, for purposes of this sentence only, those representations and warranties which are
qualified by references to “material” or “Material Adverse Effect” or to the “Knowledge” of
any Person shall be deemed not to include such qualifications.
(b)
Performance of Agreements and Covenants. Landmark shall have performed in all material respects all obligations,
covenants and agreements required to be performed by it under this Agreement at or prior to the Effective Time.
(c)
Certificates. Landmark shall have delivered to Simmons (i) a certificate, dated as of the Closing Date and
signed on its behalf by its chief executive officer and its chief financial officer, to the effect that the conditions set forth
in Section 8.1 as such conditions relate to Landmark and in Sections 8.2(a) and 8.2(b) have been satisfied and (ii) certified
copies of resolutions duly adopted by Landmark’s board of directors and shareholders evidencing the taking of all corporate
action necessary to authorize the execution, delivery and performance of this Agreement, and the consummation of the transactions
contemplated hereby, all in such reasonable detail as Simmons and its counsel shall request.
(d)
Asset Quality. In each case as reflected in the Closing Financial Statements, (i) Delinquent Loans shall not exceed
0.90% of total Loans, (ii) Non-Performing Loans shall not exceed 1.00% of total Loans, (iii) the calculation of Non-Performing
Assets to total Assets shall not be in excess of 0.90%, (iv) Landmark’s Classified Assets to Tier 1 capital plus ALLL ratio
shall not be in excess of 12.50%, (v) Non-Performing Assets shall not exceed $8,500,000, (vi) Classified Assets shall not exceed
$14,000,000, and (vii) Landmark’s ALLL to total Loans shall exceed 0.75%.
(e)
Dissenting Shares. Holders of not more than five percent of the outstanding shares of Landmark Common Stock shall
have demanded, properly and in writing, appraisal for such shares of Landmark Common Stock held by each such holder under Section
48-23-101 et seq.
(f)
Regulatory Capital. In each case as reflected in the Closing Financial Statements, (i) Landmark shall be “well
capitalized” as defined under applicable Law, (ii) Landmark’s Tier 1 leverage ratio shall be no less than 9.75%, (iii)
Landmark’s Tier 1 risked-based capital ratio shall be no less than 13.75%, (iv) Landmark’s total risked-based capital
ratio shall be no less than 14.5%, (v) Landmark’s common equity Tier 1 ratio shall be no less than 13.75%, and (vi) Landmark
shall not have received any notification from TDFI or FDIC to the effect that the
capital of Landmark is insufficient to permit
Landmark to engage in all aspects of its business and its currently proposed businesses without material restrictions, including
the imposition of a Burdensome Condition.
(g)
Termination of Contracts. Landmark shall have delivered to Simmons evidence satisfactory to Simmons in its discretion
that each Contract listed in Section 8.2(g) of Landmark’s Disclosure Memorandum and Section 8.2(g) of Simmons’s Disclosure
Memorandum has been terminated in its entirety.
(h)
Burdensome Condition. No Requisite Regulatory Approval contains, shall have resulted in or would reasonably be expected
to result in, the imposition of a Burdensome Condition.
(i)
Document Archiving. Landmark shall have delivered to Simmons and Simmons Bank a certificate, dated as of the Closing
Date and signed on its behalf by its chief executive officer and its chief financial officer (and in such reasonable detail as
Simmons, Simmons Bank and their counsel shall request), to the effect that it has fulfilled its obligations under Section 7.18
in all material respects.
8.3.
Conditions to Obligations of Landmark.
The
obligations of Landmark to consummate the Merger and the other transactions contemplated hereby are subject to the satisfaction
at or prior to the Effective Time of the following conditions, unless waived by Landmark pursuant to Section 10.6:
(a)
Representations and Warranties. For purposes of this Section 8.3(a), the accuracy of the representations and warranties
of Simmons and Simmons Bank set forth in this Agreement shall be assessed as of the date of this Agreement and as of the Effective
Time with the same effect as though all such representations and warranties had been made on and as of the Effective Time (provided
that representations and warranties which are confined to a specified date shall speak only as of such date). The representations
and warranties of Simmons and Simmons Bank set forth in Sections 5.4(a), 5.4(c) and 5.9 shall be true and correct (except for
inaccuracies which are de minimis in amount) (it being understood that, for purposes of determining the accuracy of such representations
and warranties, the standard set forth in Section 5.1 shall be disregarded). The representations and warranties of Simmons and
Simmons Bank set forth in Sections 5.4(b), 5.13 and 5.14 shall be true and correct in all material respects (it being understood
that, for purposes of determining the accuracy of such representations and warranties, the standard set forth in Section 5.1 shall
be disregarded). Subject to the standard set forth in Section 5.1, the representations and warranties set forth in each other
section in ARTICLE 5 shall be true and correct in all respects.
(b)
Performance of Agreements and Covenants. Simmons shall have performed in all material respects all obligations,
covenants and agreements required to be performed by it under this Agreement at or prior to the Effective Time.
(c)
Certificates. Simmons shall have delivered to Landmark (i) a certificate, dated as of the Closing Date and
signed on its behalf by its chief executive officer and its chief financial officer, to the effect that the conditions set forth
in Section 8.1 as such conditions relate to Simmons and in Sections 8.3(a) and 8.3(b) have been satisfied and (ii) certified
copies of resolutions duly adopted by Simmons’s board of directors evidencing the taking of all corporate action necessary
to authorize the execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated
hereby, all in such reasonable detail as Landmark and its counsel shall request.
ARTICLE
9
TERMINATION
9.1.
Termination.
Notwithstanding
any other provision of this Agreement, and notwithstanding the approval of this Agreement by the shareholders of Landmark, this
Agreement may be terminated and the Merger abandoned at any time prior to the Effective Time:
(a)
by mutual written agreement of Simmons, Simmons Bank and Landmark.
(b)
by any of Simmons, Simmons Bank or Landmark, by written notice to the other Parties, in the event (i) (A) any Regulatory
Authority has denied a Requisite Regulatory Approval and such denial has become final, or has advised any Party that it will not
grant (or intends to rescind or revoke if previously approved) a Requisite Regulatory Approval or (B) any Regulatory Authority
shall have requested that Simmons, Simmons Bank, Landmark or any of their respective Affiliates withdraw (other than for technical
reasons), and not be permitted to resubmit within 60 days, any application with respect to a Requisite Regulatory Approval, unless
in each case the failure to obtain the Requisite Regulatory Approval shall be due to the failure of the Party seeking to terminate
this Agreement to perform or observe the obligations, covenants and agreements of such Party set forth herein, (ii) subject to
the terminating Party’s compliance with Section 7.16, the shareholders of Landmark fail to vote their approval of the matters
relating to this Agreement and the transactions contemplated hereby at Landmark’s Shareholders’ Meeting where such
matters were presented to such shareholders for approval and voted upon (taking into account any adjournment or postponement thereof
as required by this Agreement), or (iii) any Law or Order permanently restraining, enjoining or otherwise prohibiting the consummation
of the transactions contemplated by this Agreement shall have become final and nonappealable, provided that the Party seeking
to terminate this Agreement pursuant to this Section 9.1(b)(iii) shall have used its reasonable best efforts to contest, appeal
and remove such Law or Order;
(c)
by any of Simmons, Simmons Bank or Landmark, by written notice to the other Parties, in the event that the Merger shall
not have been consummated by March 1, 2022, if the failure to consummate the transactions contemplated hereby on or before such
date is not caused by any breach of this Agreement by the Party electing to terminate pursuant to this Section 9.1(c);
(d)
by Simmons or Simmons Bank, by written notice to Landmark, in the event that the board of directors of Landmark has (i)
failed to make the Landmark Recommendation or otherwise effected a Change in the Landmark Recommendation, (ii) breached the terms
of Section 7.2 in any respect adverse to Simmons or Simmons Bank, or (iii) breached its obligations under Section 7.1 by failing
to call, give notice of, convene or hold Landmark’s Shareholders’ Meeting in accordance with Section 7.1;
(e)
by any of Simmons, Simmons Bank or Landmark, by written notice to the other Parties (provided that the terminating Party
is not then in material breach of any representation, warranty, covenant or other agreement contained herein), if there shall
have been a breach of any of the covenants or agreements or any of the representations or warranties (or any such representation
or warranty shall cease to be true) set forth in this Agreement on the part of Landmark, in the case of a termination by Simmons
or Simmons Bank, or Simmons or Simmons Bank, in the case of a termination by Landmark, which breach or failure to be true, either
individually or in the aggregate with all other breaches by such Party (or failures of such representations or warranties to be
true), would constitute, if occurring or continuing on the Closing Date, the failure of a condition set forth in Section 8.2,
in the case of a termination by Simmons or Simmons Bank, or Section 8.3, in the case of a termination by Landmark, and which is
not cured within 45 days following written notice to Landmark, in the case of a termination by Simmons or Simmons Bank, or Simmons
or Simmons Bank, in the case of a termination by Landmark, or by its nature or timing cannot be cured during such period (or such
fewer days as remain prior to the date specified in Section 9.1(c)); or
(f)
by Simmons or Simmons Bank, if any Regulatory Authority has granted a Requisite Regulatory Approval but such Requisite
Regulatory Approval contains, or shall have resulted in or would reasonably be expected to result in, the imposition of a Burdensome
Condition.
9.2.
Effect of Termination.
In
the event of the termination and abandonment of this Agreement pursuant to Section 9.1, this Agreement shall become void and have
no further force or effect and there shall be no Liability on the part of any Party for any matters addressed herein or other
claim relating to this Agreement and the transactions contemplated hereby, except that (i) the provisions of this Section
9.2, Section 7.5(c), and ARTICLE 10, shall survive any such termination and abandonment and (ii) no such termination
shall relieve the breaching Party from Liability resulting from any fraud or breach by that Party of this Agreement.
9.3.
Non-Survival of Representations and Covenants.
The
respective representations, warranties, obligations, covenants, and agreements of the Parties shall not survive the Effective
Time except this Section 9.3, Sections 7.5, 7.7, 7.8 and 7.9, and ARTICLE 1, ARTICLE 2, ARTICLE 3, and ARTICLE 10, which shall
survive in accordance with their respective terms.
ARTICLE
10
MISCELLANEOUS
10.1.
Definitions.
(a)
Except as otherwise provided herein, the capitalized terms set forth below shall have the following meanings:
“Acquisition
Agreement” means a term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, merger
agreement, acquisition agreement, option agreement or other similar agreement (whether written or oral, binding or nonbinding).
“Acquisition
Proposal” means any offer, inquiry, proposal or indication of interest (whether communicated to Landmark or publicly
announced to Landmark’s shareholders and whether binding or non-binding) by any Person (other than a Simmons Entity) for
an Acquisition Transaction.
“Acquisition
Transaction” means any transaction or series of related transactions (other than the transactions contemplated by this
Agreement) involving: (i) any acquisition or purchase, direct or indirect, by any Person (other than a Simmons Entity) of 20%
or more in interest of the total outstanding voting securities of any Landmark Entity whose Assets, either individually or in
the aggregate, constitute more than 25% of the consolidated Assets of Landmark, or any tender offer or exchange offer that if
consummated would result in any Person (other than a Simmons Entity) beneficially owning 20% or more in interest of the total
outstanding voting securities of any Landmark Entity whose Assets, either individually or in the aggregate, constitute more than
25% of the consolidated Assets of Landmark, or any merger, consolidation, share exchange, business combination, reorganization,
recapitalization, liquidation, dissolution or similar transaction involving any Landmark Entity whose Assets, either individually
or in the aggregate, constitute more than 25% of the consolidated Assets of Landmark; or (ii) any sale, lease, exchange, transfer,
license, acquisition or disposition of 20% or more of the consolidated Assets of the Landmark Entities, taken as a whole.
“Affiliate”
of a Person means any other Person directly, or indirectly through one or more intermediaries, controlling, controlled by or under
common control with such Person; and, in the case of any Person that is not a natural person, “control” means (i)
the ownership, control, or power to vote 25 percent or more of any class of voting securities of the other Person, (ii) control
in any manner of the election of a majority of the directors, trustees, managing members or general partners of the other Person,
or (iii) the possession, directly or indirectly, of the power to exercise a controlling influence over the management or policies
of such Person, whether through the ownership of voting securities, as trustee or executor, by Contract or any other means.
“Aggregate
Cash Consideration” means cash in the amount of $7,000,000.
“Aggregate
Cash Equivalent Consideration” means the product of the Stock Consideration and the Average Closing Price.
“Aggregate
Stock Option Payout” means the sum of all Landmark Stock Option Payouts.
“Assets”
of a Person means all of the assets, properties, deposits, businesses and rights of such Person of every kind, nature, character
and description, whether real, personal or mixed, tangible or intangible, accrued or contingent, or otherwise relating to or utilized
in such Person’s business, directly or indirectly, in whole or in part, whether or not carried on the Books and Records
of such Person, and whether or not owned in the name of such Person or any Affiliate of such Person and wherever located.
“Average
Closing Price” means the average of the daily closing prices for the shares of Simmons Common Stock for the twenty consecutive
full trading days on which such shares are actually traded on Nasdaq (as reported by The Wall Street Journal or, if not reported
thereby, any other authoritative source) ending at the close of trading on the Determination Date.
“BHC
Act” means the federal Bank Holding Company Act of 1956, as amended.
“Books
and Records” means all files, ledgers and correspondence, all manuals, reports, texts, notes, memoranda, invoices, receipts,
accounts, accounting records and books, financial statements and financial working papers and all other records and documents
of any nature or kind whatsoever, including those recorded, stored, maintained, operated, held or otherwise wholly or partly dependent
on discs, tapes and other means of storage, including any electronic, magnetic, mechanical, photographic or optical process, whether
computerized or not, and all software, passwords and other information and means of or for access thereto, belonging to any specified
Person or relating to the business.
“Business
Day” means any day other than a Saturday, a Sunday or a day on which all banking institutions in New York, New York
are authorized or obligated by Law or executive order to close.
“Call
Reports” mean Consolidated Reports of Condition and Income (FFIEC Form 041) or any successor form of the Federal Financial
Institutions Examination Council of Landmark or Simmons Bank.
“CARES
Act” means the Coronavirus Aid, Relief, and Economic Security Act (Pub. L. No. 116-136 (H.R. 748)).
“Cash
Consideration” means the Aggregate Cash Consideration less the Aggregate Stock Option Payout.
“Classified
Assets” means all Classified Loans, plus OREO and other repossessed assets.
“Classified
Loans” means all of the Loans of the Landmark Entities that were classified by a Landmark Entity as “Substandard,”
“Doubtful,” “Loss,” or words of similar import.
“Consent”
means any consent, approval, authorization, clearance, exemption, waiver, non-objection, or similar affirmation by any Person
pursuant to any Contract, Law, Order, or Permit.
“Contract”
means any written or oral agreement, arrangement, authorization, commitment, contract, indenture, instrument, lease, license,
mortgage, obligation, plan, practice, restriction, understanding, or undertaking of any kind or character, or other document to
which any Person is a party or that is binding on any Person or its capital stock, Assets or business.
“COVID-19”
means the disease caused by the SARS-CoV-2 virus, and any evolutions thereof or any other epidemics, pandemics or disease outbreaks
related thereto.
“COVID-19
Relief Law” means any Law released, issued or promulgated by a Regulatory Authority that grants to any Person the ability
(i) to defer, reduce or eliminate any Taxes, (ii) to borrow or otherwise secure financing (including any PPP Loans),
(iii) to obtain grants or other financial benefits, in each case as a result of, or in connection with, the effects of COVID-19,
including the CARES Act, the Families First Coronavirus Response Act, and the Consolidated Appropriations Act, 2021.
“Covington”
means Covington & Burling LLP, headquartered at One CityCenter, 850 10th St NW, Washington, DC.
“Default”
means (i) any breach or violation of, default under, contravention of, conflict with, or failure to perform any obligations
under any Contract, Law, Order, or Permit, (ii) any occurrence of any event that with the passage of time or the giving of
notice or both would constitute a breach or violation of, default under, contravention of, or conflict with, any Contract, Law,
Order, or Permit, or (iii) any occurrence of any event that with or without the passage of time or the giving of notice would
give rise to a right of any Person to exercise any remedy or obtain any relief under, terminate or revoke, suspend, cancel, or
modify or change the current terms of, or renegotiate, or to accelerate the maturity or performance of, or to increase or impose
any Liability under, any Contract, Law, Order, or Permit.
“Delinquent
Loans” means all Loans with principal or interest that are 30-89 days past due.
“Derivative
Transaction” means any swap transaction, option, warrant, forward purchase or sale transaction, futures transaction,
cap transaction, floor transaction or collar transaction relating to one or more currencies, commodities, bonds, equity securities,
loans, interest rates, catastrophe events, weather-related events, credit-related events or conditions or any indexes, or any
other similar transaction (including any option with respect to any of these transactions) or combination of any of these transactions,
including collateralized mortgage obligations or other similar instruments or any debt or equity instruments evidencing or embedding
any such types of transactions, and any related credit support, collateral or other similar arrangements related to such transactions.
“Determination
Date” means the tenth Business Day prior to the Closing Date, provided that if shares of the Simmons Common Stock are
not actually traded on Nasdaq on such day, the Determination Date shall be the immediately preceding day to the tenth Business
Day prior to the Closing Date on which shares of Simmons Common Stock actually trade on Nasdaq.
“Disclosure
Memorandum” of a Party means a letter delivered by such Party to the other Party prior to execution of this Agreement,
setting forth, among other things, items the disclosure of which is necessary or appropriate either in response to an express
disclosure requirement contained in a provision hereof or as an exception to one or more representations or warranties contained
in ARTICLE 4 and ARTICLE 5 or to one or more of its covenants contained in this Agreement; provided, that (i) no such item is
required to be set forth in a Disclosure Memorandum as an exception to a representation or warranty if its absence would not be
reasonably likely to result in the related representation or warranty being deemed untrue or incorrect, (ii) the mere inclusion
of an item in a Disclosure Memorandum as an exception to a representation or warranty shall not be deemed an admission by a Party
that such item represents a material exception or fact, event or circumstance or that such item is reasonably expected to result
in a Material Adverse Effect on the Party making the representation or warranty, and (iii) any disclosures made with respect to
a section of ARTICLE 4 or ARTICLE 5 shall be deemed to qualify (A) any other section of ARTICLE 4 or ARTICLE 5 specifically referenced
or cross-referenced and (B) other sections of ARTICLE 4 or ARTICLE 5 to the extent it is reasonably apparent on its face (notwithstanding
the absence of a specific cross reference) from a reading of the disclosure that such disclosure applies to such other sections.
“Employee
Benefit Plan” means each pension, retirement, profit-sharing, deferred compensation, stock option, restricted stock,
stock appreciation rights, employee stock ownership, share purchase, severance pay, vacation, bonus, incentive, retention, change
in control or other incentive plan, medical, vision, dental or other health plan, any life insurance plan, flexible spending account,
cafeteria plan, vacation, holiday, disability or any other employee benefit plan or fringe benefit plan, including any “employee
benefit plan,” as that term is defined in Section 3(3) of ERISA and any other plan, fund, policy, program, practice, custom,
understanding, agreement, or arrangement providing compensation or other benefits, whether or not such Employee Benefit Plan is
or is intended to be (i) covered or qualified under the Internal Revenue Code, ERISA or any other applicable Law, (ii) written
or oral, (iii) funded or unfunded, (iv) actual or contingent, or (v) arrived at through collective bargaining or otherwise.
“Environmental
Laws” means all Laws, Orders, Permits, opinions or agency requirements relating to pollution or protection of human
health or safety or the environment (including ambient air, surface water, ground water, land surface, or subsurface strata) including
the Comprehensive Environmental Response Compensation and Liability Act, as amended, 42 U.S.C. 9601 et seq., the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. 6901 et seq., and other Laws relating to emissions, discharges, releases,
or threatened releases of any Hazardous Material, or otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport, or handling of any Hazardous Material.
“Equity
Rights” means all arrangements, calls, commitments, Contracts, options, rights (including preemptive rights or redemption
rights), scrip, units, understandings, warrants, or other binding obligations of any character whatsoever relating to, or securities
or rights convertible into or exchangeable for, shares of the capital stock or equity interests of a Person
or by which a Person
is or may be bound to issue additional shares of its capital stock or other equity interests.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Exhibit”
means the Exhibits so marked, copies of which are attached to this Agreement. Such Exhibits are hereby incorporated by reference
herein and made a part hereof, and may be referred to in this Agreement and any other related instrument or document without being
attached hereto.
“Federal
Reserve” means the Board of Governors of the Federal Reserve System or a Federal Reserve Bank acting under the appropriately
delegated authority thereof, as applicable.
“Fully
Diluted Per Share Value” means the quotient obtained by dividing the Total Dilution Consideration by the Fully Diluted
Landmark Shares Outstanding.
“Fully
Diluted Landmark Shares Outstanding” means the sum of the Landmark Shares Outstanding and the Landmark Stock Options
Outstanding.
“GAAP”
means U.S. generally accepted accounting principles, consistently applied during the periods involved.
“Hazardous
Material” means (i) any hazardous substance, hazardous material, hazardous waste, regulated substance, or toxic
substance (as those terms are defined by any applicable Environmental Laws), (ii) any chemicals, pollutants, contaminants,
petroleum, petroleum products, or oil, lead-containing paint or plumbing, radioactive materials or radon, asbestos-containing
materials and any polychlorinated biphenyls, and (iii) any other substance which has been, is, or may be the subject of regulatory
action by any government authority in connection with any Environmental Law.
“Intellectual
Property” means copyrights, patents, trademarks, service marks, service names, trade names, brand names, internet domain
names, logos together with all goodwill associated therewith, registrations and applications therefor, technology rights and licenses,
computer software (including any source or object codes therefor or documentation relating thereto), trade secrets, franchises,
know-how, inventions, and other intellectual property rights.
“Internal
Revenue Code” means the Internal Revenue Code of 1986, as amended.
“Key
Employee” means an employee of any Landmark Entity having the position of Vice President or above.
“Knowledge”
as used with respect to a Person means the actual knowledge of the chairman, president, chief executive officer, chief financial
officer, chief risk officer, chief compliance officer, chief accounting officer, chief operating officer, chief credit officer,
general counsel, any assistant or deputy general counsel, human resources manager, or any senior executive of such Person and
the knowledge of any such Persons obtained or which would have been obtained from a reasonable investigation.
“Landmark
Common Stock” means the no par value common stock of Landmark.
“Landmark
Entities” means, collectively, Landmark and all Landmark Subsidiaries.
“Landmark
ERISA Affiliate” means any entity which together with a Landmark Entity would be, at the relevant time, treated as a
single employer under Internal Revenue Code Section 414.
“Landmark
Financial Statements” means (i) the consolidated statements of condition (including related notes and schedules,
if any) of Landmark as of December 31, 2020, and as of December 31, 2019, 2018 and 2017 and the related statements of operations,
changes in shareholders’ equity, and cash flows (including related notes and schedules, if any) for the year ended December
31, 2020, and for each of the three fiscal years ended December 31, 2019, 2018 and 2017, as filed by Landmark in the Call Reports
and (ii) the consolidated statements of condition of Landmark (including related notes and schedules, if any) and related
statements of operations, changes in shareholders’ equity, and cash flows (including related notes and schedules, if any)
included in the Call Reports filed with respect to periods ended subsequent to December 31, 2020.
“Landmark
Shares Outstanding” means the total number of shares of Landmark Common Stock outstanding immediately prior to the Effective
Time.
“Landmark
Subsidiary” means the Subsidiaries of Landmark, the entities set forth on Schedule 4.4(a) and any corporation, bank,
savings association, limited liability company, limited partnership, limited liability partnership or other organization acquired
as a Subsidiary of Landmark after the date hereof and held as a Subsidiary by Landmark at the Effective Time.
“Landmark
Stock Option Amount” means the Fully Diluted Per Share Value less the Option Exercise Price.
“Landmark
Stock Options Outstanding” means the total number of shares of Landmark Common Stock underlying the Landmark Stock Options
as of immediately prior to the Effective Time.
“Law”
means any code, law (including common law), ordinance, regulation, reporting or licensing requirement, rule, or statute applicable
to a Person or its Assets, Liabilities, or business, including those promulgated, interpreted or enforced by any Regulatory Authority.
“Liability”
means any direct or indirect, primary or secondary, liability, indebtedness, obligation, penalty, cost or expense (including costs
of investigation, collection and defense), claim, deficiency, guaranty or endorsement of or by any Person (other than endorsements
of notes, bills, checks, and drafts presented for collection or deposit in the Ordinary Course) of any type, whether accrued,
absolute or contingent, liquidated or unliquidated, matured or unmatured, or otherwise.
“Lien”
means any conditional sale agreement, default of title, easement, encroachment, encumbrance, hypothecation, infringement, lien,
mortgage, pledge, option, right of first refusal, reservation, restriction, security interest, title retention or other security
arrangement, or any adverse right or interest, charge, or claim of any nature whatsoever of, on, or with respect to any property
or property interest, other than Permitted Liens.
“Litigation”
means any action, arbitration, cause of action, lawsuit, claim, complaint, criminal prosecution, governmental or other examination
or investigation, audit (other than regular audits of financial statements by outside auditors), compliance review, inspection,
hearing, administrative or other proceeding relating to or affecting a Party, its business, its records, its policies, its practices,
its compliance with Law, its actions, its Assets (including Contracts related to it), or the transactions contemplated by this
Agreement, but shall not include regular, periodic examinations of depository institutions and their Affiliates by Regulatory
Authorities.
“Loans”
means any written or oral loan, loan agreement, note or borrowing arrangement (including leases, credit enhancements, guarantees
and interest bearing assets) to which any Landmark Entity is party as a creditor.
“Losses”
means any and all demands, claims, actions or causes of action, assessments, losses, diminution in value, damages (including special,
punitive and consequential damages), liabilities, costs, and expenses, including interest, penalties, cost of investigation and
defense, and reasonable attorneys’ and other professional fees and expenses.
“Material”
or “material” for purposes of this Agreement shall be determined in light of the facts and circumstances of
the matter in question; provided, that any specific monetary amount stated in this Agreement shall determine materiality in that
instance.
“Material
Adverse Effect” means with respect to any Party and its Subsidiaries, any fact, circumstance, event, change, effect,
development or occurrence that, individually or in the aggregate together with all other facts, circumstances, events, changes,
effects, developments or occurrences, directly or indirectly, (i) has had or would reasonably be expected to result in a material
adverse effect on the condition (financial or otherwise), results of operations, Assets, liabilities or business of such Party
and its Subsidiaries taken as a whole; provided, that a “Material Adverse Effect” shall not be deemed to include effects
to the extent resulting from (A) changes after the date of this Agreement in GAAP or regulatory accounting requirements,
(B) changes after the date of this Agreement in Laws of general applicability to companies in the financial services industry,
(C) changes after the date of this Agreement in global, national or regional political conditions or general economic or
market conditions in the United States (and with respect to each of Landmark, Simmons Bank and Simmons, in the respective markets
in which they operate), 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 other companies in the financial
services industry, (D) after the date of this Agreement, general changes in the credit markets or general downgrades in the credit
markets, (E) failure, in and of itself, to meet earnings projections or internal financial forecasts, but not including any underlying
causes thereof unless separately excluded hereunder, or changes in the trading price of a Party’s common stock, in and of
itself, but not including any underlying causes unless separately excluded hereunder, (F) the public disclosure of this Agreement
and the impact thereof on relationships with customers or employees, (G) any outbreak or escalation of hostilities, declared or
undeclared acts of war or terrorism, (H) changes, after the date hereof, resulting from hurricanes, earthquakes, tornados, floods
or other natural disasters or from any epidemic, pandemic, or outbreak of any disease or other public health event (including
the Pandemic and the implementation of the Pandemic Measures) in the jurisdictions in which Landmark or Simmons Bank operate or
(I) actions or omissions taken with the prior written consent of the other Party or expressly required by this
Agreement;
except, with respect to clauses (A), (B), (C), (D), (G) and (H), to the extent that the effects of such change disproportionately
affect such Party and its Subsidiaries, taken as a whole, as compared to other companies in the industry in which such Party and
its Subsidiaries operate, or (ii) prevents or materially impairs the ability of such Party to timely consummate the transactions
contemplated hereby; provided, further, that the application of the conditions in Section 8.2(d) and Section 8.2(f) is independent
of the definition of Material Adverse Effect and the satisfaction or lack of satisfaction of the requirements therein is not determinative
of whether a Material Adverse Effect has otherwise occurred.
“Merger
Consideration” means the sum of (A) the Per Share Cash Consideration, (B) the Per Share Stock Consideration, (C) the
Fractional Share Payment (if any), and (D) any dividends or distributions (if any) pursuant to Section 3.1(d).
“Nasdaq”
means the Nasdaq Global Select Market.
“Non-Performing
Assets” means (i) Non-Performing Loans and (ii) OREO and other repossessed Assets. Non-Performing Assets shall be reflected
in the Closing Financial Statements.
“Non-Performing
Loans” means (i) all Loans with principal and/or interest that are at least 90 days past due and still accruing and
(ii) all Loans with principal and/or interest that are nonaccruing.
“Operating
Property” means any property owned, leased, or operated by the Party in question or by any of its Subsidiaries or in
which such Party or Subsidiary holds a security interest or other interest (including an interest in a fiduciary capacity), and,
where required by the context, includes the owner or operator of such property, but only with respect to such property.
“Option
Exercise Price” means the exercise price of a Landmark Stock Option.
“Order”
means any administrative decision or award, decree, injunction, judgment, order, consent decree, quasi-judicial decision or award,
ruling, or writ of any federal, state, local or foreign or other court, arbitrator, mediator, tribunal, administrative agency,
or Regulatory Authority.
“Ordinary
Course” means the conduct of the business of the Party, in substantially the same manner as such business was operated
on the date of this Agreement, including operations in conformance and consistent with the Party’s practices and procedures
prior to and as of such date. For purposes of this Agreement, the term “Ordinary Course,” with respect to any Party,
shall take into account the commercially reasonable action or inaction by such Party and its Subsidiaries in response to the Pandemic
to comply with the Pandemic Measures to the extent disclosed to the other Party prior to the date hereof or as otherwise generally
consistent with those actions taken by banks generally.
“OREO”
means “other real estate owned” or words of similar import as reflected in the Landmark Financial Statements.
“Pandemic”
means any outbreaks, epidemics or pandemics relating to COVID-19, or any evolutions or mutations thereof.
“Pandemic
Measures” means any quarantine, “shelter in place,” “stay at home,” workforce reduction, social
distancing, shut down, closure, sequester or other Laws or directives, guidelines or recommendations promulgated by any Regulatory
Authority, including the Centers for Disease Control and Prevention and the World Health Organization, in each case, in connection
with or in response to the Pandemic.
“Participation
Facility” means any facility or property in which the Party in question or any of its Subsidiaries participates in the
management and, where required by the context, said term means the owner or operator of such facility or property, but only with
respect to such facility or property.
“Party”
means any of Landmark, Simmons or Simmons Bank, and “Parties” means Landmark, Simmons and Simmons Bank.
“Permit”
means any federal, state, local, or foreign governmental approval, authorization, certificate, easement, filing, franchise, license,
notice, permit, or right to which any Person is a party or that is or may be binding upon or inure to the benefit of any Person
or its securities, Assets, or business.
“Per
Share Cash Consideration” means the quotient obtained by dividing the Cash Consideration by the Landmark Shares Outstanding.
“Per
Share Stock Consideration” means the quotient obtained by dividing the Stock Consideration by the Landmark Shares Outstanding.
“Person”
means a natural person or any legal, commercial or governmental entity, such as, but not limited to, a corporation, general partnership,
joint venture, limited partnership, limited liability company, limited liability partnership, trust, business association, group
acting in concert, or any person acting in a Representative capacity.
“PPP
Loan” means (i) any covered loan under paragraph (36) of Section 7(a) of the Small Business Act (15 U.S.C. 636(a)),
as added by Section 1102 of the CARES Act, or (ii) any loan that is an extension or expansion of, or is similar to,
any covered loan described in clause (i).
“Previously
Disclosed” by a Party means information set forth in its Disclosure Memorandum or, if applicable, information set forth
in its SEC Documents that were filed after December 31, 2016, but prior to the date hereof (but disregarding risk factor disclosures
contained under the heading “Risk Factors” or disclosures of risk factors set forth in any “forward-looking
statements” disclaimer or other statements that are similarly non-specific or cautionary, predictive or forward-looking
in nature).
“Registration
Statement” means the Registration Statement on Form S-4, or other appropriate form, including any pre-effective or post-effective
amendments or supplements thereto, to be filed with the SEC by Simmons under the Securities Act with respect to the shares of
Simmons Common Stock to be issued to the shareholders of Landmark pursuant to this Agreement.
“Regulatory
Authorities” means, collectively, the SEC, Nasdaq, state securities authorities, the Financial Industry Regulatory Authority,
the Securities Investor Protector Corporation, applicable securities, commodities and futures exchanges, and other industry self-regulatory
organizations, the Federal Reserve, the FDIC, the SBD, the TDFI, the Consumer Financial Protection Bureau, the IRS, the DOL, the
PBGC, and all other foreign, federal, state, county, local or other governmental, banking or regulatory agencies, authorities
(including taxing and self-regulatory authorities), instrumentalities, commissions, boards, courts, administrative agencies, commissions
or bodies.
“Representative”
means, with respect to any Person, any officer, director, employee, investment banker, financial or other advisor, attorney, auditor,
accountant, consultant, or other representative or agent of or engaged or retained by such Person.
“SEC”
means the United States Securities and Exchange Commission.
“SEC
Documents” means all forms, proxy statements, registration statements, reports, schedules, and other documents filed,
together with any amendments thereto, by any Simmons Entities with the SEC on or after December 31, 2016, or by any Landmark Entities
with the SEC on or after December 31, 2016, as applicable.
“Securities
Act” means the Securities Act of 1933, as amended.
“Securities
Laws” means the Securities Act, the Exchange Act, the Investment Company Act of 1940, as amended, the Investment Advisers
Act of 1940, as amended, the Trust Indenture Act of 1939, as amended, and the rules and regulations of any Regulatory Authority
promulgated thereunder.
“Simmons
Benefit Plan” means each Employee Benefit Plan currently adopted (including all amendments thereto), maintained by,
sponsored in whole or in part by, or contributed to by any Simmons Entity or Simmons ERISA Affiliate for the benefit of employees,
retirees, dependents, spouses, directors, independent contractors, or other beneficiaries or under which employees, retirees,
former employees, dependents, spouses, directors, independent contractors, or other beneficiaries are eligible to participate
or with respect to which Simmons or any Simmons ERISA Affiliate has or may have any obligation or Liability.
“Simmons
Common Stock” means the $0.01 par value common stock of Simmons.
“Simmons
Entities” means, collectively, Simmons and all Simmons Subsidiaries.
“Simmons
ERISA Affiliate” means any entity which together with a Simmons Entity would be treated, at the relevant time, as a
single employer under Internal Revenue Code Section 414.
“Simmons
Financial Statements” means (i) the consolidated statements of condition (including related notes and schedules,
if any) of Simmons as of December 31, 2020, and as of December 31, 2019 and 2018 and the related statements of operations, changes
in shareholders’ equity, and cash flows (including related notes and schedules, if any) for the year ended December 31,
2020, and for each of the two fiscal years ended December 31, 2019 and 2018 as filed by Simmons in SEC Documents and (ii) the
consolidated statements of condition of Simmons (including related notes and schedules, if any) and related statements of operations,
changes in shareholders’ equity, and cash flows (including related notes and schedules, if any) including in SEC Documents
filed with respect to periods ended subsequent to December 31, 2020.
“Simmons
Restricted Stock Award” means each award of shares of Simmons Common Stock or other Equity Right to shares of Simmons
Common Stock subject to vesting, repurchase or other lapse restriction granted under a Simmons Stock Plan.
“Simmons
Stock Options” means each option or other Equity Right to purchase shares of Simmons Common Stock pursuant to stock
options or stock appreciation rights.
“Simmons
Stock Plans” means the existing stock option and other stock-based compensation plans of Simmons designated as follows:
Simmons Executive Stock Incentive Plan – 2006; Simmons Outside Director Stock Incentive Plan – 2006; Simmons Executive
Stock Incentive Plan – 2010; Simmons Outside Director Stock Incentive Plan – 2014; and the Second Amended and Restated
Simmons First National Corporation 2015 Incentive Plan.
“Simmons
Subsidiaries” means the Subsidiaries of Simmons, which shall include any corporation, bank, savings association, limited
liability company, limited partnership, limited liability partnership or other organization acquired as a Subsidiary of Simmons
after the date hereof and held as a Subsidiary by Simmons at the Effective Time.
“Stock
Consideration” means 4,500,000 shares of Simmons Common Stock.
“Subsidiaries”
means all those corporations, associations, or other business entities of which the entity in question either (i) owns or
controls more than 50% of the outstanding equity securities or other ownership interests either directly or through an unbroken
chain of entities as to each of which more than 50% of the outstanding equity securities is owned directly or indirectly by its
parent (provided, there shall not be included any such entity the equity securities of which are owned or controlled in a fiduciary
capacity), (ii) in the case of partnerships, serves as a general partner, (iii) in the case of a limited liability company,
serves as a managing member, or (iv) otherwise has the ability to elect a majority of the directors, trustees or managing
members thereof.
“Superior
Proposal” means any unsolicited bona fide written Acquisition Proposal with respect to which the board of directors
of Landmark determines in its good faith judgment (based on, among other things, the advice of outside legal counsel and a financial
advisor) is reasonably likely to be consummated in accordance with its terms, and if consummated, would result in a transaction
more favorable, from a financial point of view, to Landmark’s shareholders than the Merger and the other transactions contemplated
by this Agreement (as it may be proposed to be amended by Simmons or Simmons Bank), taking into account all relevant factors (including
the Acquisition Proposal and this Agreement (including any proposed changes to this Agreement that may be proposed by Simmons
or Simmons Bank in response to such Acquisition Proposal)); provided, that for purposes of the definition of “Superior Proposal,”
the references to “20%” in the definition of Acquisition Transaction shall be deemed to be references to “50%.”
“Tax”
or “Taxes” means any federal, state, county, local, or foreign taxes, or, to the extent in the nature of a
tax, any charges, fees, levies, imposts, duties, or other assessments, including income, gross receipts, excise, employment, sales,
use, transfer, recording license, payroll, franchise, severance, documentary, stamp, occupation, windfall profits, environmental,
commercial rent, capital stock, paid-up capital, profits, withholding, Social Security, single business and unemployment, real
property, personal property, escheat, unclaimed property, registration, ad valorem, value added, goods and services, alternative
or add-on minimum, estimated, or other tax, imposed or required to be withheld by the United States or any state, county, local
or foreign government or subdivision or agency thereof, including any interest, penalties, and additions imposed thereon or with
respect thereto (including any such interest, penalties, or additions imposed as a result of a failure to timely, correctly or
completely file any Tax Return.
“Tax
Return” means any report, return, information return, or other document supplied to, or required to be supplied to a
Regulatory Authority in connection with Taxes, including any return of an affiliated or combined or unitary group that includes
a Party or its Subsidiaries and including any amendment, attachment, or schedule thereto.
“Total
Dilution Consideration” means the sum of (i) the Aggregate Cash Consideration, (ii) the Aggregate Cash Equivalent Consideration,
and (iii) the product obtained by multiplying the Weighted Average Option Exercise Price by the Landmark Stock Options Outstanding.
“Treasury
Regulations” means the United States Treasury Regulations promulgated under the Internal Revenue Code, and any reference
to any particular Treasury Regulation section shall be interpreted to include any final or temporary revision of or successor
to that Section regardless of how numbered or classified.
“WARN
Act” means the Worker Adjustment and Retraining Notification Act of 1988 (or any similar applicable local Law insofar
as it relates to an employer’s obligations in the context of mass layoffs or plant closings).
“Weighted
Average Option Exercise Price” means the weighted average Option Exercise Price for all the Landmark Stock Options Outstanding.
10.2.
Referenced Pages.
The
terms set forth below shall have the meanings ascribed thereto in the referenced pages:
401(k)
Plan
|
A-44
|
ABC
|
A-1
|
Aggregate Cash Increase
|
A-3
|
Agreement
|
A-1
|
ALLL
|
A-26
|
Bankruptcy and Equity
Exceptions
|
A-7
|
Book-Entry Share
|
A-3
|
Burdensome Condition
|
A-41
|
Canceled Shares
|
A-3
|
Change in the Landmark
Recommendation
|
A-39
|
Chosen Courts
|
A-69
|
Claim
|
A-45
|
Closing
|
A-2
|
Closing Date
|
A-2
|
Closing Financial
Statements
|
A-47
|
Confidentiality Agreement
|
A-44
|
Contract Consents
|
A-8
|
Covered Employees
|
A-44
|
DOL
|
A-18
|
Effective Time
|
A-2
|
ESOP
|
A-3
|
Exchange Agent
|
A-4
|
Exchange Fund
|
A-4
|
FDIA
|
A-8
|
FDIC
|
A-7
|
Fractional Share Payment
|
A-4
|
Holders
|
A-4
|
Indemnified Party
|
A-45
|
Independent Contractors
|
A-18
|
IRS
|
A-16
|
Landmark
|
A-1
|
Landmark Benefit Plan
|
A-19
|
Landmark Contracts
|
A-22
|
Landmark Dissenting
Shareholders
|
A-6
|
Landmark Dissenting
Shares
|
A-6
|
Landmark Recommendation
|
A-39
|
Landmark Regulatory
Agreement
|
A-23
|
Landmark Shareholder
Approval
|
A-7
|
Landmark Stock Option
|
A-3
|
Landmark Stock Option
Payout
|
A-3
|
Landmark’s Shareholders’
Meeting
|
A-39
|
Maximum Amount
|
A-45
|
Merger
|
A-1
|
Money Laundering Laws
|
A-17
|
Old Certificate
|
A-3
|
PBGC
|
A-19
|
Permitted Liens
|
A-13
|
Personally Identifiable
Information
|
A-15
|
Pool
|
A-25
|
Proxy Statement/Prospectus
|
A-38
|
Real Property
|
A-13
|
Regulation O
|
A-26
|
Requisite Regulatory
Approvals
|
A-49
|
Sanctioned Countries
|
A-26
|
Sanctions
|
A-27
|
SBD
|
A-28
|
Section 48-23-101
et seq.
|
A-6
|
Simmons
|
A-1
|
Simmons Bank
|
A-1
|
Simmons Certificates
|
A-4
|
Simmons SEC Reports
|
A-30
|
Surviving Bank
|
A-1
|
Systems
|
A-14
|
Takeover Statutes
|
A-24
|
Tax Opinion
|
A-49
|
TBA
|
A-1
|
TDFI
|
A-7
|
Termination Fee
|
A-66
|
Voting Agreement
|
A-1
|
Any singular
term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include,”
“includes” or “including” are used in this Agreement, they shall be deemed followed by the words “without
limitation.” The word “or” shall not be exclusive and “any” means “any and all.” The
words “hereby,” “herein,” “hereof,” “hereunder” and similar terms refer to this
Agreement as a whole and not to any specific Section. All pronouns and any variations thereof refer to the masculine, feminine
or neuter, singular or plural, as the context may require. If a word or phrase is defined, the other grammatical forms of such
word or phrase have a corresponding meaning. A reference to a document, agreement or instrument
also refers to all addenda, exhibits
or schedules thereto. A reference to any “copy” or “copies” of a document, agreement or instrument means
a copy or copies that are complete and correct. Unless otherwise specified in this Agreement, all accounting terms used in this
Agreement will be interpreted, and all accounting determinations under this Agreement will be made, in accordance with GAAP. Any
capitalized terms used in any schedule, Exhibit or Disclosure Memorandum but not otherwise defined therein shall have the meaning
set forth in this Agreement. All references to “dollars” or “$” in this Agreement are to United States
dollars. All references to “the transactions contemplated by this Agreement” (or similar phrases) include the transactions
provided for in this Agreement, including the Merger. Any Contract or Law defined or referred to herein or in any Contract that
is referred to herein means such Contract or Law as from time to time amended, modified or supplemented, including (in the case
of Contracts) by waiver or consent and (in the case of Law) by succession of comparable successor Law and references to all attachments
thereto and instruments incorporated therein. The term “made available” means any document or other information that
was (a) provided (whether by physical or electronic delivery) by one Party or its representatives to the other Party or its representatives
at least two Business Days prior to the date hereof, (b) included in the virtual data room (on a continuous basis without subsequent
modification) of a Party at least two Business Days prior to the date hereof, or (c) filed by a Party with the SEC and publicly
available on EDGAR at least two Business Days prior to the date hereof.
10.3.
Expenses.
(a)
Except as otherwise provided in this Section 10.3, each of the Parties shall bear and pay all direct costs and expenses
incurred by it or on its behalf in connection with the transactions contemplated hereunder, including filing, registration and
application fees, printing and mailing fees, and fees and expenses of its own financial or other consultants, investment bankers,
accountants, and counsel, except that each of the Parties shall bear and pay one-half of the filing fees payable in connection
with the Registration Statement and the Proxy Statement/Prospectus and printing costs incurred in connection with the printing
of the Registration Statement and the Proxy Statement/Prospectus.
(b)
Notwithstanding the foregoing, if:
(i)
(A) any of Landmark, Simmons or Simmons Bank terminates this Agreement pursuant to (1) Section 9.1(b)(ii) or (2) Section
9.1(c), or (B) Simmons or Simmons Bank terminates this Agreement pursuant to Section 9.1(e), and, in each case, within 12 months
of such termination Landmark shall either (x) consummate an Acquisition Transaction or (y) enter into an Acquisition Agreement
with respect to an Acquisition Transaction, whether or not such Acquisition Transaction is subsequently consummated; or
(ii)
Simmons or Simmons Bank shall terminate this Agreement pursuant to Section 9.1(d),
then
Landmark shall pay to Simmons an amount equal to $7,000,000 (the “Termination Fee”). If the Termination Fee
shall be payable pursuant to subsection (i) of this Section 10.3(b), the Termination Fee shall be paid in same-day funds at or
prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of an Acquisition Agreement
with respect to such Acquisition Transaction. If the Termination Fee shall be payable pursuant to subsection (ii) of this Section
10.3(b), the Termination Fee shall be paid in same-day funds within two Business Days from the date of termination of this Agreement.
(c)
The payment of the Termination Fee by Landmark pursuant to Section 10.3(b) constitutes liquidated damages and not a penalty,
and shall be the sole monetary remedy of Simmons, in the event of termination of this Agreement pursuant to Sections 9.1(b)(ii),
9.1(c), 9.1(d) or 9.1(e). The Parties acknowledge that the agreements contained in Section 10.3(b) are an integral part of the
transactions contemplated by this Agreement, and that without these agreements, they would not enter into this Agreement; accordingly,
if Landmark fails to pay any fee payable by it pursuant to this Section 10.3 when due, then Landmark shall pay to
Simmons its
costs and expenses (including attorneys’ fees) in connection with collecting such fee, together with interest on the amount
of the fee at the prime rate of Citibank, N.A. from the date such payment was due under this Agreement until the date of payment.
10.4.
Entire Agreement; No Third Party Beneficiaries.
Except
as otherwise expressly provided herein, this Agreement (including the Disclosure Memorandum of each of Landmark and Simmons, the
Exhibits, the schedules, and the other documents and instruments referred to herein) together with the Confidentiality Agreement
and the Voting Agreements constitute the entire agreement between the Parties with respect to the transactions contemplated hereunder
and thereunder and supersedes all prior arrangements or understandings with respect thereto, written or oral. Nothing in this
Agreement (including the documents and instruments referred to herein) expressed or implied, is intended to confer upon any Person,
other than the Parties or their respective successors, any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, other than as specifically provided in Section 7.9. The representations and warranties in this Agreement are the
product of negotiations among the Parties and are for the sole benefit of the Parties. Any inaccuracies in such representations
and warranties are subject to waiver by the Parties in accordance herewith without notice or liability to any other Person. In
some instances, the representations and warranties in this Agreement may represent an allocation among the Parties of risks associated
with particular matters regardless of the knowledge of any of the Parties. Consequently, Persons other than the Parties may not
rely upon the representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the
date of this Agreement or as of any other date. Notwithstanding any other provision hereof to the contrary, no consent, approval
or agreement of any third-party beneficiary will be required to amend, modify to waive any provision of this Agreement.
10.5.
Amendments.
To
the extent permitted by Law, this Agreement may be amended by a subsequent writing signed by each of the Parties upon the approval
of each of the Parties, whether before or after the Landmark Shareholder Approval has been obtained; provided, that after obtaining
the Landmark Shareholder Approval, there shall be made no amendment that requires further approval by such Landmark shareholders.
10.6.
Waivers.
At
any time prior to the Effective Time, the Parties, by action taken or authorized by their respective boards of directors, may,
to the extent permitted by Law, (a) extend the time for the performance of any of the obligations or other acts of the other Parties,
(b) waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto,
and (c) waive compliance with any of the agreements or satisfaction of any conditions contained herein; provided, that after the
Landmark Shareholder Approval has been obtained, there may not be, without further approval of such shareholders, any extension
or waiver of this Agreement or any portion thereof that requires further approval under applicable Law. Any agreement on the part
of a Party to any such extension or waiver shall be valid only if set forth in a written instrument signed on behalf of such Party,
but such extension or waiver or failure to insist on strict compliance with an obligation, covenant, agreement or condition shall
not operate as a waiver of, or estoppel with respect to, any subsequent or other failure to comply with an obligation, covenant,
agreement or condition.
10.7.
Assignment.
Except
as expressly contemplated hereby, neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned
by any Party (whether by operation of Law or otherwise) without the prior written consent of the other Party. Any purported assignment
in contravention hereof shall be null and void. Subject to the preceding sentences, this Agreement will be binding upon, inure
to the benefit of and be enforceable by the Parties and their respective successors and assigns.
10.8.
Notices.
All
notices or other communications which are required or permitted hereunder shall be in writing and sufficient if delivered by hand,
by facsimile transmission (followed by overnight courier), by registered or certified mail, postage pre-paid, or by courier or
overnight carrier, or by email (with receipt confirmed) to the persons at the addresses set forth below (or at such other address
as may be provided hereunder), and shall be deemed to have been delivered as of the date so delivered:
|
Simmons
or Simmons Bank:
|
Simmons
First National Corporation
|
|
|
Simmons
Bank
501
Main Street
Pine
Bluff, AR 71601
Facsimile
Number: (501) 558-3145
Attention:
George Makris, Jr.
Email:
george.makris@simmonsbank.com
|
|
|
|
|
With
a Copy to:
|
Simmons First
National Corporation
|
|
|
Simmons
Bank
601
E. 3rd Street, 12th Floor
Little
Rock, AR 72201
Facsimile
Number: (501) 558-3145
Attention:
George Makris III
Email:
george.a.makris@simmonsbank.com
|
|
|
|
|
Copy
to Counsel:
|
Covington
& Burling LLP
|
|
|
One
CityCenter
850 Tenth Street NW
Washington, DC 20001
Facsimile Number: (202) 778-5986
Attention: Frank M. Conner III
Email: rconner@cov.com;
Attention:
Christopher J. DeCresce
Email:
cdecresce@cov.com;
Attention:
Charlotte May
Email:
cmay@cov.com
|
|
|
|
|
Landmark:
|
Landmark
Community Bank
5880 Ridge Bend Road
Memphis, TN 38120
Facsimile Number: (901) 260-2525
Attention: James P. Farrell
Email: jakefarrell@landmarkbanktn.com
|
|
|
|
|
Copy
to Counsel:
|
Baker, Donelson,
Bearman, Caldwell & Berkowitz, PC
165 Madison Avenue, Suite 2000
Memphis, TN 38103
Facsimile Number: (901) 577-2303
Attention: Jackie G. Prester
Email: jprester@bakerdonelson.com
|
10.9.
Governing Law; Jurisdiction; Waiver of Jury Trial
(a)
The Parties agree that this Agreement shall be governed by and construed in all respects in accordance with the Laws of
the State of Arkansas without regard to any conflict of Laws or choice of Law principles that might otherwise refer construction
or interpretation of this Agreement to the substantive Law of another jurisdiction (except that matters relating to the fiduciary
duties of the board of directors of Landmark shall be subject to the Laws of the State of Tennessee).
(b)
Each Party agrees that it will bring any action or proceeding in respect of any claim arising out of or related to this
Agreement or the transactions contemplated hereby exclusively in any federal or state court of competent jurisdiction located
in the State of Arkansas (the “Chosen Courts”), and, solely in connection with claims arising under this Agreement
or the transactions that are the subject of this Agreement, (i) irrevocably submits to the exclusive jurisdiction of the Chosen
Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii) waives any objection
that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party, and (iv) agrees that service of process
upon such party in any such action or proceeding will be effective if notice is given in accordance with Section 10.8.
(c)
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED
AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR OTHER PROCEEDING DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES
AND ACKNOWLEDGES THAT: (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH
PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV)
EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 10.9.
10.10.
Counterparts; Signatures.
This
Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together
shall constitute one and the same instrument. This Agreement and any signed agreement or instrument entered into in connection
with this Agreement, and any amendments or waivers hereto or thereto, to the extent signed and delivered by means of a facsimile
machine or by e-mail delivery of a “.pdf” format data file, shall be treated in all manner and respects as an original
agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version
thereof delivered in person. No Party or to any such agreement or instrument shall raise the use of a facsimile machine or e-mail
delivery of a “.pdf” format data file to deliver a signature to this Agreement or any amendment or waiver hereto or
any agreement or instrument entered into in connection with this Agreement or the fact that any signature or agreement or instrument
was transmitted or communicated through the use of a facsimile machine or e-mail delivery of a “.pdf” format data
file as a defense to the formation of a contract and each Party forever waives any such defense.
10.11.
Captions; Articles and Sections.
The
captions contained in this Agreement are for reference purposes only and are not part of this Agreement. Unless otherwise indicated,
all references to particular Articles or Sections shall mean and refer to the referenced Articles and Sections of this Agreement.
10.12.
Interpretations.
Neither
this Agreement nor any uncertainty or ambiguity herein shall be construed or resolved against any Party, whether under any rule
of construction or otherwise. No Party shall be considered the draftsman. The Parties acknowledge and agree that this Agreement
has been reviewed, negotiated, and accepted by all Parties and their attorneys and, unless otherwise defined herein, the words
used shall be construed and interpreted according to their ordinary meaning so as fairly to accomplish the purposes and intentions
of all Parties.
10.13.
Enforcement of Agreement.
The
Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement was not performed
in accordance with its specific terms or was otherwise breached and that money damages would be both incalculable and an insufficient
remedy for any breach of this Agreement. It is accordingly agreed that the Parties shall be entitled, without the requirement
of posting bond, to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy
to which they are entitled at law or in equity. Each of the Parties waives any defense in any action for specific performance
that a remedy at law would be adequate.
10.14.
Severability.
Any
term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions
of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other
jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be
only so broad as is enforceable.
10.15.
Confidential Supervisory Information.
Notwithstanding
any other provision of this Agreement, no disclosure, representation or warranty shall be made (or other action taken) pursuant
to this Agreement that would involve the disclosure of confidential supervisory information as defined in 12 C.F.R. § 261.2(b)
and as identified in 12 C.F.R. § 309.5 (g)(8) of a Regulatory Authority by any Party to the extent prohibited by applicable
Law. To the extent legally permissible, appropriate substitute disclosures or actions shall be made or taken under circumstances
in which the limitations of the preceding sentence apply.
[Signatures
on following page.]
IN
WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on its behalf by its duly authorized officers
as of the day and year first above written.
|
|
|
|
SIMMONS FIRST NATIONAL CORPORATION
|
|
|
|
|
By:
|
/s/ George A. Makris, Jr.
|
|
|
Name: George A. Makris, Jr.
|
|
|
Title: Chairman and Chief Executive Officer
|
|
|
|
|
SIMMONS BANK
|
|
|
|
|
By:
|
/s/ George A. Makris, Jr.
|
|
|
Name: George A. Makris, Jr.
|
|
|
Title: Chairman and Chief Executive Officer
|
|
|
|
|
LANDMARK COMMUNITY BANK
|
|
|
|
|
By:
|
/s/ James P. Farrell
|
|
|
Name: James P. Farrell
|
|
|
Title: Chairman, President and Chief Executive Officer
|
|
|
|
[Signature Page to Agreement and
Plan of Merger]
Annex B
AGREEMENT
AND PLAN OF MERGER
BY
AND BETWEEN
SIMMONS
FIRST NATIONAL CORPORATION
AND
TRIUMPH
BANCSHARES, INC.
Dated
as of June 4, 2021
TABLE
OF CONTENTS
Page
Exhibit
A - Form of Triumph Voting Agreement
Triumph’s
Disclosure Memorandum
Simmons’s
Disclosure Memorandum
AGREEMENT
AND PLAN OF MERGER
THIS
AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into as of June 4, 2021, by and between,
Simmons First National Corporation, an Arkansas corporation (“Simmons”), and Triumph Bancshares, Inc., a Tennessee
corporation (“Triumph”).
Preamble
The
respective boards of directors of Triumph and Simmons have approved and adopted this Agreement and determined that this Agreement
and the transactions contemplated hereby are advisable and in the best interests of their respective companies and their respective
shareholders. Under the terms and subject to the conditions of this Agreement and in accordance with applicable provisions of
the Arkansas Business Corporation Act of 1987 (the “ABCA”) and the Tennessee Business Corporation Act (the
“TBCA”), Triumph will merge with and into Simmons (the “Merger”), with Simmons as the surviving
corporation in the Merger (sometimes referred to in such capacity as the “Surviving Corporation”).
As
a condition and an inducement for Simmons to enter into this Agreement, certain of the directors and executive officers of Triumph
have simultaneously with the execution of this Agreement entered into a Support and Non-Competition Agreement (each a “Voting
Agreement” and collectively, the “Voting Agreements”) in connection with the Merger, in substantially
the form of Exhibit A.
The
Parties intend that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Internal
Revenue Code, and the Parties intend that this Agreement will be adopted as a “plan of reorganization” within the
meaning of Sections 354 and 361 of the Internal Revenue Code.
The
Parties desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to
prescribe certain conditions to the Merger.
Capitalized
terms used in this Agreement and not otherwise defined herein are defined in Section 10.1 of this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual warranties, representations, covenants, and agreements set forth
herein, and intending to be legally bound hereby, the Parties agree as follows:
ARTICLE
1
TRANSACTIONS AND TERMS OF MERGER
Under
the terms and subject to the conditions of this Agreement, at the Effective Time, Triumph shall be merged with and into Simmons
in accordance with applicable provisions of the ABCA and the TBCA with the effects set forth in the ABCA and the TBCA. Simmons
shall be the surviving corporation resulting from the Merger and shall succeed to and assume all the rights and obligations of
Triumph in accordance with the ABCA and the TBCA. Upon consummation of the Merger, the separate corporate existence of Triumph
shall terminate.
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1.2
|
Time
and Place of Closing.
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The
closing of the transactions contemplated hereby (the “Closing”) will take place at the offices of Simmons,
located at 601 E. 3rd Street, Little Rock, Arkansas, 72201, or by electronic exchange of documents at 10:00 A.M., Central
Time, on the date that the Effective Time occurs, or at such other date and time as the Parties, acting through their authorized
officers, may mutually agree in writing (the “Closing Date”).
The
Merger shall become effective (the “Effective Time”) on the date and at the time specified in the articles
of merger to be filed with the Secretary of State of the State of Arkansas and the articles of merger to be filed with the Secretary
of State of the State of Tennessee. Upon the terms and subject to the conditions hereof, unless otherwise mutually agreed upon
in writing by the authorized officers of each Party, the Parties shall cause the Effective Time to occur by the later of (i) October
8, 2021, or (ii) a date within 30 days following satisfaction or waiver (subject to applicable Law) of the last to occur of the
conditions set forth in ARTICLE 8 (other than those conditions that by their nature are to be satisfied or waived at the Effective
Time) as determined by Simmons.
The
Amended and Restated Articles of Incorporation of Simmons in effect immediately prior to the Effective Time shall be the articles
of incorporation of the Surviving Corporation until duly amended or repealed in accordance with its terms and applicable Law.
The
Bylaws of Simmons in effect immediately prior to the Effective Time shall be the bylaws of the Surviving Corporation until duly
amended or repealed in accordance with its terms and applicable Law.
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1.6
|
Directors
and Officers.
|
The
directors of Simmons in office immediately prior to the Effective Time shall serve as the directors of the Surviving Corporation
from and after the Effective Time in accordance with the bylaws of the Surviving Corporation. The officers of Simmons in office
immediately prior to the Effective Time shall serve as the officers of the Surviving Corporation from and after the Effective
Time in accordance with the bylaws of the Surviving Corporation.
Immediately
following the Merger, Triumph Bank will merge with and into Simmons Bank (the “Bank Merger”). Simmons Bank
shall be the surviving bank (“Surviving Bank”) in the Bank Merger. Following the Bank Merger, the separate
corporate existence of Triumph Bank shall terminate. The Parties agree that the Bank Merger shall become effective immediately
following the Effective Time. The Bank Merger shall be implemented pursuant to a subsidiary plan of merger (the “Subsidiary
Plan of Merger”). In order to obtain the necessary regulatory approvals for the Bank Merger, the Parties shall cause
the following to be accomplished prior to the filing of applications for regulatory approval of the Bank Merger: (i) Triumph shall
cause Triumph Bank to approve the Subsidiary Plan of Merger, Triumph, as the sole shareholder of Triumph Bank, shall approve the
Subsidiary Plan of Merger and Triumph shall cause the Subsidiary Plan of Merger to be duly executed by Triumph Bank and delivered
to Simmons Bank and (ii) Simmons shall cause Simmons Bank to approve the Subsidiary Plan of Merger, Simmons, as the sole shareholder
of Simmons Bank, shall approve the Subsidiary Plan of Merger and Simmons shall cause Simmons Bank to duly execute and deliver
the Subsidiary Plan of Merger to Triumph Bank. Prior to the Effective Time, Triumph shall cause Triumph Bank, and Simmons shall
cause Simmons Bank, to execute and file such articles of merger, required merger certificates, and such other documents and certificates
as are necessary to make the Bank Merger effective immediately following the Effective Time.
ARTICLE
2
MANNER OF CONVERTING SHARES
|
2.1
|
Conversion
of Shares.
|
Subject
to the provisions of this ARTICLE 2, at the Effective Time, by virtue of the Merger and without any action on the part of Simmons,
Triumph or the shareholders of either of the foregoing, the shares of Triumph and Simmons shall be converted as follows:
(a)
Each share of capital stock of Simmons issued and outstanding immediately prior to the Effective Time shall remain an issued
and outstanding share of capital stock of Simmons from and after the Effective Time and shall not be affected by the Merger.
(b)
Each share of Triumph capital stock issued and outstanding immediately prior to the Effective Time that is held by Triumph,
any Triumph Subsidiary, Simmons or any Simmons Subsidiary (in each case other than shares held in any Employee Benefit Plans or
related trust accounts or otherwise held in any fiduciary or agency capacity or as a result of debts previously contracted) (collectively,
the “Canceled Shares”) shall automatically be canceled and retired and shall cease to exist, and no payment
shall be made with respect thereto.
(c)
Each share of Triumph Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled
Shares and the Triumph Dissenting Shares), subject to Sections 2.3(b), 2.5, and 9.1(g), shall be converted into the right to receive,
without interest:
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(i)
|
the
Per Share Cash Consideration; and
|
|
(ii)
|
the
Per Share Stock Consideration.
|
(d)
Each share of Triumph Common Stock, when so converted pursuant to Section 2.1(c), shall automatically be canceled and retired
and shall cease to exist as of the Effective Time, and each certificate (an “Old Certificate”, it being understood
that any reference herein to “Old Certificate” shall be deemed to include reference to book-entry account statements
relating to ownership of shares of Triumph Common Stock (a “Book-Entry Share”)) registered in the transfer
books of Triumph that immediately prior to the Effective Time represented shares of Triumph Common Stock shall thereafter cease
to have any rights with respect to such Triumph Common Stock other than the right to receive the Merger Consideration in accordance
with ARTICLE 3.
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2.2
|
Anti-Dilution
Provisions.
|
In
the event Simmons changes the number of shares of Simmons Common Stock issued and outstanding between the date of this Agreement
and the Effective Time as a result of a stock split, stock dividend, or similar recapitalization with respect to such stock and
the record date therefor (in the case of a stock dividend) or the effective date thereof (in the case of a stock split or similar
recapitalization for which a record date is not established) shall be between the date of this Agreement and the Effective Time,
the Merger Consideration shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully
the effect of any such change.
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2.3
|
Treatment
of Triumph Equity Rights.
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(a)
At the Effective Time, each option granted by Triumph to purchase shares of Triumph Common Stock under the (i) Triumph
2006 Incentive and Non-Qualified Stock Option Plan, (ii) Triumph 2012 Incentive and Non-Qualified Stock Option Plan, or (iii)
Triumph 2017 Incentive and Non-Qualified Stock Option Plan, whether vested or unvested, that is outstanding and unexercised immediately
prior to the Effective Time
(a “Triumph Stock Option”) shall be canceled and converted into the right to receive
from Simmons a cash payment (“Triumph Stock Option Payout”) equal to the applicable Triumph Stock Option Amount.
Notwithstanding the foregoing, any Triumph Stock Option with an Option Exercise Price that equals or exceeds the Fully Diluted
Per Share Value shall be canceled with no consideration being paid to the optionholder with respect to such Triumph Stock Option.
(b)
Notwithstanding anything herein to the contrary, if the Cash Consideration is less than $0.00, then the Aggregate Cash
Consideration shall be increased such that the Cash Consideration equals $0.00. The amount by which the Aggregate Cash Consideration
is increased shall be referred to as the “Aggregate Cash Increase” If the Aggregate Cash Consideration is increased,
then the Stock Consideration shall be decreased by the number of shares of Simmons Common Stock equal to the quotient obtained
by dividing the Aggregate Cash Increase by the Average Closing Price (for the avoidance of doubt, if the quotient includes a fractional
share, then the quotient shall be rounded up to the next whole share (for example, if the quotient is 1,000.34, then the quotient
shall be rounded up to 1,001)). For the avoidance of doubt, any adjustments in the Aggregate Cash Consideration or the Stock Consideration
pursuant to this Section 2.3(b) shall be independent of, and shall be applied after giving effect to, any adjustments pursuant
to Sections 2.5 or 9.1(g) (if applicable).
(c)
Without limiting Section 7.8 hereof, the board of directors of Triumph or any committee thereof, as applicable, shall,
prior to the Closing and effective as of no later than the day immediately prior to, and contingent upon, the Closing, adopt any
resolutions and take any actions, and cause any actions to be taken, that are necessary or, in the reasonable determination of
Simmons, advisable to effectuate the provisions of this Section 2.3.
No
certificate, book-entry share or scrip representing fractional shares of Simmons Common Stock shall be issued upon the surrender
for exchange of Old Certificates, no dividend or distribution with respect to Simmons Common Stock shall be payable on or with
respect to any such fractional share interests, and such fractional share interests will not entitle the owner thereof to vote
or to any other rights of a shareholder of Simmons. Notwithstanding any other provision of this Agreement, each holder of shares
of Triumph Common Stock exchanged pursuant to the Merger who would otherwise have been entitled to receive a fraction of a share
of Simmons Common Stock (after taking into account all Old Certificates delivered by such Holder) shall receive, in lieu thereof,
a cash payment rounded up to the nearest whole cent (without interest), which payment shall be determined by multiplying (i) the
fraction of a share (rounded to the nearest thousandth when expressed in decimal form) of Simmons Common Stock that such holder
of shares of Triumph Common Stock would otherwise have been entitled to receive pursuant to Section 2.1(c) by (ii) the Average
Closing Price (the “Fractional Share Payment”).
(a)
If, as of the Determination Date, both of the following conditions are satisfied:
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(i)
|
the
Average Closing Price is greater than $37.28; and
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|
(ii)
|
the
difference between (A) the quotient obtained by dividing (1) the Average Closing Price
by (2) $31.07 and (B) the quotient obtained by dividing (1) the average of the closing
prices of the Nasdaq Bank Index (as reported in The Wall Street Journal or, if not reported
thereby, another alternative source as chosen by Simmons) for the 20 consecutive full
trading days ending on and including the Determination Date by (2) $4,489.83, is greater
than 0.20 (or 20%),
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then
the Stock Consideration shall be decreased by the number of whole shares of Simmons Common Stock so that, as a result of such
adjustment, the sum of (i) the product obtained by multiplying the Stock Consideration by the Average Closing Price and (ii) the
Aggregate Cash Consideration shall be no more than the Maximum Merger Consideration. “Maximum Merger Consideration”
shall be the sum of (i) the product of (x) $37.28 and (y) the Stock Consideration and (ii) the Aggregate Cash Consideration.
(b)
In lieu of the adjustment described in paragraph (a) of this section, Simmons may make such other adjustments to the Aggregate
Cash Consideration and the Stock Consideration as it deems appropriate, so long as, following such adjustments, the sum of (i)
the product obtained by multiplying the Stock Consideration by the Average Closing Price and (ii) the Aggregate Cash Consideration
shall be no more than the Maximum Merger Consideration.
ARTICLE
3
EXCHANGE OF SHARES
(a)
Deposit of Exchange Fund. At or promptly following the Effective Time, Simmons shall deposit, or shall cause to
be deposited, with Computershare, Simmons’s transfer agent, or another exchange agent reasonably acceptable to Simmons (the
“Exchange Agent”), for the benefit of the holders of record of shares of Triumph Common Stock (excluding the
Canceled Shares) issued and outstanding immediately prior to the Effective Time (collectively, the “Holders”),
for exchange in accordance with this ARTICLE 3, (i) certificates or, at Simmons’s option, evidence of Simmons Common Stock
in book-entry form issuable pursuant to Section 2.1(c) (collectively referred to as “Simmons Certificates”)
for shares of Simmons Common Stock equal to the Stock Consideration and (ii) immediately available funds for (A) the Cash Consideration,
(B) any Fractional Share Payments to the extent then determinable and (C), after the Effective Time, if applicable, any dividends
or distributions which such Holders have the right to receive pursuant to Section 3.1(d) (collectively, the “Exchange
Fund”). Simmons shall instruct the Exchange Agent to timely pay the Exchange Fund in accordance with this Agreement.
The cash portion of the Exchange Fund shall be invested by the Exchange Agent as directed by Simmons or the Surviving Corporation.
Interest and other income on the Exchange Fund shall be the sole and exclusive property of Simmons and the Surviving Corporation
and shall be paid to Simmons or the Surviving Corporation, as Simmons directs. No investment of the Exchange Fund shall relieve
Simmons, the Surviving Corporation or the Exchange Agent from making the payments required by this Agreement and following any
losses from any such investment, Simmons shall promptly provide additional funds to the Exchange Agent to the extent necessary
to satisfy Simmons’s obligations hereunder for the benefit of the Holders, which additional funds will be deemed to be part
of the Exchange Fund.
(b)
Delivery of Merger Consideration. As soon as reasonably practicable after the Effective Time, the Exchange Agent
shall mail to each Holder of an Old Certificate (including, for the avoidance of doubt, any Book-Entry Share, if required by the
Exchange Agent or at the request of Simmons) a notice advising such Holders of the effectiveness of the Merger, including appropriate
transmittal materials specifying that delivery shall be effected, and risk of loss and title to the Old Certificates (including,
for the avoidance of doubt, Book-Entry Shares, if applicable), shall pass, only upon proper delivery of the Old Certificates (including,
for the avoidance of doubt, Book-Entry Shares, if applicable), and instructions for surrendering the Old Certificates (including,
for the avoidance of doubt, Book-Entry Shares, if applicable), to the Exchange Agent (such materials and instructions to include
customary provisions with respect to delivery of an “agent’s message” with respect to Book-Entry Shares). Upon
proper surrender of an Old Certificate (including, for the avoidance of doubt, Book-Entry Shares, if applicable), for exchange
and cancellation to the Exchange Agent, together with the appropriate transmittal materials, duly completed and validly executed
in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the Holder
of such Old Certificate shall be entitled to receive in exchange therefor the Merger Consideration and such Old Certificate so
surrendered shall
forthwith be canceled. No interest will be paid or accrued for the benefit of Holders on the Merger Consideration
payable upon the surrender of the Old Certificates. The Per Share Stock Consideration delivered to each Holder shall be in non-certificated
book-entry form.
(c)
Share Transfer Books. At the Effective Time, the share transfer books of Triumph shall be closed, and thereafter
there shall be no further registration of transfers of shares of Triumph Common Stock. From and after the Effective Time, Holders
who held shares of Triumph Common Stock immediately prior to the Effective Time shall cease to have rights with respect to such
shares, except as otherwise provided for herein. Until surrendered for exchange in accordance with the provisions of this Section
3.1, each Old Certificate (including, for the avoidance of doubt, each Book-Entry Share) theretofore representing shares of Triumph
Common Stock (other than the Canceled Shares) shall from and after the Effective Time represent for all purposes only the right
to receive the consideration provided in this Agreement in exchange therefor. On or after the Effective Time, any Old Certificates
presented to the Exchange Agent, Simmons or the Surviving Corporation for any reason shall be canceled and exchanged for the Merger
Consideration.
(d)
Dividends with Respect to Simmons Common Stock. No dividends or other distributions declared with respect to Simmons
Common Stock with a record date after the Effective Time shall be paid to the Holder of any unsurrendered Old Certificate with
respect to the whole shares of Simmons Common Stock issuable with respect to such Old Certificate in accordance with this Agreement
until the surrender of such Old Certificate (or affidavit of loss in lieu thereof) in accordance with this Agreement. Subject
to applicable Laws, following surrender of any such Old Certificate (or affidavit of loss and other documentation required by
the Exchange Agent, Simmons, or the Surviving Corporation hereunder in lieu thereof) there shall be paid to the record holder
of the whole shares of Simmons Common Stock, if any, issued in exchange therefor, without interest, (i) all dividends and other
distributions payable in respect of any such whole shares of Simmons Common Stock with a record date after the Effective Time
and a payment date on or prior to the date of such surrender and not previously paid and (ii) at the appropriate payment date,
the amount of dividends or other distributions with a record date after the Effective Time but prior to such surrender and with
a payment date subsequent to such surrender payable with respect to such shares of Simmons Common Stock.
(e)
Termination of Exchange Fund. Any portion of the Exchange Fund (including any interest and other income received
with respect thereto) which remains undistributed to the former Holders on the first anniversary of the Effective Time shall be
delivered to Simmons; and any former Holders who have not theretofore received any Merger Consideration to which they are entitled
under this Agreement shall thereafter look only to Simmons and the Surviving Corporation for payment of their claims with respect
thereto.
(f)
No Liability. If any Old Certificates shall not have been surrendered (or canceled) prior to three years after the
Effective Time (or immediately prior to such earlier date on which the Merger Consideration would escheat to or become the property
of any Regulatory Authority), any such Merger Consideration in respect thereof shall, to the extent permitted by applicable Law,
become the property of Simmons, free and clear of all claims or interest of any Person previously entitled thereto or their successors,
assigns, or personal representatives. None of Simmons, Triumph, the Surviving Corporation or the Exchange Agent, or any employee,
officer, director, agent or Affiliate of any of them, shall be liable to any Holder in respect of any amount that would have otherwise
been payable in respect of any Old Certificate from the Exchange Fund delivered to a public official pursuant to any applicable
abandoned property, escheat or similar Law.
(g)
Withholding Rights. Each and any of Simmons, the Surviving Corporation or the Exchange Agent, as applicable, shall
be entitled to deduct and withhold from the Merger Consideration, Triumph Stock Option Payouts, or any other amounts or property
otherwise payable or distributable to any Person pursuant to this Agreement, such amounts or property (or portions thereof) as
Simmons, the Surviving Corporation or the Exchange Agent is required to deduct and withhold with respect to the making of such
payment or distribution under the Internal Revenue Code, and the rules and regulations promulgated thereunder, or any provision
of
applicable Tax Law. Any amounts so deducted or withheld and remitted to the appropriate Regulatory Authority by Simmons, the
Surviving Corporation, or the Exchange Agent, as applicable, shall be treated for all purposes of this Agreement as having been
paid to the Person in respect of which such deduction and withholding was made by Simmons, the Surviving Corporation, or the Exchange
Agent, as applicable.
(h)
Lost Old Certificates. If any Old Certificate shall have been lost, stolen or destroyed, then upon the making of
an affidavit of that fact by the Person claiming such Old Certificate, as applicable, to be lost, stolen or destroyed and, if
required by the Exchange Agent, Simmons, or the Surviving Corporation, the posting by such Person of a bond in such reasonable
and customary amount as the Exchange Agent, Simmons, or the Surviving Corporation may direct, as indemnity against any claim that
may be made against it with respect to such Old Certificate, the Exchange Agent will issue in exchange for such lost, stolen or
destroyed Old Certificate the Merger Consideration to which the Holder thereof is entitled pursuant to this Agreement.
(i)
Change in Name on Old Certificate. If any Simmons Certificate is to be issued in a name other than that in which
the Old Certificates surrendered (or canceled) in exchange therefor is or are registered, it shall be a condition of the issuance
thereof that the Old Certificates so surrendered (or canceled) shall be properly endorsed (or accompanied by an appropriate instrument
of transfer) and otherwise in proper form for transfer, and that the Person requesting such exchange shall pay to the Exchange
Agent, Simmons or the Surviving Corporation in advance any transfer or other similar Taxes required by reason of the issuance
of a Simmons Certificate in any name other than that of the registered Holder of the Old Certificates surrendered (or canceled),
or required for any other reason, or shall establish to the satisfaction of the Exchange Agent, Simmons and the Surviving Corporation
that such Tax has been paid or is not payable.
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3.2
|
Dissenting
Shareholders.
|
(a)
Notwithstanding anything in this Agreement to the contrary, shares of Triumph Common Stock that are issued and outstanding
immediately prior to the Effective Time and which are held by any Holder who is entitled to demand and properly demands appraisal
of such shares of Triumph Common Stock pursuant to, and who complies in all respects with, the provisions of Section 48-23-101
et seq. of the TBCA (“Section 48-23-101 et seq.”) (the “Triumph Dissenting Shareholders”),
shall not be converted into or be exchangeable for the right to receive any of the consideration as specified in this Agreement
(the “Triumph Dissenting Shares”), but instead such Holder shall be entitled to payment of the fair value of
such Triumph Dissenting Shares in accordance with the provisions of Section 48-23-101 et seq. At the Effective Time, all Triumph
Dissenting Shares shall no longer be outstanding, shall automatically be canceled and retired and shall cease to exist, and each
Holder of Triumph Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair
value of such Triumph Dissenting Shares in accordance with the provisions of Section 48-23-101 et seq. Notwithstanding the foregoing,
if any such Holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 48-23-101
et seq., or a court of competent jurisdiction shall determine that such Holder is not entitled to the relief provided by Section
48-23-101 et seq., then the right of such Holder to be paid the fair value of such Holder’s Triumph Dissenting Shares under
Section 48-23-101 et seq. shall cease and such Triumph Dissenting Shares shall be deemed to have been converted at the Effective
Time into, and shall have become, the right to receive the Merger Consideration.
(b)
Triumph shall give Simmons prompt written notice (but in any event within 48 hours) of any demands for appraisal of any
shares of Triumph Common Stock and any withdrawals of such demands, and Simmons shall have the right to participate in and direct
all negotiations and proceedings with respect to such demands. Triumph shall not, except with the prior written consent of Simmons,
voluntarily make any payment with respect to, or settle, or offer or agree to settle, any such demand for payment.
ARTICLE
4
REPRESENTATIONS AND WARRANTIES OF TRIUMPH
Except
as Previously Disclosed, Triumph hereby represents and warrants to Simmons as follows:
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4.1
|
Organization,
Standing, and Power.
|
(a)
Status of Triumph. Triumph is a corporation duly organized, validly existing and in good standing under the Laws
of the State of Tennessee, is authorized under the Laws of the State of Tennessee to engage in its business as currently conducted
and otherwise has the corporate power and authority to own, lease and operate all of its Assets and to conduct its business in
the manner in which its business is now being conducted. Triumph is duly qualified or licensed to transact business as a foreign
corporation in good standing in the states of the United States and foreign jurisdictions in which its ownership of Assets or
conduct of business requires such qualification or licensure, except where failure to be so qualified or licensed has not had
or would not be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect on Triumph. Triumph
is duly registered with the Federal Reserve as a bank holding company under the BHC Act. True, complete and correct copies of
the charter and bylaws of Triumph, each as in effect as of the date of this Agreement, have been delivered or made available to
Simmons. The charter and bylaws of Triumph comply with applicable Law.
(b)
Status of Triumph Bank. Triumph Bank is a direct, wholly owned Triumph Subsidiary, is duly organized, validly existing
and in good standing under the Laws of the State of Tennessee, is authorized under the Laws of the State of Tennessee to engage
in its business as currently conducted and otherwise has the corporate power and authority to own, lease and operate all of its
Assets and to conduct its business in the manner in which its business is now being conducted. Triumph Bank is authorized by the
Tennessee Department of Financial Institutions (“TDFI”) to engage in the business of banking as a state-chartered
bank. Triumph Bank is in good standing in each jurisdiction in which its ownership of Assets or conduct of business requires such
qualification, except where failure to be so qualified has not had or would not reasonably be expected to have, either individually
or in the aggregate, a Material Adverse Effect on Triumph or Triumph Bank. True, complete and correct copies of the charter and
bylaws of Triumph Bank, each as in effect as of the date of this Agreement, have been delivered or made available to Simmons.
The charter and bylaws of Triumph Bank comply with applicable Law.
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4.2
|
Authority
of Triumph; No Breach by Agreement.
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(a)
Authority. Triumph has the corporate power and authority necessary to execute, deliver, and, other than with respect
to the Merger, perform this Agreement, and with respect to the Merger, upon the approval of this Agreement and the Merger by the
affirmative vote of at least a majority of the outstanding shares of Triumph Common Stock entitled to vote on this Agreement and
the Merger as contemplated by Section 7.1 (the “Triumph Shareholder Approval”), to perform its obligations
under this Agreement and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated herein, including the Merger, have been duly and validly authorized
and approved by all necessary corporate action in respect thereof on the part of Triumph (including approval by and a determination
by all of the members of the board of directors of Triumph that this Agreement is advisable and in the best interests of Triumph’s
shareholders and directing the submission of this Agreement to a vote at a meeting of shareholders of Triumph), subject to the
Triumph Shareholder Approval. This Agreement has been duly executed and delivered by Triumph. Subject to the Triumph Shareholder
Approval, and assuming the due authorization, execution and delivery by Simmons, this Agreement represents a legal, valid, and
binding obligation of Triumph, enforceable against Triumph in accordance with its terms (except in all cases as such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, receivership, conservatorship, moratorium,
or similar Laws affecting the enforcement of creditors’ rights
generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding may
be brought (the “Bankruptcy and Equity Exceptions”)).
(b)
No Conflicts. Subject to the receipt of the Triumph Shareholder Approval, neither the execution and delivery of
this Agreement by Triumph nor the consummation by Triumph of the transactions contemplated hereby, nor compliance by Triumph with
any of the provisions hereof, will (i) conflict with or result in a breach of any provision of Triumph’s charter, bylaws
or other governing instruments, or the charter, bylaws, or other governing instruments of Triumph Bank or any other Triumph Subsidiary,
or any resolution adopted by the board of directors or the shareholders of any Triumph Entity, or (ii) subject to receipt of the
Requisite Regulatory Approvals, (x) violate any Law applicable to any Triumph Entity or any of their respective Assets or (y)
violate, conflict with, constitute or result in a Default under or the loss of any benefit under, or result in the creation of
any Lien upon any of the respective Assets of any Triumph Entity under any of the terms, conditions or provisions of any Contract
or Permit of any Triumph Entity or under which any of their respective Assets may be bound, except in the case of clause (y) above
where such violations, conflicts or Defaults have not had or would not reasonably be expected to have, either individually or
in the aggregate, a Material Adverse Effect on Triumph.
(c)
Consents. Other than in connection or compliance with the provisions of the Securities Laws (including the filing
and declaration of effectiveness of the Registration Statement), applicable state Laws, the rules of Nasdaq, the TBCA, the ABCA,
the Federal Deposit Insurance Act (the “FDIA”), the BHC Act, and the Requisite Regulatory Approvals, no notice
to, filing with, or Consent of, any Regulatory Authority or any third party is necessary for the consummation by Triumph of the
Merger and the other transactions contemplated by this Agreement. As of the date hereof, Triumph has no Knowledge of any reason
why the Requisite Regulatory Approvals will not be received in order to permit consummation of the Merger on a timely basis.
(d)
Triumph Debt. Triumph has no debt that is secured by Triumph Bank capital stock.
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4.3
|
Capitalization
of Triumph.
|
(a)
Ownership. The authorized capital stock of Triumph consists of 7,000,000 shares of Triumph Common Stock, $1.00 par
value per share, and 1,000,000 shares of Triumph Preferred Stock, with no par value. As of the close of business on June 3, 2021,
(i) 4,474,845 shares of Triumph Common Stock (excluding treasury shares) were issued and outstanding, (ii) 569,732 shares of Triumph
Common Stock were held by Triumph in its treasury, (iii) except as otherwise provided in this Section 4.3(a), no shares of Triumph
Common Stock were reserved for issuance upon the exercise of outstanding Equity Rights of Triumph, (iv) 262,305 shares of Triumph
Common Stock were reserved for issuance upon the exercise of outstanding Triumph Stock Options, and (v) 0 shares of Triumph Preferred
Stock were issued and outstanding. As of the Effective Time, no more than (A) 4,737,150 shares of Triumph Common Stock will be
issued and outstanding (excluding treasury shares), (B) 569,732 shares of Triumph Common Stock will be held by Triumph in its
treasury, (C) 0 shares of Triumph Preferred Stock will be issued and outstanding and (D) except as otherwise provided in this
Section 4.3(a), no shares of Triumph Common Stock will be reserved for issuance upon the exercise of outstanding Equity Rights
of Triumph; and as of immediately prior to the Effective Time, there will be no more than 241,105 Triumph Stock Options Outstanding.
Additionally, as of immediately prior to the Effective Time, there will be, in the aggregate, no more than 4,737,150 shares of
Triumph Common Stock that are either issued and outstanding or reserved for issuance upon the exercise of Triumph Stock Options.
(b)
Other Rights or Obligations. All of the issued and outstanding shares of capital stock (and other equity interest,
including Triumph Stock Options) of Triumph are duly authorized and validly issued and outstanding, and are fully paid and nonassessable
and free of preemptive rights, with no personal liability attaching to the ownership thereof. None of the outstanding shares of
capital stock (or other equity interest, including Triumph Stock Options) of Triumph has been issued in violation of or subject
to any preemptive rights or other rights to subscribe for or purchase securities of the current or past shareholders of Triumph.
(c)
Outstanding Equity Rights. Other than the Triumph Stock Options outstanding as of the date of this Agreement and
set forth in Sections 4.3(a)(iii) and 4.3(a)(iv), there are no (i) existing Equity Rights with respect to the securities of Triumph,
(ii) Contracts under which Triumph is or may become obligated to sell, issue, deliver, transfer or otherwise dispose of or redeem,
purchase or otherwise acquire any securities of Triumph, (iii) Contracts under which Triumph is or may become obligated to register
shares of Triumph’s capital stock or other securities under the Securities Act, (iv) shareholder agreements, voting trusts
or other agreements, arrangements or understandings to which Triumph is a party or of which Triumph has Knowledge, that may reasonably
be expected to affect the exercise of voting or any other rights with respect to the capital stock of Triumph or (v) outstanding
bonds, debentures, notes or other indebtedness having the right to vote (or which are convertible into, or exchangeable for, securities
having the right to vote) on any matters on which the shareholders of Triumph may vote. No Triumph Subsidiary owns any capital
stock of Triumph.
(a)
Capitalization of Triumph Bank. The authorized capital stock of Triumph Bank consists of 5,000,000 shares of Triumph
Bank Common Stock. 1,879,000 shares of Triumph Bank Common Stock are outstanding as of the date of this Agreement. All of the
outstanding shares of Triumph Bank Capital Stock are directly and beneficially owned and held by Triumph.
(b)
Other Rights or Obligations. All of the issued and outstanding shares of Triumph Bank Capital Stock (and other equity
interests in Triumph Bank) are duly and validly issued and outstanding and are fully paid and nonassessable. None of the outstanding
shares of Triumph Bank Capital Stock (or other equity interests in Triumph Bank) has been issued in violation of or subject to
any preemptive rights or other rights to subscribe for or purchase securities of the current or past shareholders of Triumph Bank.
(c)
Subsidiaries of Triumph Bank. Triumph Bank does not have any Subsidiaries nor own any equity interests in any other
Person other than the entities set forth in Section 4.4(c) of Triumph’s Disclosure Memorandum.
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4.5
|
Triumph
Subsidiaries.
|
(a)
Ownership. Triumph or Triumph Bank owns all of the issued and outstanding shares of capital stock (and other equity
interests) of the Triumph Subsidiaries. Each Triumph Subsidiary is duly organized, validly existing and in good standing under
the Laws of the State of its organization, is authorized under applicable Laws to engage in its business as now conducted and
otherwise has the corporate (or comparable) power and authority to own or lease all of its Assets and to conduct its business
in the manner in which its business is now being conducted. Triumph does not have any direct or indirect Subsidiaries nor own
any equity interests in any other Person other than Triumph Bank and the entities set forth in Section 4.5 of Triumph’s
Disclosure Memorandum and indirect ownership through Triumph Bank of the entities set forth in Section 4.4(c) of Triumph’s
Disclosure Memorandum.
(b)
Other Rights or Obligations. All of the issued and outstanding shares of capital stock (and other equity interests)
of each Triumph Subsidiary are duly authorized and validly issued and outstanding, and are fully paid and nonassessable and free
of preemptive rights, with no personal liability attaching to the ownership thereof, and are owned by Triumph or Triumph Bank
free and clear of any Lien. None of the outstanding shares of capital stock (or other equity interests) of each Triumph Subsidiary
has been issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities of
the current or past shareholders or equity interest holder of each Triumph Subsidiary. The charter, bylaws, or other governing
documents of each Triumph Subsidiary comply with applicable Law.
(c)
Outstanding Equity Rights. There are no (i) existing Equity Rights with respect to the securities of any Triumph
Subsidiary, (ii) Contracts under which any Triumph Subsidiary are or may become obligated to sell, issue, deliver, transfer or
otherwise dispose of or redeem, purchase or otherwise acquire any securities of any Triumph Subsidiary, (iii) Contracts under
which any Triumph Subsidiary is or may become obligated to register shares of any Triumph Subsidiary’s capital stock or
other securities under the Securities Act, (iv) shareholder agreements, voting trusts or other agreements, arrangements or understandings
to which any Triumph Subsidiary is a party or of which Triumph has Knowledge, that may reasonably be expected to affect the exercise
of voting or any other rights with respect to the capital stock of any Triumph Subsidiary, or (v) outstanding bonds, debentures,
notes or other indebtedness having the right to vote (or which are convertible into, or exchangeable for, securities having the
right to vote) on any matters on which the shareholders of any Triumph Subsidiary may vote.
Since
December 31, 2016, each Triumph Entity has filed on a timely basis, all forms, filings, registrations, submissions, statements,
certifications, returns, information, data, reports and documents required to be filed or furnished by it with the TDFI, the Federal
Deposit Insurance Corporation (“FDIC”), the Federal Reserve, and any other applicable Regulatory Authority,
as the case may be. All such forms, filings, registrations, submissions, statements, certifications, returns, information, data,
reports and documents required to be filed under any applicable Law, including any and all federal and state banking Laws, were
complete and accurate in all material respects and in compliance in all material respects with the requirements of any applicable
Law. Subject to Section 10.15, there (i) is no unresolved violation, criticism, or exception by any Regulatory Authority with
respect to any form, filing, registration, submission, statement, certification, return, information, data, report or document
relating to any examinations, inspections or investigations of any Triumph Entity and (ii) has been no formal or informal inquiries
by, or disagreements or disputes with, any Regulatory Authority with respect to the business, operations, policies or procedures
of any Triumph Entity. Subject to Section 10.15 and except for normal examinations conducted by a Regulatory Authority in the
Ordinary Course, no Regulatory Authority has initiated or has pending any proceeding or, to the Knowledge of Triumph, investigation
into the business or operations of Triumph or the Triumph Subsidiaries since December 31, 2016, except where such proceedings
or investigations would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect
on Triumph or the Triumph Subsidiaries.
(a)
Financial Statements. Triumph has made available to Simmons the Triumph Financial Statements. The Triumph Financial
Statements with respect to periods ending prior to the date of this Agreement (i) are true, complete and correct in all material
respects, and have been prepared from, and are in accordance with, the Books and Records of the Triumph Entities, (ii) have been
prepared in accordance with GAAP, regulatory accounting principles and other applicable accounting requirements, in each case,
consistently applied, except, in each case, as may be otherwise indicated in the notes thereto and except with respect to the
unaudited financial statements for the omission of footnotes and (iii) fairly present in all material respects the consolidated
financial condition of the Triumph Entities as of the respective dates set forth therein and the results of operations, shareholders’
equity and cash flows of the Triumph Entities for the respective periods set forth therein. The consolidated Triumph Financial
Statements to be prepared after the date of this Agreement and prior to the Closing (A) will be true, complete and correct in
all material respects, (B) will have been prepared in accordance with GAAP, regulatory accounting principles and other applicable
accounting requirements, in each case, consistently applied except, in each case, as may be otherwise indicated in the notes thereto
and except with respect to unaudited financial statements for the omission of footnotes and year-end adjustments, and (C) will
fairly present in all material respects the consolidated financial condition of Triumph as of the respective dates set forth therein
and the results of operations, shareholders’ equity (except with respect to unaudited financial statements), and cash flows
(except with respect to unaudited financial statements) of Triumph for the respective
periods set forth therein, subject in the
case of unaudited financial statements to the omission of footnotes and year-end adjustments.
(b)
Call Reports. The financial statements contained in the Call Reports of Triumph Bank for all of the periods ending
after December 31, 2016 (i) are true, complete and correct in all material respects, (ii) have been prepared in accordance with
GAAP and regulatory accounting principles consistently applied, except, in each case, as may be otherwise indicated in the notes
thereto and except for the omission of footnotes and (iii) fairly present in all material respects the financial condition of
Triumph Bank as of the respective dates set forth therein and the results of operations and shareholders’ equity for the
respective periods set forth therein, subject to year-end adjustments. The financial statements contained in the Call Reports
of Triumph Bank to be prepared after the date of this Agreement and prior to the Closing (A) will be true, complete and correct
in all material respects, (B) will have been prepared in accordance with GAAP and regulatory accounting principles consistently
applied, except, in each case, as may be otherwise indicated in the notes thereto and except for the omission of footnotes and
(C) will fairly present in all material respects the financial condition of Triumph Bank as of the respective dates set forth
therein and the results of operations and shareholders’ equity of Triumph Bank for the respective periods set forth therein,
subject to year-end adjustments.
(c)
Systems and Processes. Each of Triumph and Triumph Bank has in place sufficient systems and processes that are customary
for a financial institution of the size of Triumph and Triumph Bank and that are designed to (i) provide reasonable assurances
regarding the reliability of financial reporting and the preparation of the Triumph Financial Statements and Triumph Bank’s
financial statements, including the Call Reports, (ii) in a timely manner accumulate and communicate to Triumph and Triumph Bank’s
principal executive officer and principal financial officer the type of information that would be required to be disclosed in
Triumph Financial Statements and Triumph Bank’s financial statements, including the Call Reports, or any forms, filings,
registrations, submissions, statements, certifications, returns, information, data, reports or documents required to be filed
or provided to any Regulatory Authority, (iii) ensure access to Triumph and Triumph Bank’s Assets is permitted only in accordance
with management’s authorization, and (iv) ensure the reporting of such Assets is compared with existing Assets at regular
intervals. Since December 31, 2016, neither Triumph nor Triumph Bank nor, to Triumph’s Knowledge, any Representative of
any Triumph Entity has received or otherwise had or obtained knowledge of any complaint, allegation, assertion or claim, whether
written or oral, regarding the adequacy of such systems and processes or the accuracy or integrity of Triumph Financial Statements,
Triumph Bank’s financial statements, including the Call Reports, or the accounting or auditing practices, procedures, methodologies
or methods (including with respect to loan loss reserves, write-downs, charge-offs and accruals) of any Triumph Entity or their
respective internal accounting controls, including any complaint, allegation, assertion or claim that Triumph or any Triumph Subsidiary
has engaged in questionable accounting or auditing practices. No attorney representing any Triumph Entity, whether or not employed
by any Triumph Entity, has reported evidence of a material violation of Securities Laws, breach of fiduciary duty or similar violation
by any Triumph Entity or any of its officers, directors or employees to the board of directors of any Triumph Entity or any committee
thereof or to any director or officer of any Triumph Entity. To Triumph’s Knowledge, there has been no instance of fraud
by any Triumph Entity, whether or not material, that occurred during any period covered by Triumph Financial Statements.
(d)
Records. The records, systems, controls, data and information of the Triumph Entities are recorded, stored, maintained
and operated under means (including any electronic, mechanical or photographic process, whether computerized or not) that are
under the exclusive ownership and direct control of a Triumph Entity or accountants (including all means of access thereto and
therefrom), except where such non-exclusive ownership and non-direct control has not had or would not reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect on Triumph or Triumph Bank. Triumph and Triumph Bank
have disclosed, based on their most recent evaluation prior to the date of this Agreement, to their outside auditors and the audit
committee of the Triumph board of directors (A) any significant deficiencies in the design or operation of internal controls which
could adversely affect in any material respect their ability to record, process,
summarize or report financial data and have disclosed
to their auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management
or other employees who have a significant role in their internal controls.
(e)
Auditor Independence. During the periods covered by the Triumph Financial Statements, Triumph’s outside auditor
was independent of Triumph, Triumph Bank and their respective management. As of the date hereof, the outside auditor for Triumph
and Triumph Bank has not resigned or been dismissed as a result of or in connection with any disagreements with Triumph or Triumph
Bank on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure.
The
Books and Records of Triumph and Triumph Bank have been and are being maintained in the Ordinary Course in accordance and compliance
in all material respects with all applicable accounting requirements and Laws and are complete and accurate in all material respects
to reflect corporate action by Triumph and Triumph Bank.
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4.9
|
Absence
of Undisclosed Liabilities.
|
No
Triumph Entity has incurred any Liability, except for Liabilities (a) incurred in the Ordinary Course since December 31, 2020,
(b) incurred in connection with this Agreement and the transactions contemplated hereby, or (c) that are accrued or reserved against
in the consolidated balance sheet of Triumph as of December 31, 2020 included in the Triumph Financial Statements at and for the
period ending December 31, 2020.
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4.10
|
Absence
of Certain Changes or Events.
|
(a)
Since December 31, 2020, there has not been a Material Adverse Effect on Triumph.
(b)
Since December 31, 2020, (i) the Triumph Entities have carried on their respective businesses only in the Ordinary Course,
(ii) there has not been any material damage, destruction or other casualty loss with respect to any material Asset owned, leased
or otherwise used by any Triumph Entity whether or not covered by insurance and (iii) none of the Triumph Entities have taken
any action that would be prohibited by Section 6.2 if taken after the date hereof.
(a)
All Triumph Entities have timely filed with the appropriate Taxing authorities all material Tax Returns in all jurisdictions
in which such Tax Returns are required to be filed, and such Tax Returns are correct and complete in all material respects. None
of the Triumph Entities is the beneficiary of any extension of time within which to file any Tax Return (other than any extensions
to file Tax Returns obtained in the Ordinary Course and automatically granted). All material Taxes of the Triumph Entities (whether
or not shown on any Tax Return) that are due have been fully and timely paid. There are no Liens for Taxes (other than a Lien
for Taxes not yet due and payable) on any of the Assets of any of the Triumph Entities. No claim has ever been made in writing
by an authority in a jurisdiction where any Triumph Entity does not file a Tax Return that such Triumph Entity may be subject
to Taxes by that jurisdiction.
(b)
None of the Triumph Entities has received any written notice of assessment or proposed assessment in connection with any
material amount of Taxes, and there are no threatened in writing or pending disputes, claims, audits or examinations regarding
any Taxes of any Triumph Entity or the Assets of any Triumph Entity. None of the Triumph Entities has waived any statute of limitations
in respect of any Taxes.
(c)
Each Triumph Entity has complied in all material respects with all applicable Laws relating to the withholding of Taxes
and the payment thereof to appropriate authorities, including Taxes required to have been withheld and paid in connection with
amounts paid or owing to any employee or independent contractor, and Taxes required to be withheld and paid pursuant to Sections
1441 and 1442 of the Internal Revenue Code or similar provisions under foreign Law.
(d)
The unpaid Taxes of each Triumph Entity (i) did not, as of the most recent fiscal month end, materially exceed the reserve
for Tax Liability (other than any reserve for deferred Taxes established to reflect timing differences between book and Tax income)
set forth on the face of the most recent balance sheet (rather than in any notes thereto) for such Triumph Entity and (ii) do
not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with past custom and practice
of the Triumph Entities in filing their Tax Returns.
(e)
None of the Triumph Entities is a party to any Tax indemnity, allocation or sharing agreement (other than any agreement
solely between the Triumph Entities and other than any customary Tax indemnifications contained in credit or other commercial
agreements the primary purpose of which agreements does not relate to Taxes) and none of the Triumph Entities has been a member
of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which was Triumph)
or has any Tax Liability of any Person under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or
foreign Law (other than the other members of the consolidated group the common parent of which is or was Triumph), or as a transferee
or successor.
(f)
During the two-year period ending on the date hereof, none of the Triumph Entities was a distributing corporation or a
controlled corporation in a transaction intended to be governed by Section 355 of the Internal Revenue Code. During the five-year
period ending on the date hereof, none of the Triumph Entities was a United States real property holding corporation within the
meaning of Section 897(c)(2) of the Internal Revenue Code.
(g)
Each Triumph Benefit Plan or other arrangement of a Triumph Entity that is a “nonqualified deferred compensation
plan” within the meaning of Section 409A of the Internal Revenue Code has a plan document that satisfies the requirements
of Section 409A of the Internal Revenue Code and has been operated in compliance with the terms of such plan document and the
requirements of Section 409A of the Internal Revenue Code, and the regulations thereunder, in each case such that no Tax is or
has been due or payable under Section 409A of the Internal Revenue Code. No Triumph Entity has any obligation to gross-up or otherwise
reimburse any person for any Tax incurred by such person pursuant to Section 409A, Section 280G or Section 4999 of the Internal
Revenue Code or otherwise. All Triumph Stock Options were granted at no less than “fair market value” for purposes
of Section 409A of the Internal Revenue Code, and each Triumph Stock Option is exempt from Section 409A of the Internal Revenue
Code.
(h)
None of the Triumph Entities will be required to include after the Closing any material adjustment in taxable income pursuant
to Section 481 of the Internal Revenue Code or any comparable provision under state or foreign Tax Laws as a result of transactions
or events occurring prior to the Closing. None of the Triumph Entities have participated in any “reportable transaction”
within the meaning of Treasury Regulation Section 1.6011-4.
(i)
All Triumph Entities have, to the extent applicable, (i) to the extent deferred, properly complied in all material respects
with all applicable Laws in order to defer the amount of the employer’s share of any “applicable employment taxes”
under Section 2302 of the CARES Act, (ii) to the extent applicable, eligible, and claimed, or intended to be claimed, properly
complied in all material respects with all Laws and duly accounted for any available Tax credits under Sections 7001 through 7004
of the Families First Coronavirus Response Act and Section 2301 of the CARES Act, (iii) not deferred any payroll Tax obligations
(including those imposed by
Sections 3101(a) and 3201 of the Internal Revenue Code) (for example, by a failure to timely withhold,
deposit or remit such amounts in accordance with the applicable provisions of the Internal Revenue Code and the Treasury Regulations
promulgated thereunder) pursuant to or in connection with any U.S. presidential memorandum or executive order, and (iv) not sought
a PPP Loan.
(a)
Each Triumph Entity has good and marketable title to those Assets reflected in the most recent Triumph Financial Statements
as being owned by such Triumph Entity or acquired after the date thereof (except Assets sold or otherwise disposed of since the
date thereof in the Ordinary Course), free and clear of all Liens, except (a) statutory Liens securing payments not yet due, (b)
Liens for real property Taxes not yet due and payable, (c) easements, rights of way, and other similar encumbrances that do not
materially affect the use of the Assets subject thereto or affected thereby or otherwise materially impair business operations
and use of such Assets and (d) such imperfections or irregularities of title or Liens as do not materially affect the use of the
Assets subject thereto or affected thereby or otherwise materially impair business operations and use of such Assets (collectively,
“Permitted Liens”). Triumph is the fee simple owner of all owned real property and the lessee of all leasehold
estates reflected in the most recent Triumph Financial Statements, free and clear of all Liens of any nature whatsoever, except
for Permitted Liens, and is in possession of the properties purported to be owned or leased thereunder, as applicable, and each
such lease is valid without Default thereunder by the lessee or, to the Knowledge of Triumph, the lessor. There are no pending
or, to the Knowledge of Triumph, threatened condemnation or eminent domain proceedings against any real property that is owned
or leased by Triumph. The Triumph Entities own or lease all properties as are necessary to their operations as now conducted and
no Person has any option or right to acquire or purchase any ownership interest in the owned real property or any portion thereof.
(b)
Section 4.12(b) of Triumph’s Disclosure Memorandum sets forth a complete and correct list of all street addresses
and fee owners of all real property owned, leased or licensed by any Triumph Entity or otherwise occupied by a Triumph Entity
or used or held for use by any Triumph Entity (collectively, the “Real Property”). Other than as set forth
on Section 4.12(b) of Triumph’s Disclosure Memorandum, there are no Persons in possession of any portion of any of the Real
Property owned or leased by any Triumph Entity other than such Triumph Entity, and no Person other than a Triumph Entity has the
right to use or occupy for any purpose any portion of any of the Real Property owned, leased or licensed by a Triumph Entity.
Triumph or a Triumph Subsidiary has good and marketable fee title to all Real Property owned by it free and clear of all Liens,
except Permitted Liens. There are no outstanding options, rights of first offer or refusal or other pre-emptive rights or purchase
rights with respect to any such owned Real Property.
(c)
All leases of Real Property under which any Triumph Entity, as lessee, leases Real Property, are valid, binding and enforceable
in accordance with their respective terms and Triumph or such Triumph Subsidiary has good and marketable leasehold interests to
all Real Property leased by them. There is not under any such lease any material existing Default by any Triumph Entity or, to
Triumph’s Knowledge, any other party thereto, or any event which with notice or lapse of time would constitute such a material
Default and all rent and other sums and charges due and payable under such lease have been paid.
(d)
The Assets reflected in the most recent Triumph Financial Statements which are owned or leased by the Triumph Entities,
and in combination with the Real Property, the Intellectual Property of any Triumph Entity, and contractual benefits and burdens
of the Triumph Entities, constitute, as of the Closing Date, all of the Assets, rights and interests necessary to enable the Triumph
Entities to operate consolidated businesses in the Ordinary Course and as the same is expected to be conducted on the Closing
Date.
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4.13
|
Intellectual
Property; Privacy.
|
(a)
Each Triumph Entity owns or has a valid license to use (in each case, free and clear of any Liens other than any Permitted
Liens) all of the Intellectual Property necessary to carry on the business of such Triumph Entity as it is currently conducted.
Each Triumph Entity is the owner of or has a license, with the right to sublicense, to any Intellectual Property sold or licensed
to a third party by such Triumph Entity in connection with its business operations, and such Triumph Entity has the right to convey
by sale or license any Intellectual Property so conveyed. No Triumph Entity is in Default under any of its Intellectual Property
licenses. No proceedings have been instituted, or are pending or to the Knowledge of Triumph threatened, which challenge the rights
of any Triumph Entity with respect to Intellectual Property used, sold or licensed by such Triumph Entity in the course of its
business, nor has any Person claimed or alleged any rights to such Intellectual Property. The conduct of the business of each
Triumph Entity and the use of any Intellectual Property by each Triumph Entity does not infringe, misappropriate or otherwise
violate the Intellectual Property rights of any other Person. No Person has asserted to Triumph in writing that any Triumph Entity
has infringed, misappropriated or otherwise violated the Intellectual Property rights of such Person. The validity, continuation
and effectiveness of all licenses and other agreements relating to Intellectual Property used by any Triumph Entity in the course
of its business and the current terms thereof will not be affected by the transactions contemplated by this Agreement, the use
of the “Triumph Bancshares, Inc.” and “Triumph Bank” trademarks will be transferred to Simmons or Simmons
Bank in connection with the transactions contemplated by this Agreement and after the Effective Time, no Person besides Simmons
shall have right and title to the “Triumph Bancshares, Inc.” and “Triumph Bank” trademarks and trade names.
All of the Triumph Entities’ right to the use of and title to the names “Triumph Bancshares, Inc.” and “Triumph
Bank” will be transferred to Simmons in connection with the completion of the transactions contemplated by this Agreement.
(b)
(i) The computer, information technology and data processing systems, facilities and services used by the Triumph Entities,
including all software, hardware, networks, communications facilities, platforms and related systems and services (collectively,
the “Systems”), are reasonably sufficient for the conduct of the respective businesses of the Triumph Entities
as currently conducted and (ii) the Systems are in good working condition to effectively perform all computing, information technology
and data processing operations necessary for the operation of the respective businesses of the Triumph Entities as currently conducted.
To Triumph’s Knowledge, no third party or Representative has gained unauthorized access to any Systems owned or controlled
by any Triumph Entity, and each Triumph Entity has taken commercially reasonable steps and implemented commercially reasonable
safeguards to ensure that the Systems are secure from unauthorized access and free from any disabling codes or instructions, spyware,
Trojan horses, worms, viruses or other software routines that permit or cause unauthorized access to, or disruption, impairment,
disablement, or destruction of, software, data or other materials. Each Triumph Entity has implemented backup and disaster recovery
policies, procedures and systems consistent with generally accepted industry standards applicable to such Triumph Entity and sufficient
to reasonably maintain the operation of the respective businesses of the Triumph Entities in all material respects. Each Triumph
Entity has implemented and maintained commercially reasonable measures and procedures designed to reasonably mitigate the risks
of cybersecurity breaches and attacks.
(c)
Each Triumph Entity has (i) complied in all material respects with all applicable Laws which govern the receipt, collection,
compilation, use, storage, processing, sharing, safeguarding, security, disposal, destruction, disclosure, transmission or transfer
of the personal data or information of customers or other individuals (“Personally Identifiable Information”)
and similar Laws governing data privacy, and with all of its published privacy and data security policies and internal privacy
and data security policies and guidelines, including with respect to the receipt, collection, compilation, use, storage, processing,
sharing, safeguarding, security, disposal, destruction, disclosure, transmission or transfer of Personally Identifiable Information
and (ii) taken commercially reasonable measures to ensure that all Personally Identifiable Information in its possession or control
is protected against loss, damage, and unauthorized access, use, modification, or other misuse. To Triumph’s Knowledge,
there has been no loss, damage, or unauthorized access, use, modification, or other misuse of any such Personally Identifiable
Information by any Triumph Entity or any other Person.
|
4.14
|
Environmental
Matters.
|
(a)
Each Triumph Entity, its Participation Facilities, and its Operating Properties are, and have been since December 31, 2016,
in compliance, in all material respects, with all Environmental Laws.
(b)
There is no Litigation pending or, to the Knowledge of Triumph, threatened before Regulatory Authority or other forum in
which any Triumph Entity or any of its Operating Properties or Participation Facilities (or Triumph in respect of such Operating
Property or Participation Facility) has been or, with respect to threatened Litigation, may be named as a defendant (i) for alleged
noncompliance (including by any predecessor) with or Liability under any Environmental Law or (ii) relating to the release, discharge,
spillage, or disposal into the environment of any Hazardous Material, whether or not occurring at, on, under, adjacent to, or
affecting (or potentially affecting) a site currently or formerly owned, leased, or operated by any Triumph Entity or any of its
Operating Properties or Participation Facilities, nor is there any reasonable basis for any Litigation of a type described in
this sentence. No Triumph Entity is subject to any Order imposing any Liability or obligation with respect to any Environmental
Law that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on
Triumph, nor is any such order threatened.
|
4.15
|
Compliance
with Laws.
|
(a)
Each Triumph Entity has, and since December 31, 2016 has had, in effect all Permits necessary for it to lawfully own, lease,
or operate its material Assets and to carry on its business as now or then conducted (and have paid all fees and assessments due
and payable in connection therewith). There has occurred no material Default under any such Permit and to the Knowledge of Triumph
no suspension or cancellation of any such Permit is threatened. None of the Triumph Entities:
|
(i)
|
is
in Default under any of the provisions of its charter or bylaws (or other governing instruments);
|
|
(ii)
|
is
in material Default under any Laws, Orders, or Permits applicable to its business or
employees conducting its business; or
|
|
(iii)
|
subject
to Section 10.15, has since December 31, 2016 received any written notification or communication
from any agency or department of federal, state, or local government or any Regulatory
Authority or the staff thereof asserting that any Triumph Entity is not in compliance
with any Laws, Orders, or Permits or engaging in an unsafe or unsound activity or in
troubled condition.
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(b)
Each Triumph Entity is in compliance in all material respects with all applicable Laws, regulatory capital requirements,
Consents, Permits, Orders, or conditions imposed in writing by a Regulatory Authority, to which they or their Assets may be subject.
(c)
To the Knowledge of Triumph, each director, officer, shareholder, manager, and employee of the Triumph Entities that has
been engaged at any time in the development, use or operation of the Triumph Entities and their respective Assets, and each Independent
Contractor, is and has been in compliance with all applicable Laws relating to the development, use or operation of the Triumph
Entities and their respective Assets. No proceeding or notice has been filed, given, commenced or, to the Knowledge of Triumph,
threatened against any of the Triumph Entities or any of their respective directors, officers, members, Affiliates, managers,
employees or Independent Contractors alleging any failure to so comply with all applicable Laws.
(d)
Triumph Bank (i) has properly certified all foreign deposit accounts and has made all necessary Tax withholdings on all
of its deposit accounts, (ii) has timely and properly filed and maintained all requisite
Currency Transaction Reports and other
related forms, including any requisite Custom Reports required by any agency of the U.S. Department of the Treasury, including
the United States Internal Revenue Service (“IRS”), and (iii) has timely filed all Suspicious Activity Reports
with the Financial Crimes Enforcement Network (bureau of the U.S. Department of the Treasury) required to be filed by it pursuant
to all applicable Laws.
(e)
Subject to Section 10.15, Triumph and Triumph Bank are “well-capitalized” and “well managed” (as
those terms are defined in applicable Laws).
(f)
Since December 31, 2016, each Triumph Entity has properly administered, in all material respects, all accounts for which
it acts as a fiduciary, including accounts for which any Triumph Entity serves as a trustee, agent, custodian, personal representative,
guardian, conservator or investment adviser, in accordance with the terms of the applicable governing documents and applicable
Laws. Since December 31, 2014, no Triumph Entity, or, to Triumph’s Knowledge, any director, officer, or employee of any
Triumph Entity, has committed any material breach of trust or fiduciary duty with respect to any such fiduciary account, and the
accountings for each such fiduciary account are true, complete and correct and accurately reflect the assets of such fiduciary
account.
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4.16
|
Foreign
Corrupt Practices.
|
(a)
No Triumph Entity, or, to the Knowledge of Triumph, any director, officer, employee, agent or other Person acting on behalf
of a Triumph Entity has, directly or indirectly, (i) used any funds of any Triumph Entity for unlawful contributions, unlawful
gifts, unlawful entertainment or other unlawful expenses relating to political activity, (ii) made any unlawful payment to foreign
or domestic governmental officials or employees or to foreign or domestic political parties or campaigns from funds of any Triumph
Entity, (iii) violated any provision that would result in the violation of the Foreign Corrupt Practices Act of 1977, as amended,
or any similar law, (iv) established or maintained any unlawful fund of monies or other Assets of any Triumph Entity, (v) made
any fraudulent entry on the Books and Records of any Triumph Entity, (vi) made any unlawful bribe, unlawful rebate, unlawful payoff,
unlawful influence payment, unlawful kickback or other unlawful payment to any Person, private or public, regardless of form,
whether in money, property or services, to obtain favorable treatment in securing business, to obtain special concessions for
any Triumph Entity, to pay for favorable treatment for business secured or to pay for special concessions already obtained for
any Triumph Entity, or is currently subject to any United States sanctions administered by the Office of Foreign Assets Control
of the United States Treasury Department, or (vii) violated or is in violation of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, the Bank Secrecy Act, the USA PATRIOT ACT of 2001, the money laundering Laws of any jurisdiction, and
any related or similar rules, regulations or guidelines, issued, administered or enforced by any Regulatory Authority (collectively,
the “Money Laundering Laws”) and no action, suit or proceeding by or before any Regulatory Authority or any
arbitrator involving any Triumph Entity with respect to the Money Laundering Laws is pending or, to the Knowledge of Triumph,
threatened. Each Triumph Entity has been conducting operations at all times in compliance with applicable financial recordkeeping
and reporting requirements of all Money Laundering Laws administered and each Triumph Entity has established and maintained a
system of internal controls designed to ensure compliance by the Triumph Entities with applicable financial recordkeeping and
reporting requirements of the Money Laundering Laws.
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4.17
|
Community
Reinvestment Act Performance.
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Triumph
Bank is an “insured depository institution” as defined in the FDIA and applicable regulations thereunder and has received
a Community Reinvestment Act of 1977 rating of “satisfactory” or better in its most recently completed performance
evaluation, and Triumph has no Knowledge of the existence of any fact or circumstance or set of facts or circumstances which could
reasonably be expected to result in Triumph Bank having its current rating lowered such that it is no longer “satisfactory”
or better.
(a)
No Triumph Entity is the subject of any pending or, to the Knowledge of Triumph, threatened Litigation asserting that it
or any other Triumph Entity has committed an unfair labor practice (within the meaning of the National Labor Relations Act or
comparable state Law) or other violation of state or federal labor Law or seeking to compel it or any other Triumph Entity to
bargain with any labor organization or other employee representative as to wages or conditions of employment. No Triumph Entity,
predecessor, or Affiliate of a Triumph Entity is or has ever been a party to any collective bargaining agreement or subject to
any bargaining order, injunction or other Order relating to any Triumph Entity’s relationship or dealings with its employees,
any labor organization or any other employee representative, and no Triumph Entity is currently negotiating any collective bargaining
agreement. There is no strike, slowdown, lockout or other job action or labor dispute involving any Triumph Entity pending or,
to the Knowledge of Triumph, threatened and there have been no such actions or disputes since December 31, 2016. To the Knowledge
of Triumph, since December 31, 2016, there has not been any attempt by any Triumph Entity employees or any labor organization
or other employee representative to organize or certify a collective bargaining unit or to engage in any other union organization
activity with respect to the workforce of any Triumph Entity. The employment of each employee of each Triumph Entity is terminable
at will by the relevant Triumph Entity without any penalty, liability or severance obligation incurred by any Triumph Entity.
(b)
Section 4.18(b) of Triumph’s Disclosure Memorandum separately sets forth all of Triumph’s employees, including
for each such employee: name, job title, hire date, full- or part-time status, status as a regular, temporary or contract employee,
Fair Labor Standards Act designation, work location (identified by street address), current compensation paid or payable, all
wage arrangements, fringe benefits (other than employee benefits applicable to all employees, which benefits are set forth on
Section 4.19(a) of Triumph’s Disclosure Memorandum), bonuses, incentives, or commissions paid the past three years, and
visa and permanent resident card or “Green Card” application status. To Triumph’s Knowledge, no employee of
any Triumph Entity is a party to, or is otherwise bound by, any agreement or arrangement, including any confidentiality or non-competition
agreement, that in any way adversely affects or restricts the performance of such employee’s duties. Each current and former
employee of the Triumph Entities who has contributed to the creation or development of any Intellectual Property owned by any
Triumph Entity has executed a nondisclosure and assignment-of-rights agreement for the benefit of the Triumph Entities vesting
all rights in work product created by the employee during the employee’s employment or affiliation with the Triumph Entities.
No Key Employee of any Triumph Entity has provided written notice to a Triumph Entity of his or her intent to terminate his or
her employment with the applicable Triumph Entity as of the date hereof, and, as of the date hereof, to Triumph’s Knowledge,
no Key Employee intends to terminate his or her employment with Triumph before Closing. The Triumph Entities have properly classified
all employees for purposes of eligibility for overtime pursuant to the Fair Labor Standards Act and any other applicable Law.
(c)
Section 4.18(c) of Triumph’s Disclosure Memorandum contains a complete and accurate listing of the name (if an entity,
including the name of the individuals employed by or providing service on behalf of such entity) and contact information of each
individual who has provided personal services to any Triumph Entity as an independent contractor, consultant, freelancer or other
similar service provider (collectively, “Independent Contractors”) during the prior two years and which have
been paid over $30,000 in any 12-month period. A copy of each Contract relating to the services provided by any such Independent
Contractor to a Triumph Entity has been made available to Simmons prior to the date hereof. Each Independent Contractor ever retained
by the Triumph Entities who has contributed to the creation or development of any Intellectual Property owned by any Triumph Entity
has executed a nondisclosure and assignment-of-rights agreement for the benefit of the Triumph Entities and the Triumph Entities
are the owner of all rights in and to all Intellectual Property created by each Independent Contractor in performing services
for the Triumph Entities vesting all rights in work product created in the Triumph Entities. The Triumph Entities have no obligation
or liability with respect to any Taxes (or the withholding thereof) in connection with any Independent Contractor. The Triumph
Entities have properly
classified, pursuant to the Internal Revenue Code, and any other applicable Law, and under Triumph Benefit
Plans, all Independent Contractors used by the Triumph Entities, or other individuals who provided services as non-employees to
any Triumph Entity, at any point. The engagement of each Independent Contractor of each Triumph Entity is terminable at will by
the relevant Triumph Entity without any penalty, liability or severance obligation incurred by any Triumph Entity.
(d)
The Triumph Entities have no “leased employees” within the meaning of Internal Revenue Code Section 414(n).
(e)
The Triumph Entities have, or will have no later than the Closing Date, paid all accrued salaries, bonuses, commissions,
and other wages due to be paid through the Closing Date. Each of the Triumph Entities is and at all times has been in material
compliance with all Law governing the employment of labor and the withholding of Taxes, including all contractual commitments
and all such Laws relating to wages, hours, affirmative action, collective bargaining, discrimination, civil rights, disability
accommodation, employee leave, unemployment, worker classification, immigration, safety and health, workers’ compensation
and the collection and payment of withholding or Social Security Taxes and similar Taxes.
(f)
There have not been any wage and hour claims, discrimination, disability accommodation, or other employment claims or charges
by any current, former or prospective employee of any Triumph Entity since December 31, 2016, nor, to Triumph’s Knowledge,
are there any such claims or charges currently threatened by any current, former or prospective employee of any Triumph Entity.
To the Knowledge of Triumph, there are no governmental investigations open with or under consideration by the United States Department
of Labor (“DOL”), Equal Employment Opportunity Commission, or any other federal or state governmental body
charged with administering or enforcing employment related Laws.
(g)
All of the Triumph Entities’ employees are employed in the United States and are either United States citizens or
are legally entitled to work in the United States under the Immigration Reform and Control Act of 1986, as amended, other United
States immigration Laws and the Laws related to the employment of non-United States citizens applicable in the state in which
the employees are employed. The Triumph Entities have completed a Form I-9 (Employment Eligibility Verification) for each employee,
and each such Form I-9 has since been updated as required by applicable Law and is correct and complete in all material respects.
(h)
Since December 31, 2016, none of the Triumph Entities has implemented any plant closing or mass layoff, as defined under
the WARN Act, without providing notice in accordance with the WARN Act, and no such actions are currently contemplated, planned
or announced.
(i)
The Triumph Entities have (i) implemented, to the extent required, policies and procedures to enable social distancing
and remote working environments for employees of the Triumph Entities, (ii) taken commercially reasonable steps to ensure regular
disinfection and cleaning of work areas, including offices, restrooms, common areas and all high-touch surfaces in the workplace,
and (iii) required all employees who report experiencing symptoms of COVID-19 (including cough, shortness of breath or fever)
to either stay home or to go home immediately, as applicable. The Triumph Entities have complied in all material respects with
all applicable Laws related to the Pandemic, including “shelter in place,” “essential business” and similar
Pandemic Measures and applicable Laws concerning employee leaves of absence. Section 4.18(i) of Triumph’s Disclosure Memorandum
lists all of the following for the Triumph Entities since March 1, 2020, or otherwise in response to or in connection with the
Pandemic or business circumstances related thereto: (i) employee furloughs; (ii) reductions in employee salary, other compensation,
benefits or hours; (iii) employee lay-offs or terminations; or (iv) other material changes in employee policies, practices or
terms and conditions.
(j)
Since December 31, 2016, to the Knowledge of Triumph, no allegations of sexual or other misconduct, harassment or discrimination
have been made against any employee of any Triumph Entity. No Triumph Entity has entered into any settlement agreement related
to allegations of sexual or other misconduct, harassment or discrimination by any employee.
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4.19
|
Employee
Benefit Plans.
|
(a)
Triumph has made available to Simmons prior to the execution of this Agreement, true, complete and correct copies of each
Employee Benefit Plan (including all amendments thereto), that has been adopted, maintained, sponsored in whole or in part by,
or contributed to or required to be contributed to by any Triumph Entity or Triumph ERISA Affiliate for the benefit of employees,
retirees, dependents, spouses, directors, independent contractors, or other beneficiaries or under which employees, retirees,
former employees, dependents, spouses, directors, independent contractors, or other beneficiaries are eligible to participate
or with respect to which Triumph or any Triumph ERISA Affiliate has or may have any obligation or Liability (each, a “Triumph
Benefit Plan”). For the avoidance of doubt, the term “Triumph Benefit Plans” includes plans, programs, policies,
and arrangements sponsored or maintained by a third-party professional employer organization in which the current or former employees,
retirees, dependents, spouses, directors, Independent Contractors, or other beneficiaries of a Triumph Entity or any of its affiliates
are eligible to participate. Section 4.19(a) of Triumph’s Disclosure Memorandum has a complete and accurate list of all
Triumph Benefit Plans. No Triumph Benefit Plan is subject to any Laws other than those of the United States or any state, county,
or municipality in the United States. Triumph has made available to Simmons prior to the execution of this Agreement (i) all trust
agreements or other funding arrangements for all Triumph Benefit Plans, (ii) all determination letters, opinion letters, information
letters or advisory opinions issued by the IRS, the DOL or the Pension Benefit Guaranty Corporation (“PBGC”)
during this calendar year or any of the preceding three calendar years, (iii) annual reports or returns, audited or unaudited
financial statements, actuarial reports and valuations prepared for any Triumph Benefit Plan for the current plan year and the
preceding plan year, (iv) the most recent summary plan descriptions and any material modifications thereto, (v) any correspondence
with the DOL, IRS, PBGC, or any other governmental entity regarding a Triumph Benefit Plan, and (vi) all actuarial valuations
of Triumph Benefit Plans.
(b)
Each Triumph Benefit Plan is and has been maintained in all material respects in compliance with the terms of such Triumph
Benefit Plan, and in compliance with the applicable requirements of the Internal Revenue Code, ERISA, and any other applicable
Laws. No Triumph Benefit Plan is required to be amended within the 90-day period beginning on the Closing Date in order to continue
to comply with ERISA, the Internal Revenue Code, and other applicable Law. Each Triumph Benefit Plan that is intended to be qualified
under Section 401(a) of the Internal Revenue Code is so qualified and has received a favorable determination letter, or for a
prototype plan, opinion letter, from the IRS that is still in effect and applies to the Triumph Benefit Plan and on which such
Triumph Benefit Plan is entitled to rely. Nothing has occurred and no circumstance exists that would be reasonably expected to
adversely affect the qualified status of such Triumph Benefit Plan. Within the past three years, no Triumph Entity has taken any
action to take material corrective action or make a filing under any voluntary correction program of the IRS, DOL or any other
Regulatory Authority with respect to any Triumph Benefit Plan. All assets of each Triumph Benefit Plan that is a retirement plan
consist exclusively of cash and actively traded securities.
(c)
There are no pending, or, to the Knowledge of Triumph, threatened claims or disputes under the terms of, or in connection
with, the Triumph Benefit Plans other than claims for benefits in the Ordinary Course that are not expected to result in material
liability to any Triumph Entity, and no action, proceeding, prosecution, inquiry, hearing or investigation or audit has been commenced
with respect to any Triumph Benefit Plan.
(d)
No Triumph Entity or any Affiliate of Triumph has engaged in any prohibited transaction for which there is not an exemption,
within the meaning of Section 4975 of the Internal Revenue Code or Section 406 of ERISA, with respect to any Triumph Benefit Plan
and no prohibited transaction has occurred with respect
to any Triumph Benefit Plan that would be reasonably expected to result
in any Liability or excise Tax under ERISA or the Internal Revenue Code. No Triumph Entity, Triumph Entity employee, nor any committee
of which any Triumph Entity employee is a member has breached his or her fiduciary duty with respect to a Triumph Benefit Plan
in connection with any acts taken (or failed to be taken) with respect to the administration or investment of the assets of any
Triumph Benefit Plan. To Triumph’s Knowledge, no fiduciary, within the meaning of Section 3(21) of ERISA, who is not a Triumph
Entity or any Triumph Entity employee, has breached his or her fiduciary duty with respect to a Triumph Benefit Plan or otherwise
has any Liability in connection with any acts taken (or failed to be taken) with respect to the administration or investment of
the assets of any Triumph Benefit Plan. The treatment of the awards of Triumph Equity Rights as required under Section 2.3 of
this Agreement is permitted by applicable Law and the terms of the applicable plan and award agreement.
(e)
Neither Triumph nor any Triumph ERISA Affiliate has at any time been a party to or maintained, sponsored, contributed to
or has been obligated to contribute to, or had any Liability with respect to, or would reasonably be expected to have any such
obligation to contribute to or Liability with respect to: (i) a plan subject to Title IV of ERISA, Section 302 of ERISA, or Section
412 of the Internal Revenue Code; (ii) a “multiemployer plan” (as defined in ERISA Section 3(37) and 4001(a)(3));
(iii) a “multiple employer plan” (as defined in 29 C.F.R. § 4001.2) or a plan subject to Section 413(c) of the
Internal Revenue Code; (iv) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA or applicable
state law); (v) a self-funded health or welfare benefit plan; or (vi) any voluntary employees’ beneficiary association (within
the meaning of Section 501(c)(9) of the Internal Revenue Code).
(f)
Each Triumph Benefit Plan that is a health or welfare plan has been amended and administered in accordance with the requirements
of the Patient Protection and Affordable Care Act of 2010. No Triumph Entity has any Liability or obligation to provide postretirement
health, medical or life insurance benefits to any Triumph Entity’s employees or former employees, officers, or directors,
or any dependent or beneficiary thereof, except as otherwise required under state or federal benefits continuation Laws and for
which the covered individual pays the full cost of coverage. No Tax under Internal Revenue Code Sections 4980, 4980B through 4980I,
or 5000 has been incurred with respect to any Triumph Benefit Plan and no circumstance exists which could give rise to such Tax.
(g)
All contributions required to be made to any Triumph Benefit Plan by applicable Law or by any plan document or other contractual
undertaking, and all premiums due or payable with respect to insurance policies funding any Triumph Benefit Plan, for any period
through the date hereof, have been timely made or paid in full or, to the extent not required to be made or paid on or before
the date hereof, have been fully reflected on the Books and Records of Triumph. None of the Triumph Benefit Plans are subject
to Title IV of ERISA.
(h)
Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will
(either alone or in conjunction with any other event) result in, cause the vesting, exercisability or delivery of, or increase
in the amount or value of, any payment, right or other benefit to any employee, officer, director or other service provider of
any Triumph Entity, or result in any (a) requirement to fund any benefits or set aside benefits in a trust (including a rabbi
trust), (b) limitation on the right of any Triumph Entity to amend, merge, terminate or receive a reversion of assets from any
Triumph Benefit Plan or related trust, (c) acceleration of the time of payment or vesting of any such payment, right, compensation
or benefit, or (d) entitlement by any recipient of any payment or benefit to receive a “gross up” payment for any
income or other Taxes that might be owed with respect to such payment or benefit. Without limiting the generality of the foregoing,
no amount paid or payable (whether in cash, in property, or in the form of benefits) by the Triumph Entities in connection with
the transactions contemplated hereby (either solely as a result thereof or as a result of such transactions in conjunction with
any other event) will be an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue
Code. Section 4.19(h) of Triumph’s Disclosure Memorandum sets forth accurate and complete data with respect to each individual
who has a contractual right to severance pay or benefits (or increase in severance pay or benefits, including the acceleration
of any payment or vesting) triggered
by a change in control and the amounts potentially payable to each such individual in connection
with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby (either alone or
in conjunction with any other event) or as a result of a termination of employment or service, taking into account any contractual
provisions relating to Section 280G of the Internal Revenue Code.
(a)
None of the Triumph Entities, nor any of their respective Assets, businesses, or operations, is a party to, or is bound
or receives benefits under, any Contract (whether written or oral), (i) that is either material to any Triumph Entity or that
would be required to be filed as an exhibit to a Form 10-K filed by any Triumph Entity with the SEC if the Triumph Entity were
required to file or voluntarily filed such Form 10-K, (ii) that is an employment, severance, termination, consulting, or retirement
Contract, (iii) relating to the borrowing of money by any Triumph Entity or the guarantee by any Triumph Entity of any such obligation
(other than Contracts evidencing deposit liabilities, purchases of federal funds, fully secured repurchase agreements, advances
and loans from the Federal Home Loan Bank, and trade payables, in each case in the Ordinary Course) in excess of $10,000, including
any sale and leaseback transactions, capitalized leases and other similar financing arrangements, (iv) which prohibits or restricts
any Triumph Entity (and/or, following consummation of the transactions contemplated by this Agreement, any Simmons Entity) from
engaging in any business activities in any geographic area, line of business or otherwise in competition with any other Person,
(v) relating to the purchase or sale of any goods or services by a Triumph Entity (other than Contracts entered into in the Ordinary
Course and involving payments under any individual Contract not in excess of $30,000 over its remaining term or involving Loans,
borrowings or guarantees originated or purchased by any Triumph Entity in the Ordinary Course), (vi) which obligates any Triumph
Entity to conduct business with any third party on an exclusive or preferential basis, or requires referrals of business or any
Triumph Entity to make available investment opportunities to any Person on a priority or exclusive basis, (vii) which limits the
payment of dividends by any Triumph Entity, (viii) pursuant to which any Triumph Entity has agreed with any third parties to become
a member of, manage or control a joint venture, partnership, limited liability company or other similar entity, (ix) pursuant
to which any Triumph Entity has agreed with any third party to a change of control transaction such as an acquisition, divestiture
or merger or contains a put, call or similar right involving the purchase or sale of any equity interests or Assets of any Person
and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out”
or other contingent obligations) that are still in effect, (x) which relates to Intellectual Property of Triumph, (xi) between
any Triumph Entity, on the one hand, and (A) any officer or director of any Triumph Entity, or (B) to the Knowledge of Triumph,
any (1) record or beneficial owner of five percent or more of the voting securities of Triumph, (2) Affiliate or family member
of any such officer, director or record or beneficial owner or (3) any other Affiliate of Triumph, on the other hand, except those
of a type available to employees of Triumph generally, (xii) that provides for payments to be made by any Triumph Entity upon
a change in control thereof, (xiii) that may not be canceled by Simmons, Triumph or any of their respective Subsidiaries (A) at
their convenience (subject to no more than 90 days’ prior written notice), or (B) without payment of a penalty or termination
fee equal to or greater than $25,000 (assuming such Contract was terminated on the Closing Date), (xiv) containing any standstill
or similar agreement pursuant to which Triumph has agreed not to acquire Assets or equity interests of another Person, (xv) that
provides for indemnification by any Triumph Entity of any Person, except for non-material Contracts entered into in the Ordinary
Course, (xvi) with or to a labor union or guild (including any collective bargaining agreement), (xvii) that grants any “most
favored nation” right, right of first refusal, right of first offer or similar right with respect to any material Assets,
or rights of any Triumph Entity, taken as a whole, (xviii) that would be terminable other than by a Triumph Entity or under which
a material payment obligation would arise or be accelerated, in each case as a result of the Merger or the announcement or consummation
of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional acts or events), (xix)
any other Contract or amendment thereto that is material to any Triumph Entity or their respective business or Assets and not
otherwise entered into in the Ordinary Course, (xx) any Triumph Benefit Plans, pursuant to which any of the benefits thereunder
will be increased, or the vesting of the benefits will be accelerated, by the occurrence of the execution or delivery of this
Agreement, the obtainment of the Triumph Shareholder Approval or the consummation of any of the transactions contemplated by this
Agreement, or the value of any of benefits under which will be calculated on the basis of any of the transactions contemplated
by this Agreement, (xxi) that is a settlement, consent or similar Contract and contains any material continuing obligations of
any Triumph Entity, or (xxii) that is a consulting Contract or data processing, software programming or licensing Contract involving
the payment of more than $20,000 per annum (other than any such contracts which are terminable by any Triumph Entity on 30 days
or less notice without any required payment or other conditions, other than the condition of notice). Each Contract of the type
described in this Section 4.20(a), whether or not set forth in Triumph’s Disclosure Memorandum together with all Contracts
referred to in Sections 4.13 and 4.19(a), are referred to herein as the “Triumph Contracts.”
(b)
With respect to each Triumph Contract: (i) the Triumph Contract is legal, valid and binding on a Triumph Entity and is
in full force and effect and is enforceable in accordance with its terms; (ii) no Triumph Entity is in Default thereunder; (iii)
no Triumph Entity has repudiated or waived any material provision of any such Triumph Contract; (iv) no other party to any such
Triumph Contract is, to the Knowledge of Triumph, in Default or has repudiated or waived any material provision thereunder; and
(v) there is not pending or, to the Knowledge of Triumph, threatened cancellations of any Triumph Contract.
(c)
Triumph has made available true, complete and correct copies of each Triumph Contract in effect as of the date hereof.
All of the indebtedness of any Triumph Entity for money borrowed is prepayable at any time by such Triumph Entity without penalty
or premium.
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4.21
|
Agreements
with Regulatory Authorities.
|
Subject
to Section 10.15, no Triumph Entity is subject to any cease-and-desist or other Order or enforcement action issued by, or is a
party to any Contract with, or is a party to any commitment letter, safety and soundness compliance plan, or similar undertaking
to, or is subject to any Order or directive by, or has been ordered to pay any civil money penalty by, or has been a recipient
of any supervisory letter from, or has adopted any policies, procedures or board resolutions at the request or suggestion of any
Regulatory Authority that currently restricts in any material respect the conduct of its business or that in any material manner
relates to its capital adequacy, its ability to pay dividends, its credit or risk management policies, its management, its business,
or Triumph Bank’s acceptance of brokered deposits (each, whether or not set forth in Triumph’s Disclosure Memorandum,
a “Triumph Regulatory Agreement”), nor has any Triumph Entity been advised in writing or, to Triumph’s
Knowledge, orally, since December 31, 2016, by any Regulatory Authority that Triumph Bank is in troubled condition or that the
Regulatory Authority is considering issuing, initiating, ordering, or requesting any such Triumph Regulatory Agreement.
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4.22
|
Investment
Securities.
|
(a)
Each Triumph Entity has good title in all material respects to all securities and commodities owned by it (except those
sold under repurchase agreements, pledged to secure deposits of public funds, borrowings of federal funds or borrowings from the
Federal Reserve Banks or Federal Home Loan Banks or held in any fiduciary or agency capacity), free and clear of any Lien, except
to the extent such securities or commodities are pledged in the Ordinary Course and in accordance with prudent banking practices
to secure obligations of a Triumph Entity. Such securities are valued on the books of Triumph in accordance with GAAP in all material
respects.
(b)
Each Triumph Entity employs, to the extent applicable, investment, securities, risk management and other policies, practices
and procedures that Triumph believes are prudent and reasonable in the context of their respective businesses, and each Triumph
Entity has, since December 31, 2016, been in compliance with such policies, practices and procedures in all material respects.
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4.23
|
Derivative
Instruments and Transactions.
|
All
Derivative Transactions whether entered into for the account of any Triumph Entity or for the account of a customer of any Triumph
Entity (a) were entered into in the Ordinary Course and in accordance with prudent banking practice and in all material respects
with all applicable rules, regulations and policies of all applicable Regulatory Authorities, (b) are legal, valid and binding
obligations of the Triumph Entity party thereto and, to the Knowledge of Triumph, each of the counterparties thereto, and (c)
are in full force and effect and enforceable in accordance with their terms. The Triumph Entities and, to the Knowledge of Triumph,
the counterparties to all such Derivative Transactions, have duly performed, in all material respects, their obligations thereunder
to the extent that such obligations to perform have accrued. To the Knowledge of Triumph, there are no material breaches, violations
or Defaults or allegations or assertions of such by any party pursuant to any such Derivative Transactions. The financial position
of the Triumph Entities on a consolidated basis under or with respect to each such Derivative Transaction has been reflected in
the Books and Records of the Triumph Entities in accordance with GAAP.
(a)
There is no Litigation instituted or pending, or, to the Knowledge of Triumph, threatened, against any Triumph Entity or
against any current or former director, officer or employee of a Triumph Entity in their capacities as such or against any Employee
Benefit Plan of any Triumph Entity, or against any Asset, interest, or right of any of them, nor are there any Orders outstanding
against any Triumph Entity or the Assets of any Triumph Entity, in each case, that has had or would reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect on any Triumph Entity.
(b)
There is no Litigation as of the date of this Agreement to which any Triumph Entity is a party. There is no Order imposed
upon any Triumph Entity (or that, upon consummation of the Merger, would apply to any Triumph Entity).
|
4.25
|
Statements
True and Correct.
|
(a)
None of the information supplied or to be supplied by any Triumph Entity or any Affiliate thereof for inclusion (including
by incorporation by reference) in the Registration Statement to be filed by Simmons with the SEC will, when supplied or when the
Registration Statement becomes effective (or when incorporated by reference), be false or misleading with respect to any material
fact, or omit to state any material fact necessary to make the statements therein not misleading. The portions of the Registration
Statement and the Proxy Statement/Prospectus relating to the Triumph Entities and other portions within the reasonable control
of the Triumph Entities will comply as to form in all material respects with the requirements of the Exchange Act and the rules
and regulations thereunder at the time the Registration Statement becomes effective and at the time the Proxy Statement/Prospectus
is filed with the SEC and first mailed.
(b)
None of the information supplied or to be supplied by any Triumph Entity or any Affiliate thereof for inclusion (including
by incorporation by reference) in the Proxy Statement/Prospectus, and any other documents to be filed by a Triumph Entity or any
Affiliate thereof with any Regulatory Authority in connection with the transactions contemplated hereby, will, at the respective
time such information is supplied and such documents are filed (or when incorporated by reference), and with respect to the Proxy
Statement/Prospectus, when first mailed to the shareholders of Triumph, be false or misleading with respect to any material fact,
or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were
made, not misleading, or, in the case of the Proxy Statement/Prospectus or any amendment thereof or supplement thereto, at the
time of Triumph’s Shareholders’ Meeting, be false or misleading with respect to any material fact, or omit to state
any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of any proxy
for Triumph’s Shareholders’ Meeting.
|
4.26
|
State
Takeover Statutes and Takeover Provisions.
|
Triumph
has taken all action required to be taken by it in order to exempt this Agreement and the transactions contemplated hereby from,
and this Agreement and the transactions contemplated hereby are exempt from, the requirements of any “moratorium,”
“fair price,” “affiliate transaction,” “business combination,” “control share acquisition”
or similar provision of any state anti-takeover Law (collectively, “Takeover Statutes”). No Triumph Entity
is the beneficial owner (directly or indirectly) of more than 10% of the outstanding capital stock of Simmons entitled to vote
in the election of Simmons’s directors.
|
4.27
|
Opinion
of Financial Advisor.
|
Triumph
has received the opinion of Southard Financial, LLC, which, has been initially rendered verbally and will be confirmed by a written
opinion, dated the date of this Agreement (and received by Triumph prior to June 30, 2021), to the effect that, as of the date
of this Agreement, and subject to the various assumptions, procedures, matters, qualifications and limitations on the scope of
review undertaken by Southard Financial, LLC, as set forth therein, the consideration to be paid to the Holders of Triumph Common
Stock in the Merger is fair, from a financial point of view, to such Holders. Such opinion has not been amended or rescinded.
|
4.28
|
Tax
and Regulatory Matters.
|
No
Triumph Entity or, to the Knowledge of Triumph, any Affiliate thereof has taken or agreed to take any action, and Triumph does
not have any Knowledge of any agreement, plan or other circumstance, that is reasonably likely to (a) prevent the Merger from
qualifying as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code or (b) materially
impede or delay receipt of any of the Requisite Regulatory Approvals.
(a)
No Triumph Entity is a party to any written or oral Loan in which any Triumph Entity is a creditor which as of March 31,
2021, had an outstanding balance of $25,000 or more and under the terms of which the obligor was, as of March 31, 2021, over 90
days or more delinquent in payment of principal or interest. Except as such disclosure may be limited by any applicable Law, Section
4.29(a) of Triumph’s Disclosure Memorandum sets forth a true, complete and correct list of all of the Loans of the Triumph
Entities that, as of March 31, 2021, had an outstanding balance of $25,000 or more and were (i) on a non-accrual status, (ii)
classified by the Triumph Entity as “Other Loans Specially Mentioned,” “Special Mention,” “Substandard,”
“Doubtful,” “Loss,” “Classified,” “Criticized,” “Credit Risk Assets,”
“Concerned Loans,” “Watch List” or words of similar import, or (iii) subject to a deferral or payment
modification (including the date on which such Loans are to return to the contractual payment schedule in place prior to the deferral
or payment modification), in any case (i), (ii) or (iii), together with the principal amount of and accrued and unpaid interest
on each such Loan and the aggregate principal amount of and accrued and unpaid interest on such Loans as of March 31, 2021.
(b)
Each Loan currently outstanding (i) is evidenced by notes, agreements or other evidences of indebtedness that are true,
genuine and what they purport to be, (ii) to the extent secured, has been secured by valid Liens which have been perfected, and
(iii) is a legal, valid and binding obligation of the obligor named therein, enforceable in accordance with its terms (except
as may be limited by the Bankruptcy and Equity Exceptions). The notes or other credit or security documents with respect to each
such outstanding Loan were in compliance in all material respects with all applicable Laws at the time of origination or purchase
by a Triumph Entity and are complete and correct in all material respects.
(c)
Each outstanding Loan (including Loans held for resale to investors) was solicited and originated, and is and has been
administered and, where applicable, serviced, and the relevant Loan files are being
maintained, in all material respects, in accordance
with the relevant notes or other credit or security documents, the Triumph Entity’s written underwriting standards (and,
in the case of Loans held for resale to investors, the underwriting standards, if any, of the applicable investors) and with all
applicable requirements of Laws.
(d)
None of the Contracts pursuant to which any Triumph Entity has sold Loans or pools of Loans or participations in Loans
or pools of Loans contains any obligation to repurchase such Loans or interests therein solely on account of a payment default
by the obligor on any such Loan. Each Loan included in a pool of Loans originated, securitized or acquired by any Triumph Entity
(a “Pool”) meets all eligibility requirements (including all applicable requirements for obtaining mortgage
insurance certificates and Loan guaranty certificates) for inclusion in such Pool. All such Pools have been finally certified
or, if required, recertified in accordance with all applicable Laws, rules and regulations, except where the time for certification
or recertification has not yet expired. No Pools have been improperly certified, and, except as would not be material to Triumph
and the Triumph Subsidiaries, no Loan has been bought out of a Pool without all required approvals of the applicable investors.
(e)
(i) Section 4.29(e) of Triumph’s Disclosure Memorandum sets forth a list of all Loans as of the date hereof by a
Triumph Entity to any directors, executive officers and principal shareholders (as such terms are defined in Regulation O of the
Federal Reserve (12 C.F.R. Part 215) (“Regulation O”)) of any Triumph Entity, (ii) there are no employee, officer,
director, principal shareholder or other affiliate Loans on which the borrower is paying a rate other than that reflected in the
note or other relevant credit or security agreement or on which the borrower is paying a rate which was not in compliance with
Regulation O, and (iii) all such Loans are and were originated in compliance in all material respects with all applicable Laws.
(f)
Subject to Section 10.15, no Triumph Entity is now nor has it ever been since December 31, 2016, subject to any material
fine, suspension, settlement or other Contract or other administrative agreement or sanction by, or any reduction in any loan
purchase commitment from, any Regulatory Authority relating to the origination, sale or servicing of mortgage or consumer Loans.
All
of the deposits held by Triumph Bank (including the records and documentation pertaining to such deposits) have been established
and are held in compliance with (a) all applicable policies, practices and procedures of Triumph Bank and (b) all applicable Laws,
including Money Laundering Laws and anti-terrorism or embargoed persons requirements. All of the deposits held by Triumph Bank
are insured to the maximum limit set by the FDIC, and the FDIC premium and all assessments have been fully paid, and no proceedings
for the termination or revocation of such insurance are pending, or, to the Knowledge of Triumph, threatened.
|
4.31
|
Allowance
for Loan and Lease Losses.
|
The
allowance for loan and lease losses (“ALLL”) reflected in the Triumph Financial Statements was, as of the date
of each of the Triumph Financial Statements, in compliance with Triumph’s existing methodology for determining the adequacy
of the ALLL and in compliance in all material respects with the standards established by the applicable Regulatory Authority,
the Financial Accounting Standards Board and GAAP, and is adequate.
Triumph
Entities are insured with reputable insurers against such risks and in such amounts as the management of Triumph reasonably has
determined to be prudent and consistent with industry practice. Section 4.32 of Triumph’s Disclosure Memorandum contains
a true, complete and correct list and a brief description (including the name of the insurer, agent, coverage and the expiration
date) of all insurance policies in force on the date hereof with respect to the business and Assets of the Triumph Entities, correct
and complete copies of
which policies have been provided to Simmons prior to the date hereof. The Triumph Entities are in material
compliance with their insurance policies and are not in Default under any of the material terms thereof. Each such policy is outstanding
and in full force and effect and, except for policies insuring against potential liabilities of officers, directors and employees
of the Triumph Entities, Triumph or Triumph Bank is the sole beneficiary of such policies. All premiums and other payments due
under any such policy have been paid, and all claims thereunder have been filed in due and timely fashion. To Triumph’s
Knowledge, no Triumph Entity has received any written notice of cancellation or non-renewal of any such policies, nor, to Triumph’s
Knowledge, is the termination of any such policies threatened.
No
Triumph Entity nor any director or officer or, to the Knowledge of Triumph, any Representative or other Person acting on behalf
of any Triumph Entity has (a) engaged in any services (including financial services), transfers of goods, software, or technology,
or any other business activity related to (i) Cuba, Iran, North Korea, Sudan, Syria or the Crimea region of Ukraine claimed by
Russia (“Sanctioned Countries”), (ii) the government of any Sanctioned Country, (iii) any person, entity or
organization located in, resident in, formed under the laws of, or owned or controlled by the government of, any Sanctioned Country,
or (iv) any Person made subject of any sanctions administered or enforced by the United States Government, including, without
limitation, the list of Specially Designated Nationals of the U.S. Department of the Treasury’s Office of Foreign Assets
Control, or by the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions
authority (collectively, “Sanctions”), (b) engaged in any transfers of goods, technologies or services (including
financial services) that may assist the governments of Sanctioned Countries or facilitate money laundering or other activities
proscribed by United States Law, (c) is a Person currently the subject of any Sanctions or (d) is located, organized or resident
in any Sanctioned Country.
|
4.34
|
Brokers
and Finders.
|
Except
for Southard Financial, LLC, neither Triumph nor any of its officers, directors, employees, or Affiliates has employed any broker
or finder or incurred any Liability for any financial advisory fees, investment bankers’ fees, brokerage fees, commissions,
or finders’ fees in connection with this Agreement or the transactions contemplated hereby.
|
4.35
|
Transactions
with Affiliates and Insiders.
|
There
are no Contracts, plans, arrangements or other transactions, including extensions of credit, between any Triumph Entity, on the
one hand, and (a) any officer, director or record or beneficial owner of five percent or more of the voting securities of any
Triumph Entity, (b) to Triumph’s Knowledge, any (i) record or beneficial owner of five percent or more of the voting securities
of Triumph or (ii) Affiliate or family member of any such officer, director or record or beneficial owner, or (c) any other Affiliate
of Triumph, on the other hand, except those, in each case, of a type available to employees of Triumph generally and, in the case
of Triumph Bank, that are in compliance with Regulation O and Regulation W.
|
4.36
|
No
Investment Adviser Subsidiary.
|
No
Triumph Entity provides investment management, investment advisory or sub-advisory services to any Person (including management
and advice provided to separate accounts and participation in wrap fee programs) and is required to register with the SEC as an
investment adviser under the Investment Advisers Act of 1940, as amended.
|
4.37
|
No
Broker-Dealer Subsidiary.
|
No
Triumph Entity is a broker-dealer required to be registered under the Exchange Act with the SEC.
|
4.38
|
No
Insurance Subsidiary.
|
No
Triumph Entity conducts insurance operations that require a license from any national, state or local governmental authority or
Regulatory Authority under any applicable Law.
ARTICLE
5
REPRESENTATIONS AND WARRANTIES OF SIMMONS
Except
as Previously Disclosed, Simmons hereby represents and warrants to Triumph as follows:
No
representation or warranty of Simmons contained in ARTICLE 5 shall be deemed untrue or incorrect, and Simmons shall not be deemed
to have breached a representation or warranty, in each case for all purposes hereunder, including the condition set forth in Section
8.3(a), as a consequence or result of the existence or absence of any fact, circumstance, change or event unless such fact, circumstance,
change or event, individually or taken together with all other facts, circumstances, changes or events inconsistent with any representation
or warranty contained in ARTICLE 5 has had or would reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect on Simmons.
|
5.2
|
Organization,
Standing, and Power.
|
(a)
Status of Simmons. Simmons is a corporation duly organized, validly existing and in good standing under the Laws
of the State of Arkansas, is authorized under the Laws of the State of Arkansas to engage in its business as currently conducted
and otherwise has the corporate power and authority to own, lease and operate all of its material Assets and to conduct its business
in the manner in which its business is now being conducted. Simmons is duly qualified or licensed to transact business as a foreign
corporation in good standing in the states of the United States and foreign jurisdictions in which its ownership of Assets or
conduct of business requires such qualification or licensure, except where failure to be so qualified or licensed has not had
or would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on Simmons. Simmons
is a bank holding company duly registered with the Federal Reserve under the BHC Act and has elected to be, and qualifies as,
a financial holding company under the BHC Act.
(b)
Status of Simmons Bank. Simmons Bank is a direct, wholly owned Subsidiary of Simmons, is duly organized, validly
existing and in good standing under the Laws of the State of Arkansas, is authorized under the Laws of the State of Arkansas to
engage in its business as currently conducted and otherwise has the corporate power and authority to own, lease and operate all
of its material Assets and to conduct its business in the manner in which its business is now being conducted. Simmons Bank is
authorized by the Arkansas State Bank Department (“SBD”) to engage in the business of banking as a commercial
bank. Simmons Bank is in good standing in each jurisdiction in which its ownership of Assets or conduct of business requires such
qualification, except where failure to be so qualified has not had or would not reasonably be expected to have, either individually
or in the aggregate, a Material Adverse Effect on Simmons Bank.
|
5.3
|
Authority;
No Breach by Agreement.
|
(a)
Authority. Simmons has the corporate power and authority necessary to execute, deliver, and perform its obligations
under this Agreement and to consummate the transactions contemplated hereby. The
execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated herein, including the Merger, have been duly and validly authorized
and approved by all necessary corporate action in respect thereof on the part of Simmons (including, approval by, and a determination
by the board of directors of Simmons that this Agreement is advisable and in the best interests of Simmons’s shareholders).
This Agreement has been duly executed and delivered by Simmons. Subject to the Triumph Shareholder Approval, and assuming the
due authorization, execution and delivery by Triumph, this Agreement represents a legal, valid, and binding obligation of Simmons,
enforceable against Simmons in accordance with its terms (except as may be limited by the Bankruptcy and Equity Exceptions).
(b)
No Conflicts. Neither the execution and delivery of this Agreement by Simmons, nor the consummation by Simmons of
the transactions contemplated hereby, nor compliance by Simmons with any of the provisions hereof, will (i) conflict with or result
in a breach of any provision of Simmons’s articles of incorporation, bylaws or other governing instruments, or any resolution
adopted by the board of directors or the shareholders of any Simmons Entity, or (ii) subject to receipt of the Requisite Regulatory
Approvals, (x) violate any Law applicable to any Simmons Entity or any of their respective Assets or (y) violate, conflict with,
constitute or result in a Default under or the loss of any benefit under, or result in the creation of any Lien upon any of the
respective Assets of any Simmons Entity under any of the terms, conditions or provisions of any Contract or Permit of any Simmons
Entity or under which any of their respective Assets may be bound, except in the case of clause (y) above where such violations,
conflicts or Defaults have not had or would not reasonably be expected to have, either individually or in the aggregate, a Material
Adverse Effect on Simmons.
(c)
Consents. Other than in connection or compliance with the provisions of the Securities Laws (including the filing
and declaration of effectiveness of the Registration Statement), applicable state corporate and securities Laws, the rules of
Nasdaq, the TBCA, the ABCA, the FDIA, the Laws of the States of Arkansas and Tennessee, the BHC Act, and the Requisite Regulatory
Approvals, no notice to, filing with, or Consent of, any Regulatory Authority or any third party is necessary for the consummation
by Simmons of the Merger and the other transactions contemplated by this Agreement.
|
5.4
|
Capitalization
of Simmons.
|
(a)
Ownership. The authorized capital stock of Simmons consists of (i) 175,000,000 shares of Simmons Common Stock, of
which 108,360,636 shares are issued and outstanding as of June 2, 2021, and (ii) 40,040,000 shares of preferred stock, par value
$0.01 per share of Simmons, of which 767 shares are issued and outstanding as of June 2, 2021. As of June 2, 2021, no more than
7,000,000 shares of Simmons Common Stock are subject to Simmons Stock Options or other Equity Rights in respect of Simmons Common
Stock, and no more than 7,000,000 shares of Simmons Common Stock were reserved for future grants under the Simmons Stock Plans.
Upon any issuance of any shares of Simmons Common Stock in accordance with the terms of the Simmons Stock Plans, such shares will
be duly and validly issued and fully paid and nonassessable.
(b)
Other Rights or Obligations. All of the issued and outstanding shares of capital stock (and other equity interest)
of Simmons are, and all shares of Simmons Common Stock to be issued in exchange for shares of Triumph Common Stock upon consummation
of the Merger, when issued in accordance with the terms of this Agreement, will be, duly authorized and validly issued and outstanding,
and are fully paid and nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof.
None of the outstanding shares of capital stock (or other equity interest) of Simmons has been issued in violation of or subject
to any preemptive rights or other rights to subscribe for or purchase securities of the current or past shareholders of Simmons.
(c)
Outstanding Equity Rights. Other than the Simmons Stock Options and the Simmons Restricted Stock Awards, in each
case, outstanding as of the date of this Agreement, there are no existing Equity Rights with respect to the securities of Simmons
or Simmons Bank as of the date of this Agreement.
|
5.5
|
Simmons
Subsidiaries.
|
Simmons
or a Simmons Subsidiary owns all of the issued and outstanding shares of capital stock (and other equity interests) of the Simmons
Subsidiaries. The deposits in Simmons Bank are insured to the maximum limit set by the FDIC, and the FDIC premium and all assessments
have been fully paid. No proceedings for the revocation or termination of such deposit insurance are pending or, to the Knowledge
of Simmons, threatened.
(a)
Simmons’s Reports. Simmons has filed on a timely basis, all forms, filings, registrations, submissions, statements,
certifications, returns, information, data, reports and documents required to be filed or furnished by it with any Regulatory
Authority, and such reports were complete and accurate in all material respects and in compliance in all material respects with
the requirements of any applicable Law and the requirements of the applicable Regulatory Authority, since December 31, 2016.
(b)
Simmons’s SEC Reports. An accurate and complete copy of each final registration statement, prospectus, report,
schedule and definitive proxy statement filed with or furnished to the SEC by any Simmons Entity pursuant to the Securities Act
or the Exchange Act, as the case may be, since December 31, 2016 (the “Simmons SEC Reports”) is publicly available.
No such Simmons SEC Report, at the time filed, furnished or communicated (and, in the case of registration statements, prospectuses
and proxy statements, on the dates of effectiveness, dates of first sale of securities and the dates of the relevant meetings,
respectively), contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading, except
that information filed or furnished as of a later date (but before the date of this Agreement) shall be deemed to modify information
as of an earlier date. As of their respective dates, all Simmons SEC Reports filed or furnished under the Securities Act and the
Exchange Act complied as to form in all material respects with the published rules and regulations of the SEC with respect thereto.
As of the date of this Agreement, no executive officer of Simmons has failed in any respect to make the certifications required
of him or her under Section 302 or 906 of the Sarbanes-Oxley Act. As of the date of this Agreement, there are no outstanding comments
from or material unresolved issues raised by the SEC with respect to any of the Simmons SEC Reports.
(c)
Simmons Bank’s Reports. Each of Simmons and Simmons Bank has duly filed with SBD, the Federal Reserve, and
any other applicable Regulatory Authority, as the case may be, all reports, forms, returns, filings, information, data, registrations,
submissions, statements, certifications, and documents required to be filed or furnished by each under any applicable Law, including
any and all federal and state banking Laws, and such reports were complete and accurate in all material respects and in compliance
in all material respects with the requirements of any applicable Law. Subject to Section 10.15, there (i) is no unresolved violation,
criticism, or exception by any Regulatory Authority with respect to any report or statement relating to any examinations, inspections
or investigations of any Simmons Entity and (ii) has been no formal or informal inquiries by, or disagreements or disputes with,
any Regulatory Authority with respect to the business, operations, policies or procedures of any Simmons Entity.
(a)
Financial Statements. The Simmons Financial Statements included or incorporated by reference in the Simmons SEC
Reports (i) have been prepared from, and are in accordance with, the Books and Records of the Simmons Entities, (ii) have been
prepared in accordance with GAAP, regulatory accounting principles and applicable accounting requirements and with the published
rules and regulations of the SEC, in each case, consistently applied except as may be otherwise indicated in the notes thereto
and except with respect to the interim financial statements for the omission of footnotes and (iii) fairly present in all material
respects the consolidated financial condition of the Simmons Entities as of the respective dates set forth therein and the
consolidated
results of operations, shareholders’ equity and cash flows of the Simmons Entities for the respective periods set forth
therein, subject in the case of the interim financial statements to year-end adjustments. The consolidated Simmons Financial Statements
to be prepared after the date of this Agreement and prior to the Closing (A) will have been prepared in accordance with GAAP,
regulatory accounting principles and applicable accounting requirements and with the published rules and regulations of the SEC,
in each case, consistently applied except as may be otherwise indicated in the notes thereto and except with respect to unaudited
financial statements for the omission of footnotes, and (B) will fairly present in all material respects the consolidated financial
condition of Simmons as of the respective dates set forth therein and the results of operations, shareholders’ equity and
cash flows of Simmons for the respective periods set forth therein, subject in the case of unaudited financial statements to year-end
adjustments.
(b)
Call Reports. The financial statements contained in the Call Reports of Simmons Bank for the periods ending December
31, 2016 (i) have been prepared in accordance with GAAP and regulatory accounting principles consistently applied, except as may
be otherwise indicated in the notes thereto and except for the omission of footnotes and (ii) fairly present in all material respects
the financial condition of Simmons Bank as of the respective dates set forth therein and the results of operations and shareholders’
equity for the respective periods set forth therein, subject to year-end adjustments. The financial statements contained in the
Call Reports of Simmons Bank to be prepared after the date of this Agreement and prior to the Closing (A) will have been prepared
in accordance with GAAP and regulatory accounting principles consistently applied, except as may be otherwise indicated in the
notes thereto and except for the omission of footnotes, and (B) will fairly present in all material respects the financial condition
of Simmons Bank as of the respective dates set forth therein and the results of operations and shareholders’ equity of Simmons
Bank for the respective periods set forth therein, subject to year-end adjustments.
(c)
Systems and Processes. Each of Simmons and Simmons Bank has in place sufficient systems and processes that are customary
for a financial institution of the size of Simmons and Simmons Bank and that are designed to (i) provide reasonable assurances
regarding the reliability of financial reporting and the preparation of the Simmons Financial Statements and Simmons Bank’s
financial statements, including the Call Report and (ii) in a timely manner accumulate and communicate to Simmons’s and
Simmons Bank’s principal executive officer and principal financial officer the type of information that would be required
to be disclosed in Simmons Financial Statements and Simmons Bank’s financial statements, including the Call Report, or any
forms, filings, registrations, submissions, statements, certifications, returns, information, data, reports or documents required
to be filed or provided to any Regulatory Authority. Neither Simmons nor Simmons Bank nor, to Simmons’s Knowledge, any Representative
of any Simmons Entity has received or otherwise had or obtained Knowledge of any material complaint, allegation, assertion or
claim, whether written or oral, regarding the adequacy of such systems and processes or the accuracy or integrity of Simmons Financial
Statements, the Simmons Bank’s financial statements, including the Call Reports, or the accounting or auditing practices,
procedures, methodologies or methods (including with respect to loan loss reserves, write-downs, charge-offs and accruals) of
any Simmons Entity or their respective internal accounting controls, including any material complaint, allegation, assertion or
claim that any Simmons Entity has engaged in questionable accounting or auditing practices. No attorney representing any Simmons
Entity, whether or not employed by any Simmons Entity, has reported evidence of a material violation of Securities Laws, breach
of fiduciary duty or similar violation by Simmons or any of its officers, directors or employees to the board of directors of
Simmons or Simmons Bank or any committee thereof or to any director or officer of Simmons or Simmons Bank. To Simmons’s
Knowledge, there has been no instance of fraud by any Simmons Entity, whether or not material, that occurred during any period
covered by the Simmons Financial Statements.
|
5.8
|
Absence
of Undisclosed Liabilities.
|
No
Simmons Entity has incurred any Liability, except for Liabilities (a) incurred in the Ordinary Course since December 31, 2020,
(b) incurred in connection with this Agreement and the transactions contemplated
hereby, or (c) that are accrued or reserved against
in the consolidated balance sheet of Simmons as of December 31, 2020 included in the Simmons Financial Statements at and for the
period ending December 31, 2020.
|
5.9
|
Absence
of Certain Changes or Events.
|
Since
December 31, 2020, there has not been a Material Adverse Effect on Simmons.
(a)
All Simmons Entities have timely filed with the appropriate Taxing authorities all material Tax Returns in all jurisdictions
in which such Tax Returns are required to be filed, and such Tax Returns are correct and complete in all material respects. None
of the Simmons Entities is the beneficiary of any extension of time within which to file any Tax Return (other than any extensions
to file Tax Returns obtained in the Ordinary Course and automatically granted). All material Taxes of the Simmons Entities (whether
or not shown on any Tax Return) that are due have been fully and timely paid. There are no Liens for any material amount of Taxes
(other than a Lien for Taxes not yet due and payable) on any of the Assets of any of the Simmons Entities. No claim has been made
in the last six years in writing by an authority in a jurisdiction where any Simmons Entity does not file a Tax Return that such
Simmons Entity may be subject to Taxes by that jurisdiction.
(b)
None of the Simmons Entities has received any written notice of assessment or proposed assessment in connection with any
material amount of Taxes, and there are no threatened in writing or pending disputes, claims, audits or examinations regarding
any Taxes of any Simmons Entity or the Assets of any Simmons Entity. None of the Simmons Entities has waived any statute of limitations
in respect of any Taxes.
(c)
Each Simmons Entity has complied in all material respects with all applicable Laws relating to the withholding of Taxes
and the payment thereof to appropriate authorities, including Taxes required to have been withheld and paid in connection with
amounts paid or owing to any employee or independent contractor, and Taxes required to be withheld and paid pursuant to Sections
1441 and 1442 of the Internal Revenue Code or similar provisions under foreign Law.
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5.11
|
Compliance
with Laws.
|
(a)
Each Simmons Entity has, and since December 31, 2016, has had, in effect all Permits necessary for it to lawfully own,
lease, or operate its material Assets and to carry on its business as now conducted (and have paid all fees and assessments due
and payable in connection therewith), except where neither the cost of failure to hold nor the cost of obtaining and holding such
Permit has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on
Simmons. There has occurred no material Default under any such Permit and to the Knowledge of Simmons no suspension or cancellation
of any such Permit is threatened. None of the Simmons Entities:
|
(i)
|
is
in material Default under any of the provisions of its articles of incorporation or association
or bylaws (or other governing instruments);
|
|
(ii)
|
is
in material Default under any Laws, Orders, or Permits applicable to its business or
employees conducting its business; or
|
|
(iii)
|
subject
to Section 10.15, has since December 31, 2016 received any written notification or communication
from any agency or department of federal, state, or local government or any Regulatory
Authority or the staff thereof asserting that any Simmons Entity is not in compliance
in any material respect with any Laws, Orders, or Permits or engaging in an unsafe or
unsound activity or troubled condition.
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(b)
Each of Simmons and Simmons Bank is in compliance in all material respects with all applicable Laws, regulatory capital
requirements, Orders, or conditions imposed in writing by a Regulatory Authority, to which they or their Assets may be subject.
There
is no Litigation instituted or pending, or, to the Knowledge of Simmons, threatened against any Simmons Entity, or against any
current or former director, officer or employee of a Simmons Entity in their capacities as such or Employee Benefit Plan of any
Simmons Entity, or against any Asset, interest, or right of any of them, nor are there any Orders outstanding against any Simmons
Entity or the Assets of any Simmons Entity, in each case, that has had or would reasonably be expected to have, either individually
or in the aggregate, a Material Adverse Effect on any Simmons Entity.
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5.13
|
Statements
True and Correct.
|
(a)
None of the information supplied or to be supplied by any Simmons Entity or any Affiliate thereof for inclusion (including
by incorporation by reference) in the Registration Statement to be filed by Simmons with the SEC will, when supplied or when the
Registration Statement becomes effective (or when incorporated by reference), be false or misleading with respect to any material
fact, or omit to state any material fact necessary to make the statements therein not misleading. The portions of the Registration
Statement and the Proxy/Prospectus relating to Simmons Entities and other portions within the reasonable control of Simmons Entities
will comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder
at the time the Registration Statement becomes effective and at the time the Proxy Statement/Prospectus is filed with the SEC
and first mailed.
(b)
None of the information supplied or to be supplied by any Simmons Entity or any Affiliate thereof for inclusion (including
by incorporation by reference) in the Proxy Statement/Prospectus to be mailed to Triumph’s shareholders in connection with
Triumph’s Shareholders’ Meeting, and any other documents to be filed by any Simmons Entity or any Affiliate thereof
with the SEC or any other Regulatory Authority in connection with the transactions contemplated hereby, will, at the respective
time such documents are filed (or when incorporated by reference), and with respect to the Proxy Statement/Prospectus, when first
mailed to the shareholders of Triumph, be false or misleading with respect to any material fact, or omit to state any material
fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or, in
the case of the Proxy Statement/Prospectus or any amendment thereof or supplement thereto, at the time of Triumph’s Shareholders’
Meeting, be false or misleading with respect to any material fact, or omit to state any material fact, in light of the circumstances
under which they were made, necessary to correct any statement in any earlier communication with respect to the solicitation of
any proxy for Triumph’s Shareholders’ Meeting.
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5.14
|
Tax
and Regulatory Matters.
|
No
Simmons Entity or, to the Knowledge of Simmons, any Affiliate thereof has taken or agreed to take any action, and Simmons does
not have any Knowledge of any agreement, plan or other circumstance, that is reasonably likely to (a) prevent the Merger from
qualifying as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code or (b) materially
impede or delay receipt of any of the Requisite Regulatory Approvals.
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5.15
|
Brokers
and Finders.
|
Except
for Stephens Inc., neither Simmons nor any of its officers, directors, employees, or Affiliates has employed any broker or finder
or incurred any Liability for any financial advisory fees, investment bankers’ fees, brokerage fees, commissions, or finders’
fees in connection with this Agreement or the transactions contemplated hereby.
ARTICLE
6
CONDUCT OF BUSINESS PENDING CONSUMMATION
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6.1
|
Affirmative
Covenants of Triumph.
|
(a)
From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, unless the
prior written consent of Simmons shall have been obtained (such consent shall not be unreasonably withheld, delayed, or conditioned),
and except as required by Law, as otherwise expressly contemplated herein or as set forth in Section 6.1 of Triumph’s Disclosure
Memorandum, Triumph shall, and shall cause each of the Triumph Subsidiaries to, (i) operate its business only in the Ordinary
Course, and (ii) use its reasonable best efforts to preserve intact its business (including its organization, Assets, goodwill
and insurance coverage) and maintain its rights, authorizations, franchises, advantageous business relationships with customers,
vendors, strategic partners, suppliers, distributors and others doing business with it, and the services of its officers and Key
Employees. Notwithstanding anything to the contrary set forth in this Section 6.1 or Section 6.2, from the date of this Agreement
until the earlier of the Effective Time or the termination of this Agreement, Triumph will use its reasonable best efforts to
provide Simmons with prior written notice of any actions Triumph or any Triumph Subsidiary takes with respect to the Pandemic,
including Pandemic Measures, that differ from or are inconsistent with actions taken by Triumph with respect to the Pandemic prior
to the date of this Agreement.
(b)
Beginning on the date that is two weeks after the date hereof, and every two weeks thereafter, Triumph shall provide, and
shall cause Triumph Bank also to provide, to Simmons a report describing all of the following which has occurred in the prior
two weeks:
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(i)
|
new,
renewed, extended, modified, amended or terminated Contracts that provide for aggregate
annual payments of $10,000 or more; and
|
|
(ii)
|
new
Loans or commitments (including a letter of credit) for Loans in excess of $100,000,
any renewals or extensions of existing Loans or commitments for any Loans in excess of
$100,000, or any material amendments or modifications to Loans in excess of $100,000.
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(c)
Beginning with the month of June 2021, Triumph shall provide, and shall cause Triumph Bank also to provide, to Simmons
a monthly report and attestation, in a form acceptable to Simmons, concerning Triumph’s and Triumph Bank’s asset quality.
Such report and attestation shall reflect information as of the end of the relevant month and shall be provided to Simmons no
later than the tenth day after such month end (for example, the June 2021 report and attestation shall reflect information as
of June 30, 2021, and shall be provided to Simmons no later than July 10, 2021).
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6.2
|
Negative
Covenants of Triumph.
|
From
the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, unless the prior written
consent of Simmons shall have been obtained (such consent shall not be unreasonably withheld, delayed, or conditioned), and except
as otherwise expressly contemplated herein or as set forth in Section 6.2 of Triumph’s Disclosure Memorandum, Triumph covenants
and agrees that it will not do or agree or commit to do, or cause or permit any Triumph Subsidiary to do or agree or commit to
do, any of the following:
(a)
amend the charter, bylaws or other governing instruments of any Triumph Entity;
(b)
incur, assume, guarantee, endorse or otherwise as an accommodation become responsible for any additional debt obligation
or other obligation for borrowed money (other than indebtedness of Triumph to
Triumph Bank or of Triumph Bank to Triumph, or the
creation of deposit liabilities, purchases of federal funds, borrowings from any Federal Home Loan Bank, or sales of certificates
of deposits, in each case incurred in the Ordinary Course);
(c)
(i) repurchase, redeem, or otherwise acquire or exchange, directly or indirectly, any shares, or any securities convertible
into or exchangeable or exercisable for any shares, of the capital stock of any Triumph Entity, or (ii) make, declare, pay or
set aside for payment any dividend or set any record date for or declare or make any other distribution in respect of Triumph’s
capital stock or other equity interests;
(d)
issue, grant, sell, pledge, dispose of, encumber, authorize or propose the issuance of, enter into any Contract to issue,
grant, sell, pledge, dispose of, encumber, or authorize or propose the issuance of, or otherwise permit to become outstanding,
any additional shares of Triumph Common Stock or any other capital stock of any Triumph Entity, or any stock appreciation rights,
or any option, warrant, or other Equity Right (other than issuances of Triumph Common Stock in connection with the exercise of
Triumph Stock Options that were outstanding as of the close of business on June 3, 2021; provided that such issuances of Triumph
Common Stock occur prior to the Determination Date);
(e)
directly or indirectly adjust, split, combine or reclassify any capital stock or other equity interest of any Triumph Entity
or issue or authorize the issuance of any other securities in respect of or in substitution for shares of Triumph Common Stock,
or sell, transfer, lease, mortgage, permit any Lien, or otherwise dispose of, discontinue or otherwise encumber (i) any shares
of capital stock or other equity interests of any Triumph Entity (unless any such shares of capital stock or other equity interest
are sold or otherwise transferred to one of the Triumph Entities) or (ii) any Asset other than pursuant to Contracts in force
at the date of the Agreement or sales of investment securities in the Ordinary Course;
(f)
(i) purchase any securities or make any acquisition of or investment in (except in the Ordinary Course), either by purchase
of stock or other securities or equity interests, contributions to capital, Asset transfers, purchase of any Assets (including
any investments or commitments to invest in real estate or any real estate development project) or other business combination,
or by formation of any joint venture or other business organization or by contributions to capital (other than by way of foreclosures
or acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith,
in each case in the Ordinary Course), any Person other than Triumph Bank, or otherwise acquire direct or indirect control over
any Person or (ii) enter into a plan of consolidation, merger, share exchange, share acquisition, reorganization, recapitalization
or complete or partial liquidation or dissolution (other than consolidations, mergers or reorganizations solely among wholly owned
Triumph Subsidiaries), or a letter of intent, memorandum of understanding or agreement in principle with respect thereto;
(g)
(i) grant any increase in compensation or benefits to the employees or officers of any Triumph Entity, except as required
by Law, (ii) pay any (x) severance or termination pay or (y) any bonus, in either case other than pursuant to a Triumph Benefit
Plan in effect on the date hereof and in the case of clause (x) subject to receipt of an effective release of claims from the
employee, and in the case of clause (y) to the extent required under the terms of the Triumph Benefit Plan without the exercise
of any upward discretion, (iii) enter into, amend, or increase the benefits payable under any severance, change in control, retention,
bonus guarantees, collective bargaining agreement or similar agreement or arrangement with employees or officers of any Triumph
Entity, (iv) grant any increase in fees or other increases in compensation or other benefits to directors of any Triumph Entity,
(v) waive any stock repurchase rights, or grant, accelerate, amend (except to the extent necessary to comply with Section 2.3(c))
or change the period of exercisability of any Equity Rights or restricted stock, or authorize cash payments in exchange for any
Equity Rights, (vi) fund any rabbi trust or similar arrangement, (vii) terminate the employment or services of any officer or
any employee whose annual base compensation is greater than $75,000, other than for cause, (viii) hire any officer, employee,
independent contractor or consultant (who is a natural person) whose annual base compensation is greater than $100,000, or (ix)
implement or announce any employee layoff that would reasonably be expected to implicate the WARN Act;
(h)
enter into, amend or renew any employment or Independent Contractor Contract between any Triumph Entity and any Person
requiring payments thereunder in excess of $25,000 in any 12-month period that the Triumph Entity does not have the unconditional
right to terminate without Liability (other than Liability for services already rendered), at any time on or after the Effective
Time;
(i)
except with respect to a Triumph Benefit Plan that is intended to be tax-qualified in the opinion of counsel is necessary
or advisable to maintain the tax qualified status, (i) adopt or establish any plan, policy, program or arrangement that would
be considered a Triumph Benefit Plan if such plan, policy, program or arrangement were in effect as of the date of this Agreement,
or amend in any material respect any existing Triumph Benefit Plan, terminate or withdraw from, or amend, any Triumph Benefit
Plan, (ii) make any distributions from such Triumph Benefit Plans, except as required by the terms of such plans, or (iii) fund
or in any other way secure the payment of compensation or benefits under any Triumph Benefit Plan;
(j)
except in each case as may be required to conform to changes in Tax Laws, regulatory accounting requirements or GAAP, as
applicable, make any change in any accounting principles, practices or methods or systems of internal accounting controls; or
make or change any material Tax election, Tax accounting method, taxable year or period; file any amended material Tax Return,
stop maintaining withholding certificates in respect of any person required to be maintained under the Internal Revenue Code or
the Treasury Regulations, agree to an extension or waiver of any statute of limitations with respect to the assessment or determination
of Taxes; settle or compromise any Tax liability of any Triumph Entity; enter into any closing agreement with respect to any Tax;
surrender any right to claim a Tax refund; secure a PPP Loan; or claim any other Tax relief or Tax benefit under a COVID-19 Relief
Law;
(k)
commence any Litigation other than in the Ordinary Course, or settle, waive or release or agree or consent to the issuance
of any Order in connection with any Litigation (i) involving any Liability of any Triumph Entity for money damages in excess of
$20,000 in the aggregate or that would impose any restriction on the operations, business or Assets of any Triumph Entity or the
Surviving Corporation or (ii) arising out of or relating to the transactions contemplated hereby;
(l)
(i) enter into, renew, extend, modify, amend or terminate any (A) Contract (1) with a term longer than one year or (2)
that calls for aggregate payments of $25,000 or more, (B) Triumph Contract or any Contract which would be a Triumph Contract if
it were in existence on the date hereof, (C) Contract referred to in Section 4.34 (or any other Contract with any broker or finder
in connection with the Merger or any other transaction contemplated by this Agreement), or (D) Contract, plan, arrangement or
other transaction of the type described in Section 4.35 or (ii) waive, release, compromise or assign any material rights or claims
under any Contract described in the foregoing clause (i);
(m)
(i) enter into any new line of business or change in any material respect its lending, investment, risk and asset-liability
management, interest rate, fee pricing or other material banking or operating policies (including any change in the maximum ratio
or similar limits as a percentage of its capital exposure applicable with respect to its loan portfolio or any segment thereof)
or (ii) change its policies and practices with respect to underwriting, pricing, originating, acquiring, selling, servicing or
buying or selling rights to service Loans except as required by rules or policies imposed by a Regulatory Authority;
(n)
make, or commit to make, any capital expenditures in excess of $20,000 individually or $50,000 in the aggregate;
(o)
except as required by applicable Regulatory Authorities, make any material changes in its policies and practices with respect
to insurance policies including materially reduce the amount of insurance coverage currently in place or fail to renew or replace
any existing insurance policies;
(p)
materially change or restructure its investment securities portfolios, its investment securities practice or policies,
its hedging practices or policies, or change its policies with respect to the classification or reporting of such portfolios or
invest in any mortgage-backed or mortgage related securities which would be considered “high-risk” securities under
applicable regulatory pronouncements or change its interest rate exposure through purchases, sales or otherwise, or the manner
in which its investment securities portfolios are classified or reported;
(q)
alter materially its interest rate or fee pricing policies with respect to depository accounts of any Triumph Subsidiary
or waive any material fees with respect thereto;
(r)
take any action, or knowingly fail to take any action, which action or failure to act prevents or impedes, or could reasonably
be expected to prevent or impede, the Merger from qualifying as a “reorganization” within the meaning of Section 368(a)
of the Internal Revenue Code;
(s)
make or acquire any Loan or issue a commitment (including a letter of credit) or renew or extend an existing commitment
for any Loan, or amend or modify in any material respect any Loan (including in any manner that would result in any additional
extension of credit, principal forgiveness, or effect any uncompensated release of collateral, i.e., at a value below the
fair market value thereof as determined by Triumph Bank), except (i) Loans or commitments for Loans with a principal balance less
than $1,000,000 in full compliance with Triumph Bank’s underwriting policy and related Loan policies in effect as of the
date of this Agreement without utilization of any of the exceptions provided in such underwriting policy and related Loan policies
(provided that this exception shall not permit any Triumph Entity to acquire such Loans), (ii) Loans or commitments for Loans
with a principal balance equal to or less than $250,000 in full compliance with Triumph Bank’s underwriting policy and related
Loan policies in effect as of the date of this Agreement, including pursuant to an exception to such underwriting policy and related
Loan policies that is reasonable in light of the underwriting of the borrower for such Loan or commitment (provided that this
exception shall not permit any Triumph Entity to acquire such Loans), and (iii) amendments or modifications of any existing Loan
that is not a Criticized Loan in full compliance with Triumph Bank’s underwriting policy and related Loan policies in effect
as of the date of this Agreement without utilization of any of the exceptions provided in such underwriting policy and related
loan policies;
(t)
other than in the Ordinary Course, repurchase, or provide indemnification relating to, Loans in the aggregate in excess
of $100,000;
(u)
cancel, compromise, waive, or release any material indebtedness owed to any Person or any rights or claims held by any
Person, except for (i) sales of Loans and sales of investment securities, in each case in the Ordinary Course or (ii) as expressly
required by the terms of any Contracts in force at the date of the Agreement;
(v)
permit the commencement of any construction of new structures or facilities upon, or purchase or lease any real property
in respect of any branch or other facility, or make any application to open, relocate or close any branch or other facility;
(w)
enter into any securitizations of any Loans or create any special purpose funding or variable interest entity other than
on behalf of clients;
(x)
foreclose upon or take a deed or title to any commercial real estate (excluding real estate used solely for agricultural
production) without first conducting a Phase I environmental assessment (except where such an assessment has been conducted in
the preceding 12 months) of the property or foreclose upon any commercial real estate if such environmental assessment indicates
the presence of Hazardous Material;
(y)
notwithstanding any other provision hereof, take any action that is intended or which could reasonably be expected to (i)
impede, adversely affect or delay consummation of the transactions contemplated by this Agreement or the receipt of any approvals
of any Regulatory Authority or third party referenced in Section 7.4(a), (ii) result in any of the conditions set forth in ARTICLE
8 not being satisfied, or (iii) impair its ability to perform its obligations under this Agreement or to consummate the transactions
contemplated hereby; or
(z)
agree to take, make any commitment to take, or adopt any resolutions of Triumph’s board of directors in support of,
any of the actions prohibited by this Section 6.2.
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6.3
|
Covenants
of Simmons.
|
From
the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, unless the prior written
consent of Triumph shall have been obtained (which consent shall not be unreasonably withheld, delayed, or conditioned), and except
as expressly contemplated herein or as set forth in Section 6.3 of Simmons’s Disclosure Memorandum, Simmons covenants and
agrees that it will not do or agree or commit to do, or permit any of its Subsidiaries to do or agree or commit to do, any of
the following:
(a)
amend the articles of incorporation, bylaws or other governing instruments of Simmons or any Significant Subsidiaries (as
defined in Regulation S-X promulgated by the SEC) of Simmons in a manner that would adversely affect Triumph or the holders of
Triumph Common Stock adversely relative to other holders of Simmons Common Stock;
(b)
take any action, or knowingly fail to take any action, which action or failure to act prevents or impedes, or could reasonably
be expected to prevent or impede, the Merger from qualifying as a “reorganization” within the meaning of Section 368(a)
of the Internal Revenue Code;
(c)
take any action that is intended or which could reasonably be expected to (i) impede, adversely affect or delay consummation
of the transactions contemplated by this Agreement or the receipt of any approvals of any Regulatory Authority or third party
referenced in Section 7.4(a), (ii) result in any of the conditions set forth in ARTICLE 8 not being satisfied, or (iii) impair
its ability to perform its obligations under this Agreement or to consummate the transactions contemplated hereby, except as required
by applicable Law; or
(d)
agree to take, make any commitment to take, or adopt any resolutions of Simmons’s board of directors in support of,
any of the actions prohibited by this Section 6.3.
Each
Party and its Subsidiaries shall file all reports, including Call Reports, required to be filed by it with Regulatory Authorities
between the date of this Agreement and the Effective Time and shall deliver to the other Party copies of all such reports promptly
after the same are filed. If financial statements are contained in any such reports filed with the SEC and with respect to the
financial statements in the Call Reports, such financial statements will fairly present the consolidated financial position of
the entity filing such statements as of the dates indicated and the consolidated results of operations, changes in shareholders’
equity, and cash flows for the periods then ended in accordance with GAAP (subject in the case of interim financial statements
to normal recurring year-end adjustments that are not material) or applicable regulatory accounting principles (with respect to
the financial statements contained in the Call Reports) consistently applied, except as may be otherwise indicated in the notes
thereto and except for the omission of footnotes. Notwithstanding the above, neither Party shall be obligated to disclose to the
other Party any reports to the extent such reports contain confidential supervisory information or other information the disclosure
of which would be prohibited by applicable Law.
ARTICLE
7
ADDITIONAL AGREEMENTS
|
7.1
|
Registration
Statement; Proxy Statement/Prospectus; Shareholder Approvals.
|
(a)
Simmons and Triumph shall promptly prepare and file with the SEC, a proxy statement/prospectus in definitive form (including
any amendments thereto, the “Proxy Statement/Prospectus”) and Simmons shall prepare and file with the SEC the
Registration Statement (including the Proxy Statement/Prospectus constituting a part thereof and all related documents) as promptly
as reasonably practicable after the date of this Agreement, subject to full cooperation of both Parties and their respective advisors
and accountants. Simmons and Triumph agree to cooperate, and to cause their respective Subsidiaries to cooperate, with the other
Party and its counsel and its accountants in the preparation of the Registration Statement and the Proxy Statement/Prospectus.
Each of Simmons and Triumph agrees to use its reasonable best efforts to cause the Registration Statement to be declared effective
under the Securities Act as promptly as reasonably practicable after filing thereof, and Triumph shall thereafter mail or deliver
the Proxy Statement/Prospectus to its shareholders promptly following the date of effectiveness of the Registration Statement.
Simmons also agrees to use its reasonable best efforts to obtain all necessary state securities law or “Blue Sky”
permits and approvals required to carry out the transactions contemplated by this Agreement, and Triumph shall furnish all information
concerning Triumph and the holders of Triumph Common Stock as may be reasonably requested in connection with any such action.
(b)
Triumph shall duly call, give notice of, establish a record date for, convene and hold a shareholders’ meeting (“Triumph’s
Shareholders’ Meeting”), to be held as promptly as reasonably practicable after the Registration Statement is
declared effective by the SEC, for the purpose of obtaining the Triumph Shareholder Approval and, if so desired and mutually agreed,
such other matters of the type customarily brought before an annual or special meeting of shareholders. Triumph agrees that its
obligations pursuant to this Section 7.1(b) shall not be affected by the commencement, proposal, disclosure, or communication
to Triumph of any Acquisition Proposal.
(c)
Triumph shall (i) through its board of directors unanimously recommend to its shareholders the approval of this Agreement
and the transactions contemplated hereby (the “Triumph Recommendation”), (ii) include such Triumph Recommendation
in the Proxy Statement/Prospectus and (iii) use its reasonable best efforts to obtain the Triumph Shareholder Approval. If requested
by Simmons, Triumph shall retain a proxy solicitor reasonably acceptable to, and on terms reasonably acceptable to, Simmons in
connection with obtaining the Triumph Shareholder Approval. Neither the board of directors of Triumph nor any committee thereof
shall (A) withhold, withdraw, qualify or modify in a manner adverse to Simmons the Triumph Recommendation, (B) fail to make the
Triumph Recommendation or otherwise submit this Agreement to Triumph’s shareholders without recommendation, (C) adopt, approve,
agree to, accept, recommend or endorse an Acquisition Proposal, (D) fail to publicly and without qualification (1) recommend against
any Acquisition Proposal or (2) reaffirm the Triumph Recommendation within ten Business Days (or such fewer number of days as
remains prior to Triumph’s Shareholders’ Meeting) after an Acquisition Proposal is made public or any request by Simmons
to do so, (E) take any action, or make any public statement, filing or release inconsistent with the Triumph Recommendation, or
(F) publicly propose to do any of the foregoing (any of the foregoing being a “Change in the Triumph Recommendation”).
(d)
Triumph shall adjourn or postpone Triumph’s Shareholders’ Meeting, if, as of the time for which such meeting
is originally scheduled, there are insufficient shares of Triumph Common Stock represented (either in person or by proxy) to constitute
a quorum necessary to conduct the business of such meeting. Triumph shall also adjourn or postpone Triumph’s Shareholders’
Meeting if, as of the time for which Triumph’s Shareholders’ Meeting is scheduled, Triumph has not recorded proxies
representing a sufficient number of shares necessary to obtain the Triumph Shareholder Approval. Notwithstanding anything to the
contrary herein,
Triumph’s Shareholders’ Meeting shall be convened and this Agreement shall be submitted to the shareholders
of Triumph at Triumph’s Shareholders’ Meeting, for the purpose of voting on the approval of this Agreement and the
other matters contemplated hereby, and nothing contained herein shall be deemed to relieve Triumph of such obligation.
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7.2
|
Acquisition
Proposals.
|
(a)
No Triumph Entity shall, and it shall cause its Representatives not to, directly or indirectly, (i) solicit, initiate,
encourage (including by providing information or assistance), facilitate or induce any Acquisition Proposal, (ii) engage or participate
in any discussions or negotiations regarding, or furnish or cause to be furnished to any Person any confidential or nonpublic
information or data with respect to, or take any other action to facilitate any inquiries or the making of any offer or proposal
that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, (iii) adopt, approve, agree to, accept, endorse
or recommend any Acquisition Proposal, (iv) approve, agree to, accept, endorse or recommend, or propose to approve, agree to,
accept, endorse or recommend any Acquisition Agreement contemplating or otherwise relating to any Acquisition Transaction, or
(v) otherwise cooperate in any way with, or assist or participate in, or facilitate or encourage any effort or attempt by any
Person to do or seek to do any of the foregoing. Without limiting the foregoing, it is agreed that any violation of the restrictions
set forth in this Section 7.2 by any Subsidiary or Representative of Triumph shall constitute a breach of this Section 7.2 by
Triumph. In addition to the foregoing, Triumph shall not submit to the vote of its shareholders any Acquisition Proposal other
than the Merger.
(b)
Promptly (but in no event more than 24 hours) following receipt of any Acquisition Proposal or any request for nonpublic
information or any inquiry that could reasonably be expected to lead to any Acquisition Proposal, Triumph shall advise Simmons
in writing of the receipt of such Acquisition Proposal, request or inquiry, and the terms and conditions of such Acquisition Proposal,
request or inquiry (including, in each case, the identity of the Person making any such Acquisition Proposal, request or inquiry),
and Triumph shall as promptly as practicable provide to Simmons (i) a copy of such Acquisition Proposal, request or inquiry, if
in writing, or (ii) a written summary of the material terms of such Acquisition Proposal, request or inquiry, if oral. Triumph
shall provide Simmons as promptly as practicable (but in no event more than 24 hours) with notice setting forth all such information
as is necessary to keep Simmons informed on a current basis of all developments, discussions, negotiations and communications
regarding (including amendments or proposed amendments to) such Acquisition Proposal, request or inquiry.
(c)
Notwithstanding anything herein to the contrary, at any time prior to Triumph’s Shareholders’ Meeting, the
board of directors of Triumph may submit this Agreement to Triumph’s shareholders without recommendation (although the resolution
approving this Agreement as of the date hereof may not be rescinded or amended), if (i) Triumph has received a Superior Proposal
(after giving effect to the terms of any revised offer by Simmons pursuant to this Section 7.2(c)), and (ii) the board of directors
of Triumph has determined in good faith, after consultation with its financial advisors and outside legal counsel, that it would
be a violation of the directors’ fiduciary duties under applicable Law to make or continue to make the Triumph Recommendation;
provided, that the board of directors of Triumph may not take the actions set forth in this Section 7.2(c) unless:
|
(i)
|
Triumph
has complied in all material respects with this Section 7.2;
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(ii)
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Triumph
has provided Simmons at least five Business Days prior written notice of its intention
to take such action and a reasonable description of the events or circumstances giving
rise to its determination to take such action (including all necessary information under
Section 7.2(b));
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(iii)
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during
such five Business Day period, Triumph has and has caused its financial advisors and outside legal counsel to consider and negotiate
with Simmons in
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good
faith (to the extent Simmons desires to so negotiate) regarding any proposals, adjustments
or modifications to the terms and conditions of this Agreement proposed by Simmons; and
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(iv)
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the
board of directors of Triumph has determined in good faith, after consultation with its
financial advisors and outside legal counsel and considering the results of such negotiations
and giving effect to any proposals, amendments or modifications proposed to by Simmons,
if any, that such Superior Proposal remains a Superior Proposal and that it would nevertheless
be a violation of the director’s fiduciary duties under applicable Law to make
or continue to make the Triumph Recommendation.
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Any
material amendment to any Acquisition Proposal, will be deemed to be a new Acquisition Proposal for purposes of this Section 7.2(c)
and will require a new determination and notice period as referred to in this Section 7.2(c).
(d)
Triumph and Triumph Subsidiaries shall, and Triumph shall direct its Representatives to, (i) immediately cease and cause
to be terminated any and all existing activities, discussions or negotiations with any Persons conducted heretofore with respect
to any offer or proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, (ii) request the
prompt return or destruction of all confidential information previously furnished to any Person (other than Simmons, Simmons Bank
and their Representatives) that has made or indicated an intention to make an Acquisition Proposal, (iii) not waive or amend any
“standstill” provision or provisions of similar effect to which it is a party or of which it is a beneficiary and
shall strictly enforce any such provisions.
Simmons
shall use its reasonable best efforts to list, prior to the Effective Time, on Nasdaq, subject to official notice of issuance,
the shares of Simmons Common Stock to be issued to the holders of Triumph Common Stock pursuant to this Agreement, and Simmons
shall give all notices and make all filings with Nasdaq required in connection with the transactions contemplated herein.
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7.4
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Consents
of Regulatory Authorities.
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(a)
The Parties and their respective Subsidiaries shall cooperate with each other and use their respective reasonable best
efforts to prepare all documentation, to effect all applications, notices, petitions, and filings and to obtain all Permits and
Consents of all third parties and Regulatory Authorities that are necessary or advisable to consummate the transactions contemplated
by this Agreement (including the Merger), and to comply with the terms and conditions of all such Permits and Consents. Each of
the Parties shall use its respective reasonable best efforts to resolve objections, if any, which may be asserted with respect
to this Agreement or the transactions contemplated hereby by any Regulatory Authority or under any applicable Law or Order. Notwithstanding
the foregoing, in no event shall any Simmons Entities be required, and the Triumph Entities shall not be permitted (without Simmons’s
prior written consent in its sole discretion), to take any action, or commit to take any action, or to accept any restriction
or condition, involving the Simmons Entities or the Triumph Entities, which is materially burdensome on Simmons’s or Simmons
Bank’s business or on the business of Triumph or Triumph Bank, in each case following the Closing, or which would likely
reduce the economic benefits of the transactions contemplated by this Agreement to Simmons to such a degree that Simmons would
not have entered into this Agreement had such condition or restriction been known to it at the date hereof (any such condition
or restriction, a “Burdensome Condition”).
(b)
Each of the Parties shall have the right to review in advance, and to the extent practicable each will consult with the
other, in each case subject to applicable Laws relating to the exchange of information, with
respect to, all material written
information submitted to any third party or Regulatory Authority in connection with the transactions contemplated by this Agreement;
provided, that Triumph shall not have the right to review portions of material filed by Simmons or Simmons Bank with a Regulatory
Authority that contain competitively sensitive business or other proprietary information or confidential supervisory information.
In exercising the foregoing rights, each of the Parties agrees to act reasonably and as promptly as practicable. Each Party agrees
that it will consult with the other Party with respect to the obtaining of all Permits and Consents of third parties and Regulatory
Authorities necessary or advisable to consummate the transactions contemplated by this Agreement and each Party will keep the
other Party apprised of the status of material matters relating to completion of the transactions contemplated hereby, including
advising the other Party upon receiving any communication from a Regulatory Authority the Consent of which is required for the
consummation of the Merger and the other transactions contemplated by this Agreement that causes such Party to believe that there
is a reasonable likelihood that any Requisite Regulatory Approval will not be obtained or that the receipt of such Requisite Regulatory
Approval may be materially delayed. Subject to Section 10.15, except for non-material routine communications between counsel and
a Regulatory Authority relating to the regulatory approval process or status, each Party shall consult with the other in advance
of any meeting or conference with any Regulatory Authority in connection with the transactions contemplated by this Agreement.
(c)
Each Party agrees, upon request, subject to Section 10.15 and applicable Laws, to promptly furnish the other Party with
all information concerning itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably
necessary or advisable in connection with the Registration Statement, Proxy/Prospectus or any other statement, filing, notice
or application made by or on behalf of Simmons, Triumph or any of their respective Subsidiaries to any third party and/or Regulatory
Authority in connection with the transactions contemplated by this Agreement.
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7.5
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Access
to Information; Confidentiality and Notification of Certain Matters.
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(a)
Triumph shall promptly advise Simmons of any fact, change, event, effect, condition, occurrence, development or circumstance
(i) that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on
Triumph or (ii) which Triumph believes would or would be reasonably likely to cause or constitute a material breach of any of
its representations, warranties, covenants or agreements contained herein or that reasonably could be expected to give rise, individually
or in the aggregate, to the failure of a condition in ARTICLE 8; provided, that any failure to give notice in accordance with
the foregoing with respect to any breach shall not be deemed to constitute a violation of this Section 7.5(a) or the failure of
any condition set forth in Section 8.2 or 8.3 to be satisfied, or otherwise constitute a breach of this Agreement by the Party
failing to give such notice, in each case unless the underlying breach would independently result in a failure of the conditions
set forth in Section 8.2 or 8.3 to be satisfied; and provided, further, that the delivery of any notice pursuant to this Section
7.5(a) shall not cure any breach of, or noncompliance with, any other provision of this Agreement or limit the remedies available
to Simmons.
(b)
Prior to the Effective Time, Triumph shall permit the Representatives of Simmons to make or cause to be made such investigation
of the business, Assets, information technology systems, Contracts, Books and Records, and personnel and such other information
of it and its Subsidiaries and of their respective financial and legal conditions as Simmons reasonably requests and furnish to
Simmons promptly all other information concerning its business, Assets, information technology systems, Contracts, Books and Records,
and personnel and such other information as Simmons may reasonably request, provided that such investigation or requests shall
not interfere unnecessarily with normal operations of Triumph. No investigation by Simmons shall affect or be deemed to modify
or waive the representations, warranties, covenants and agreements of Triumph in this Agreement, or the conditions of such Party’s
obligation to consummate the transactions contemplated by this Agreement. Neither Simmons nor Triumph nor any of their respective
Subsidiaries shall be required to provide access to or to disclose information where such access or disclosure would violate or
prejudice the rights of Simmons’s or Triumph’s, as the case may be, customers, jeopardize the attorney-client privilege
of the institution
in possession or control of such information (after giving due consideration to the existence of any common
interest, joint defense or similar agreement between the Parties) or contravene any Law, fiduciary duty or binding Contract entered
into prior to the date of this Agreement or to the extent that Triumph may impose any reasonable restrictions with respect to
in-person access in light of the Pandemic or the Pandemic Measures, including the health and safety of its employees. The Parties
will make appropriate substitute disclosure arrangements under circumstances in which the restrictions of the preceding sentence
apply. Without limiting the foregoing, and for the avoidance of doubt, subject to applicable Law, Triumph shall permit the Representatives
of Simmons and Simmons Bank to observe meetings of committees or similar groups established to review and approve potential Loans
or similar matters.
(c)
Each Party shall, and shall cause its Subsidiaries and Representatives to, hold and use any information obtained in connection
with this Agreement and in pursuit of the transactions contemplated hereby in accordance with the terms of the Confidentiality
and Nondisclosure Agreement, dated March 29, 2021, between Simmons and Triumph (the “Confidentiality Agreement”).
(d)
Prior to the Effective Time, Triumph shall promptly notify Simmons of any material change in the normal course of its or
its Subsidiaries’ business or in the operation of its or its Subsidiaries’ properties and, to the extent permitted
by applicable Law, of any material Litigation (or communications indicating that the same may be contemplated), or the institution
or the threat of a material Litigation involving Triumph or any other Triumph Entity.
The
Parties shall consult with each other before issuing any press release or other public disclosure or communication (including
communications to employees, agents and contractors) related to this Agreement or the transactions contemplated hereby and shall
not issue such press release or other public disclosure without the prior written consent of the other Party (which consent shall
not be unreasonably withheld, delayed or conditioned); provided, that nothing in this Section 7.6 shall be deemed to prohibit
any Party from making any press release or other public disclosure as may upon the advice of the Party’s outside counsel
be required by Law or the rules or regulations of any United States or non-United States securities exchange, in which case the
Party required to make the release or disclosure shall use its reasonable best efforts to allow the other Party reasonable time
to comment on such release or disclosure in advance of the issuance thereof. The Parties have agreed upon the form of a joint
press release announcing the execution of this Agreement.
(a)
Each of the Parties intends, and undertakes and agrees to use its respective reasonable best efforts to cause, the Merger,
and to take no action which would cause the Merger not, to qualify as a “reorganization” within the meaning of Section
368(a) of the Internal Revenue Code for federal income Tax purposes, and none of the Parties shall take any action that would
cause the Merger to not so qualify. The Parties shall cooperate and use their reasonable best efforts in order to obtain the Tax
Opinion. The Parties adopt this Agreement as a “plan of reorganization” within the meaning of Treasury Regulations
Section 1.368-2(g) and for purposes of Sections 354, 361 and 368 of the Internal Revenue Code.
(b)
Each of the Parties shall use its respective reasonable best efforts to cause their appropriate officers to execute and
deliver to Covington certificates containing appropriate representations and covenants, reasonably satisfactory in form and substance
to Covington, at such time or times as may be reasonably requested by Covington, including as of the effective date of the Proxy
Statement/Prospectus and the Closing Date, in connection with such counsel’s deliveries of opinions with respect to the
Tax treatment of the Merger.
(c)
Unless otherwise required pursuant to a “determination” within the meaning of Section 1313(a) of the Internal
Revenue Code, each Party shall report the Merger as a “reorganization” within the meaning of Section 368(a) of the
Internal Revenue Code and shall not take any inconsistent position therewith in any Tax Return.
(d)
Prior to Closing, Triumph shall (i) deliver to Simmons and mail to the IRS in accordance with Treasury Regulation Section
1.897-2(h) (1) a statement, in form and substance satisfactory to Simmons, certifying that every Triumph Entity is not, and has
not been during the applicable period specified in Section 897(c)(1)(A)(ii) of the Internal Revenue Code, a “United States
real property holding company” within the meaning of Section 897(c)(2) of the Internal Revenue Code, which statement shall
satisfy the requirements of Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3), together with (2) a notice prepared and
executed in accordance with Treasury Regulations Section 1.897-2(h) to the IRS; and (ii) together therewith, furnish to Simmons
proof of mailing the items described in subclause (i).
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7.8
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Employee
Benefits and Contracts.
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(a)
For a period of one year following the Effective Time, except as contemplated by this Agreement, any Simmons Entity shall
provide generally to employees who are actively employed by a Triumph Entity on the Closing Date (“Covered Employees”)
while employed by such Simmons Entity following the Closing Date employee benefits under Simmons Benefit Plans, on terms and conditions
which are, in the aggregate, substantially comparable to those provided by Simmons Entities to their similarly situated employees;
provided, that in no event shall any Covered Employee be eligible to participate in any closed or frozen plan of any Simmons Entity.
Until such time as Simmons shall cause the Covered Employees to participate in the applicable Simmons Benefit Plans, the continued
participation of the Covered Employees in the Triumph Benefit Plans shall be deemed to satisfy the foregoing provisions of this
clause (it being understood that participation in Simmons Benefit Plans may commence at different times with respect to each of
Simmons Benefit Plans). For purposes of determining eligibility to participate and vesting under Simmons Benefit Plans, and for
purposes of determining a Covered Employee’s entitlement to paid time off under the applicable Simmons Entity’s paid
time off program, the service of the Covered Employees with a Triumph Entity prior to the Effective Time shall be treated as service
with a Simmons Entity participating in such Simmons Benefit Plans, to the same extent that such service was formally recognized
by the Triumph Entities for purposes of a similar benefit plan; provided, that such recognition of service shall not (i) operate
to duplicate any benefits of a Covered Employee with respect to the same period of service or (ii) apply for purposes of any plan,
program or arrangement (x) under which similarly-situated employees of Simmons Entities do not receive credit for prior service,
(y) that is grandfathered or frozen, either with respect to level of benefits or participation, or (z) for purposes of retiree
medical benefits or level of benefits under a defined benefit pension plan.
(b)
Prior to the Closing Date, the Triumph Entities shall take all necessary action (including without limitation the adoption
of resolutions and plan amendments and the delivery of any required notices) to terminate, effective as of no later than the day
before the Closing Date, any Triumph Benefit Plan that is intended to constitute a tax-qualified defined contribution plan under
Internal Revenue Code Section 401(k) (a “401(k) Plan”). Triumph shall provide Simmons with a copy of the resolutions,
plan amendments, notices and other documents prepared to effectuate the termination of the 401(k) Plans in advance and give Simmons
a reasonable opportunity to comment on such documents (which comments shall be considered in good faith), and prior to the Closing
Date, Triumph shall provide Simmons with the final documentation evidencing that the 401(k) Plans have been terminated.
(c)
Upon request by Simmons in writing prior to the Closing Date, the Triumph Entities shall cooperate in good faith with Simmons
prior to the Closing Date to amend, freeze, terminate or modify any other Triumph Benefit Plan to the extent and in the manner
determined by Simmons effective upon the Closing Date (or at such different time mutually agreed to by the Parties) and consistent
with applicable Law. Triumph
shall provide Simmons with a copy of the resolutions, plan amendments, notices and other documents
prepared to effectuate the actions contemplated by this Section 7.8(c), as applicable, and give Triumph a reasonable opportunity
to comment on such documents (which comments shall be considered in good faith), and prior to the Closing Date, Triumph shall
provide Simmons with the final documentation evidencing that the actions contemplated herein have been effectuated.
(d)
Without limiting the generality of Section 10.4, nothing in this Agreement, expressed or implied, is intended to confer
upon any Person (other than the Parties or their respective successors), including any current or former employee, officer, director
or consultant of Triumph or any of its Subsidiaries or Affiliates, any rights, remedies, obligations, or liabilities under or
by reason of this Agreement. In no event shall the terms of this Agreement: (i) establish, amend, or modify any Triumph Benefit
Plan or any “employee benefit plan” as defined in Section 3(3) of ERISA, or any other benefit plan, program, agreement
or arrangement maintained or sponsored by Simmons, Triumph or any of their respective Affiliates; (ii) alter or limit the ability
of the Surviving Corporation, Simmons or any of their Subsidiaries or Affiliates to amend, modify or terminate any Triumph Benefit
Plan, employment agreement or any other benefit or employment plan, program, agreement or arrangement after the Closing Date;
or (iii) confer upon any current or former employee, officer, director or consultant of Triumph or any of its Subsidiaries or
Affiliates, any right to employment or continued employment or continued service with Simmons or any Simmons Subsidiaries, the
Surviving Corporation or the Triumph Entities, or constitute or create an employment agreement with any employee, or interfere
with or restrict in any way the rights of the Surviving Corporation, Triumph, Simmons or any Subsidiary or Affiliate thereof to
discharge or terminate the services of any employee, officer, director or consultant of Triumph or any of its Subsidiaries or
Affiliates at any time for any reason whatsoever, with or without cause.
(e)
On the Closing Date, Triumph shall provide Simmons with a list of employees who have suffered an “employment loss”
(as defined in the WARN Act) in the 90 days preceding the Closing Date or had a reduction in hours of a least 50% in the 180 days
preceding the Closing Date, each identified by date of employment loss or reduction in hours, employing entity and facility location.
(a)
For a period of six years after the Effective Time, the Surviving Corporation shall indemnify, defend and hold harmless
the present and former directors or officers of the Triumph Entities (each, an “Indemnified Party”), against
all Liabilities incurred in connection with any Litigation arising out of or pertaining to, the fact that such person is or was
a director or officer of the Triumph Entities or, at Triumph’s request, of another corporation, partnership, joint venture,
trust or other enterprise and pertaining to matters, acts or omissions existing or occurring at or prior to the Effective Time
(including matters, acts or omissions occurring in connection with the approval of this Agreement and the transactions contemplated
by this Agreement) (each a “Claim”), whether asserted or claimed prior to, at or after the Effective Time,
to the fullest extent permitted under Triumph’s charter and bylaws as in effect as of the date of this Agreement (subject
to applicable Law), including provisions relating to advances of expenses incurred in the defense of any Litigation; provided,
that the Indemnified Party to whom expenses are advanced provides a written undertaking to repay such advances if it is ultimately
determined that such Indemnified Party is not entitled to indemnification.
(b)
The Surviving Corporation shall use its reasonable best efforts (and Triumph shall cooperate prior to the Effective Time
in these efforts) to maintain in effect for a period of six years after the Effective Time Triumph’s existing directors’
and officers’ liability insurance policy (provided that the Surviving Corporation may substitute therefor (i) policies of
at least the same coverage and amounts containing terms and conditions which are substantially no less advantageous to the insured
or (ii) with the consent of Triumph given prior to the Effective Time, any other policy) with respect to claims arising from facts
or events which occurred prior to the Effective Time; provided, that the Surviving Corporation shall not be obligated to make
aggregate premium
payments for such six-year period in respect of such policy (or coverage replacing such policy) which exceed,
for the portion related to Triumph’s directors and officers, 200% of the annual premium payments currently paid on Triumph’s
current policy in effect as of the date of this Agreement (the “Maximum Amount”). If the amount of the premiums
necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, the Surviving Corporation shall use its reasonable
best efforts to maintain the most advantageous policies of directors’ and officers’ liability insurance obtainable
for a premium equal to the Maximum Amount. In lieu of the foregoing, Simmons, or Triumph in consultation with Simmons, may obtain
on or prior to the Effective Time, a six-year “tail” prepaid policy providing equivalent coverage to that described
in this Section 7.9(b) at a premium not to exceed the Maximum Amount. If the premium necessary to purchase such “tail”
prepaid policy exceeds the Maximum Amount, Simmons or Triumph in consultation with Simmons may purchase the most advantageous
“tail” prepaid policy obtainable for a premium equal to the Maximum Amount, and in each case, Simmons and the Surviving
Corporation shall have no further obligations under this Section 7.9(b) other than to maintain such “tail” prepaid
policy.
(c)
Any Indemnified Party wishing to claim indemnification under Section 7.9(a), upon learning of any such Claim, shall promptly
notify the Surviving Corporation thereof. In the event of any such Claim (whether arising before or after the Effective Time):
(i) Simmons or the Surviving Corporation shall have the right to assume the defense thereof and Simmons and the Surviving Corporation
shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred
by such Indemnified Parties in connection with the defense thereof, except that if Simmons or the Surviving Corporation elects
not to assume such defense or independent legal counsel for the Indemnified Parties advises that there are substantive issues
which raise conflicts of interest between Simmons or the Surviving Corporation and the Indemnified Parties, the Indemnified Parties
may retain counsel satisfactory to them, and Simmons or the Surviving Corporation shall pay all reasonable fees and expenses of
such counsel for the Indemnified Parties as required under, and in accordance with, Triumph’s charter and bylaws as in effect
as of the date of this Agreement (subject to applicable Law); provided, that Simmons or the Surviving Corporation shall be obligated
pursuant to this Section 7.9(c) to pay for only one firm of counsel for all Indemnified Parties; (ii) the Indemnified Parties
will cooperate in the defense of any such Claim; and (iii) Simmons and the Surviving Corporation shall not be liable for any settlement
effected without its prior written consent; and provided, further, that Simmons and the Surviving Corporation shall not have any
obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall determine, and such determination
shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by
applicable Law or not required by Triumph’s charter and bylaws as in effect as of the date of this Agreement (subject to
applicable Law).
(d)
If the Surviving Corporation or any successors or assigns shall consolidate with or merge into any other Person and shall
not be the continuing or surviving Person of such consolidation or merger or if the Surviving Corporation (or any successors or
assigns) shall transfer all or substantially all of its Assets to any Person, then and in each case, proper provision shall be
made so that the successors and assigns of the Surviving Corporation shall assume the obligations set forth in this Section 7.9.
(e)
The provisions of this Section 7.9 are intended to be for the benefit of and shall be enforceable by, each Indemnified
Party and their respective heirs and Representatives.
(f)
Notwithstanding anything in this Section 7.9 to the contrary, no indemnification payments will be made to an Indemnified
Party with respect to an administrative proceeding or civil action initiated by any federal banking agency unless all of the following
conditions are met: (i) the Simmons’s board of directors determines in writing that the Indemnified Party acted in good
faith and in the best interests of Triumph or Triumph Bank; (ii) the Simmons’s board of directors determines that the payment
will not materially affect the Simmons’s or Simmons Bank’s safety and soundness; (iii) the payment does not fall within
the definition of a prohibited indemnification payment under 12 C.F.R. Part 359; and (iv) the Indemnified Party agrees in writing
to
reimburse Simmons, to the extent not covered by permissible insurance, for payments made in the event that the administrative
or civil action instituted by a banking Regulatory Authority results in a final order or settlement in which the Indemnified Party
is assessed a civil money penalty, is prohibited from banking, or is required to cease an action or perform an affirmative action.
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7.10
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Triumph
Operating Functions.
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Triumph
and Triumph Bank shall cooperate with Simmons and Simmons Bank in connection with planning for the efficient and orderly combination
of the Parties and the operation of the Surviving Corporation and the Surviving Bank, and in preparing for the consolidation of
appropriate operating functions to be effective at the Effective Time or such later date as Simmons may decide. Each Party shall
cooperate with the other Party in preparing to execute after the Effective Time conversion or consolidation of systems and business
operations generally (including by entering into customary confidentiality, nondisclosure and similar agreements with such service
providers or the other Party). Prior to Effective Time, each Party shall exercise, consistent with terms and conditions of this
Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
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7.11
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Shareholder
Litigation.
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Each
of Triumph and Simmons shall promptly notify each other in writing of any action, arbitration, audit, hearing, investigation,
litigation, suit, subpoena or summons issued, commenced, brought, conducted or heard by or before, or otherwise involving, any
Regulatory Authority or arbitrator pending or, to the Knowledge of Triumph or Simmons, as applicable, threatened against Triumph,
Simmons or any of their respective Subsidiaries or Representatives that (a) questions or would reasonably be expected to question
the validity of this Agreement or the other agreements contemplated hereby or thereby or any actions taken or to be taken by Triumph,
Simmons or their respective Subsidiaries with respect hereto or thereto or (b) seeks to enjoin or otherwise restrain the transactions
contemplated hereby or thereby. Triumph shall give Simmons prompt notice of any shareholder litigation against Triumph or its
directors or officers relating to the transactions contemplated by this Agreement and shall give Simmons every opportunity to
participate in the defense or settlement of such litigation, provided that no such settlement shall be agreed to by any Triumph
Entity without Simmons’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned).
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7.12
|
Legal
Conditions to Merger; Additional Agreements.
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Subject
to Sections 7.1 and 7.4 of this Agreement, each of Triumph and Simmons shall, and shall cause its Subsidiaries to, use their reasonable
best efforts (a) to take, or cause to be taken, all actions necessary, proper or advisable to comply promptly with all legal and
regulatory requirements that may be imposed on such Party or its Subsidiaries with respect to the Merger and Bank Merger and,
subject to the conditions set forth in ARTICLE 8 hereof, to consummate the transactions contemplated by this Agreement, and (b)
to obtain (and to cooperate with the other Party to obtain) any Permit or Consent by, any Regulatory Authority and any other third
party that is required to be obtained by Triumph or Simmons or any of their respective Subsidiaries in connection with, or to
effect, the Merger, the Bank Merger, and the other transactions contemplated by this Agreement. In case at any time after the
Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement (including, any merger
between a Subsidiary of Simmons, on the one hand, and a Subsidiary of Triumph, on the other hand) or to vest the Surviving Corporation
and the Surviving Bank with full title to all Assets, rights, Consents, Permits, immunities and franchises of any of the Parties
to the Merger and Bank Merger, the proper officers and directors of each Party and their respective Subsidiaries shall take all
such necessary action as may be reasonably requested by Simmons.
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7.13
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Closing
Financial Statements.
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At
least eight Business Days prior to the Effective Time, Triumph shall provide Simmons with Triumph’s consolidated financial
statements presenting the financial condition of Triumph and its Subsidiaries as of the close of business on the last day of the
last month ended prior to the Effective Time and Triumph’s consolidated results of operations, cash flows, and shareholders’
equity for the period from January 1, 2021, through the close of business on the last day of the last month ended prior to the
Effective Time (the “Closing Financial Statements”); provided, that if the Effective Time occurs on or before
the 15th Business Day of the month, Triumph shall have provided consolidated financial statements as of and through the second
month preceding the Effective Time. Such Closing Financial Statements shall have been prepared in accordance with GAAP and regulatory
accounting principles and other applicable legal and accounting requirements, and reflect all period-end accruals and other adjustments.
Such Closing Financial Statements shall also reflect as of their date (a) accruals for all fees, costs and expenses incurred or
expected to be incurred (whether or not doing so is in accordance with GAAP) in connection (directly or indirectly) with the transactions
contemplated by this Agreement, (b) the capital ratios set forth in Section 8.2(f), and (c) the asset quality metrics set forth
in Section 8.2(d) and shall be accompanied by a certificate of Triumph’s chief financial officer, dated as of the date of
such delivery of the Closing Financial Statements, to the effect that such financial statements meet the requirements of this
Section 7.13 and continue to reflect accurately, as of the date of such certificate, the consolidated financial condition, results
of operations, cash flows and shareholders’ equity of Triumph in all material respects (which certification shall be reaffirmed
in the certificates required to be delivered pursuant to Section 8.2(c)).
After
the date of this Agreement, each of Simmons and Triumph shall coordinate with the other regarding the declaration of any dividends
in respect of Simmons Common Stock and (to the extent permitted by this Agreement) Triumph Common Stock and the record dates and
payment dates relating thereto, it being the intention of the Parties that, Holders of Triumph Common Stock shall not receive
two or more dividends, or fail to receive one dividend, attributable to any particular quarter with respect to their shares of
Triumph Common Stock and any shares of Simmons Common Stock any such Holder receives in exchange therefor in the Merger.
Simmons
may at any time prior to the Effective Time change the method or structure of effecting the combination of Triumph and Simmons
(including by providing for the merger of Triumph with a wholly owned Subsidiary of Simmons) if and to the extent requested by
Simmons, and Triumph agrees to enter into such amendments to this Agreement as Simmons may reasonably request in order to give
effect to such restructuring; provided, that no such change or amendment shall (i) alter or change the amount or kind of the Merger
Consideration provided for in this Agreement, (ii) adversely affect the Tax treatment of the Merger with respect to Triumph’s
shareholders, or (iii) materially delay or impede the consummation of the transactions contemplated by this Agreement.
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7.16
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Restructuring
Efforts.
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If
Triumph shall have failed to obtain the Triumph Shareholder Approval at the duly convened Triumph’s Shareholders’
Meeting, or any adjournment or postponement thereof, each of the Parties shall in good faith use its reasonable best efforts to
negotiate a restructuring of the transaction provided for herein (it being understood that neither Party shall have any obligation
to alter or change any material terms, including the amount or kind of the Merger Consideration, in a manner adverse to such Party
or its shareholders or adversely affect the Tax treatment of the Merger with respect to Triumph’s shareholders) and/or resubmit
this Agreement or the transactions contemplated hereby (or as restructured pursuant to this Section 7.16) to Triumph’s shareholders
for approval.
Neither
Simmons or Triumph or their respective board of directors shall take any action that would cause any Takeover Statute to become
applicable to this Agreement, the Merger, or any of the other transactions contemplated hereby, and each shall take all necessary
steps to exempt (or ensure the continued exemption of) the Merger and the other transactions contemplated hereby from any applicable
Takeover Statute now or hereafter in effect. If any Takeover Statute may become, or may purport to be, applicable to the transactions
contemplated hereby, each of Simmons and Triumph and the members of their respective board of directors will grant such approvals
and take such actions as are necessary so that the transactions contemplated by this Agreement may be consummated as promptly
as practicable on the terms contemplated hereby and otherwise act to eliminate or minimize the effects of any Takeover Statute
on any of the transactions contemplated by this Agreement, including, if necessary, challenging the validity or applicability
of any such Takeover Statute.
Triumph
shall, prior to the Closing Date, (i) electronically archive and index copies of all documents associated with Loans or the underwriting,
servicing, administration, or monitoring thereof, to the extent requested by Simmons, (ii) archive in a central location all physical
documents associated with Loans or the underwriting, servicing, administration, or monitoring thereof, to the extent requested
by Simmons, and (iii) comply with any other reasonable requests by Simmons regarding documents associated with Loans or the underwriting,
servicing, administration, or monitoring thereof.
ARTICLE
8
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
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8.1
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Conditions
to Obligations of Each Party.
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The
respective obligations of each Party to consummate the Merger and the other transactions contemplated hereby are subject to the
satisfaction at or prior to the Effective Time of the following conditions, unless waived by both Parties pursuant to Section
10.6:
(a)
Shareholder Approval. The Triumph Shareholder Approval shall have been obtained.
(b)
Regulatory Approvals. (i) All required regulatory Permits or Consents from the Federal Reserve, the SBD, the TDFI,
the FDIC, and any other Regulatory Authority and (ii) any other regulatory Permits or Consents contemplated by Section 7.4 the
failure of which to obtain has had or would reasonably be expected to have, either individually or in the aggregate, a Material
Adverse Effect on Simmons and Triumph (considered as a consolidated entity), in each case required to consummate the transactions
contemplated by this Agreement, including the Merger, shall have been obtained and shall remain in full force and effect and all
statutory waiting periods in respect thereof shall have expired (all such approvals and the expiration of all such waiting periods
being referred to as the “Requisite Regulatory Approvals”); provided that no such Requisite Regulatory Approval
shall impose a Burdensome Condition as determined by Simmons in its sole discretion.
(c)
Legal Proceedings. No court or Regulatory Authority of competent jurisdiction shall have enacted, issued, promulgated,
enforced or entered any Law or Order (whether temporary, preliminary or permanent) or taken any other action which prohibits,
restricts or makes illegal the consummation of the transactions contemplated by this Agreement (including the Merger).
(d)
Registration Statement. The Registration Statement shall be effective under the Securities Act, no stop orders suspending
the effectiveness of the Registration Statement shall have been issued, and no action, suit, proceeding or investigation by the
SEC to suspend the effectiveness thereof shall have been initiated and be continuing.
(e)
Exchange Listing. The shares of Simmons Common Stock issuable pursuant to the Merger shall have been approved for
listing on Nasdaq, subject to official notice of issuance (if such approval is required by Nasdaq).
(f)
Tax Matters. The Parties shall have received a written opinion of Covington, in form reasonably satisfactory to
such Parties (the “Tax Opinion”), to the effect that the Merger will qualify as a “reorganization”
within the meaning of Section 368(a) of the Internal Revenue Code. In rendering such Tax Opinion, such counsel shall be entitled
to rely upon representations of officers of Triumph and Simmons reasonably satisfactory in form and substance to such counsel.
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8.2
|
Conditions
to Obligations of Simmons.
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The
obligations of Simmons to consummate the Merger and the other transactions contemplated hereby are subject to the satisfaction
at or prior to the Effective Time of the following conditions, unless waived by Simmons pursuant to Section 10.6:
(a)
Representations and Warranties. For purposes of this Section 8.2(a), the accuracy of the representations and warranties
of Triumph set forth in this Agreement shall be assessed as of the date of this Agreement and as of the Effective Time with the
same effect as though all such representations and warranties had been made on and as of the Effective Time (provided that representations
and warranties which are confined to a specified date shall speak only as of such date). The representations and warranties of
Triumph set forth in Sections 4.1, 4.2, 4.3(a), 4.3(c), 4.4(a), 4.4(c), 4.5, 4.10(a), 4.15, 4.16, 4.21, and 4.35 shall be true
and correct. The representations and warranties of Triumph set forth in Sections 4.3(b), 4.4(b), 4.6, 4.7, 4.25, 4.27, and 4.28
shall be true and correct in all material respects; provided, that, for purposes of this sentence only, those representations
and warranties which are qualified by references to “material” or “Material Adverse Effect” or to the
“Knowledge” of any Person shall be deemed not to include such qualifications. The representations and warranties set
forth in each other section in ARTICLE 4 shall, in the aggregate, be true and correct in all respects except where the failure
of such representations and warranties to be true and correct has not had or would not reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect; provided, that, for purposes of this sentence only, those representations
and warranties which are qualified by references to “material” or “Material Adverse Effect” or to the
“Knowledge” of any Person shall be deemed not to include such qualifications.
(b)
Performance of Agreements and Covenants. Triumph shall have performed in all material respects all obligations,
covenants and agreements required to be performed by it under this Agreement at or prior to the Effective Time.
(c)
Certificates. Triumph shall have delivered to Simmons (i) a certificate, dated as of the Closing Date and signed
on its behalf by its chief executive officer and its chief financial officer, to the effect that the conditions set forth in Section
8.1 as such conditions relate to Triumph and in Sections 8.2(a) and 8.2(b) have been satisfied and (ii) certified copies of resolutions
duly adopted by Triumph’s board of directors and shareholders evidencing the taking of all corporate action necessary to
authorize the execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby,
all in such reasonable detail as Simmons and its counsel shall request.
(d)
Asset Quality. In each case as reflected in the Closing Financial Statements (and as further described in Section
8.2(d) of Simmons’s Disclosure Memorandum), (i) Delinquent Loans shall not exceed 0.30% of total Loans, (ii) Non-Performing
Loans shall not exceed 0.50% of total Loans, (iii) the calculation of Non-Performing Assets to total Assets shall not be in excess
of 0.50%, (iv) Classified Assets to Tier 1 capital plus ALLL ratio shall not be in excess of 18.00%, (v) Non-Performing Assets
shall not exceed $2,000,000, (vi) Classified Assets shall not exceed $10,000,000, and (vii) ALLL to total Loans shall exceed 1.50%.
(e)
Dissenting Shares. Holders of not more than five percent of the outstanding shares of Triumph Common Stock shall
have demanded, properly and in writing, appraisal for such shares of Triumph Common Stock held by each such holder under Section
48-23-101 et seq.
(f)
Regulatory Capital. In each case as reflected in the Closing Financial Statements, (i) Triumph Bank shall be “well
capitalized” as defined under applicable Law, (ii) Triumph’s Tier 1 leverage ratio shall be no less than 9.25%, (iii)
Triumph’s Tier 1 risked-based capital ratio shall be no less than 9.50%, (iv) Triumph’s total risked-based capital
ratio shall be no less than 11.00%, (v) Triumph’s common equity Tier 1 ratio shall be no less than 10.00%, and (vi) Triumph
Bank shall not have received any notification from TDFI or Federal Reserve to the effect that the capital of Triumph Bank is insufficient
to permit Triumph Bank to engage in all aspects of its business and its currently proposed businesses without material restrictions,
including the imposition of a Burdensome Condition.
(g)
Termination of Contracts. Triumph shall have delivered to Simmons evidence satisfactory to Simmons in its discretion
that each Contract listed in Section 8.2(g) of Triumph’s Disclosure Memorandum has been terminated in its entirety.
(h)
Burdensome Condition. No Requisite Regulatory Approval contains, shall have resulted in or would reasonably be expected
to result in, the imposition of a Burdensome Condition.
(i)
Document Archiving. Triumph shall have delivered to Simmons a certificate, dated as of the Closing Date and signed
on its behalf by its chief executive officer and its chief financial officer (and in such reasonable detail as Simmons and their
counsel shall request), to the effect that it has fulfilled its obligations under Section 7.18 in all material respects.
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8.3
|
Conditions
to Obligations of Triumph.
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The
obligations of Triumph to consummate the Merger and the other transactions contemplated hereby are subject to the satisfaction
at or prior to the Effective Time of the following conditions, unless waived by Triumph pursuant to Section 10.6:
(a)
Representations and Warranties. For purposes of this Section 8.3(a), the accuracy of the representations and warranties
of Simmons set forth in this Agreement shall be assessed as of the date of this Agreement and as of the Effective Time with the
same effect as though all such representations and warranties had been made on and as of the Effective Time (provided that representations
and warranties which are confined to a specified date shall speak only as of such date). The representations and warranties of
Simmons set forth in Sections 5.4(a), 5.4(c) and 5.9 shall be true and correct (except for inaccuracies which are de minimis in
amount) (it being understood that, for purposes of determining the accuracy of such representations and warranties, the standard
set forth in Section 5.1 shall be disregarded). The representations and warranties of Simmons set forth in Sections 5.4(b), 5.13
and 5.14 shall be true and correct in all material respects (it being understood that, for purposes of determining the accuracy
of such representations and warranties, the standard set forth in Section 5.1 shall be disregarded). Subject to the standard set
forth in Section 5.1, the representations and warranties set forth in each other section in ARTICLE 5 shall be true and correct
in all respects.
(b)
Performance of Agreements and Covenants. Simmons shall have performed in all material respects all obligations,
covenants and agreements required to be performed by it under this Agreement at or prior to the Effective Time.
(c)
Certificates. Simmons shall have delivered to Triumph (i) a certificate, dated as of the Closing Date and signed
on its behalf by its chief executive officer and its chief financial officer, to the effect that the conditions set forth in Section
8.1 as such conditions relate to Simmons and in Sections 8.3(a) and 8.3(b) have been satisfied and (ii) certified copies of resolutions
duly adopted by Simmons’s board of directors evidencing the taking of all corporate action necessary to authorize the execution,
delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby, all in such reasonable
detail as Triumph and its counsel shall request.
ARTICLE
9
TERMINATION
Notwithstanding
any other provision of this Agreement, and notwithstanding the approval of this Agreement by the shareholders of Triumph, this
Agreement may be terminated and the Merger abandoned at any time prior to the Effective Time:
(a)
by mutual written agreement of Simmons and Triumph;
(b)
by either Party, by written notice to the other Party, in the event (i) (A) any Regulatory Authority has denied a Requisite
Regulatory Approval and such denial has become final, or has advised any Party that it will not grant (or intends to rescind or
revoke if previously approved) a Requisite Regulatory Approval or (B) any Regulatory Authority shall have requested that Simmons,
Triumph or any of their respective Affiliates withdraw (other than for technical reasons), and not be permitted to resubmit within
60 days, any application with respect to a Requisite Regulatory Approval, unless in each case the failure to obtain the Requisite
Regulatory Approval shall be due to the failure of the Party seeking to terminate this Agreement to perform or observe the obligations,
covenants and agreements of such Party set forth herein, (ii) subject to the terminating Party’s compliance with Section
7.16, the shareholders of Triumph fail to vote their approval of the matters relating to this Agreement and the transactions contemplated
hereby at Triumph’s Shareholders’ Meeting where such matters were presented to such shareholders for approval and
voted upon (taking into account any adjournment or postponement thereof as required by this Agreement), or (iii) any Law or Order
permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement
shall have become final and nonappealable, provided that the Party seeking to terminate this Agreement pursuant to this Section
9.1(b)(iii) shall have used its reasonable best efforts to contest, appeal and remove such Law or Order;
(c)
by either Party, by written notice to the other Party, in the event that the Merger shall not have been consummated by
March 1, 2022 if the failure to consummate the transactions contemplated hereby on or before such date is not caused by any breach
of this Agreement by the Party electing to terminate pursuant to this Section 9.1(c);
(d)
by Simmons, by written notice to Triumph, in the event that the board of directors of Triumph has (i) failed to make the
Triumph Recommendation or otherwise effected a Change in the Triumph Recommendation, (ii) breached the terms of Section 7.2 in
any respect adverse to Simmons, or (iii) breached its obligations under Section 7.1 by failing to call, give notice of, convene
or hold Triumph’s Shareholders’ Meeting in accordance with Section 7.1;
(e)
by either Party, by written notice to the other Party (provided that the terminating Party is not then in material breach
of any representation, warranty, covenant or other agreement contained herein), if there shall have been a breach of any of the
covenants or agreements or any of the representations or warranties (or any such representation or warranty shall cease to be
true) set forth in this Agreement on the part of Triumph, in the case of a termination by Simmons, or Simmons, in the case of
a termination by Triumph, which breach or failure to be true, either individually or in the aggregate with all other breaches
by such Party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on
the Closing Date, the failure of a condition set forth in Section 8.2, in the case of a termination by Simmons, or Section 8.3,
in the case of a termination by Triumph, and which is not cured within 45 days following written notice to Triumph, in the case
of a termination by Simmons, or Simmons, in the case of a termination by Triumph, or by its nature or timing cannot be cured during
such period (or such fewer days as remain prior to the date specified in Section 9.1(c));
(f)
by Simmons, by written notice to Triumph, if any Regulatory Authority has granted a Requisite Regulatory Approval but such
Requisite Regulatory Approval contains, or shall have resulted in or would reasonably be expected to result in, the imposition
of a Burdensome Condition; or
(g)
By Triumph, if the board of directors of Triumph so determines by a vote of at least two-thirds of the members of the entire
board of directors of Triumph at any time during the five-day period commencing with the Determination Date, if both of the following
conditions are satisfied:
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(i)
|
the
Average Closing Price is less than $24.85; and
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(ii)
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the
difference between (A) the quotient obtained by dividing (1) the average of the closing
prices of the Nasdaq Bank Index (as reported in The Wall Street Journal or, if not reported
thereby, another alternative source as chosen by Simmons) for the 20 consecutive full
trading days ending on and including the Determination Date by (2) $4,489.83 and (B)
the quotient obtained by dividing (1) the Average Closing Price by (2) $31.07, is greater
than 0.20 (or 20%),
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subject,
however, to the following three sentences. If Triumph elects to terminate this Agreement pursuant to this Section 9.1(g), it shall
give written notice to Simmons (provided that such notice of termination may be withdrawn at any time within the aforementioned
five-day period). During the five-day period commencing with its receipt of such notice, Simmons shall have the option to, in
its sole and absolute discretion, elect to increase the Aggregate Cash Consideration by an amount in cash so that, as a result
of such adjustment, the sum of (i) the Aggregate Cash Consideration and (ii) the Stock Consideration multiplied by the Average
Closing Price shall be no less than the Minimum Merger Consideration. If Simmons so elects within such five-day period, it shall
give prompt written notice to Triumph of such election and the revised Aggregate Cash Consideration, whereupon no termination
shall have occurred pursuant to this Section 9.1(g) and this Agreement shall remain in effect in accordance with its terms (except
as the Aggregate Cash Consideration shall have been so modified). “Minimum Merger Consideration” shall be the
sum of (i) the product of (x) $24.85 and (y) the Stock Consideration and (ii) the Aggregate Cash Consideration.
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9.2
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Effect
of Termination.
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In
the event of the termination and abandonment of this Agreement pursuant to Section 9.1, this Agreement shall become void and have
no further force or effect and there shall be no Liability on the part of any Party for any matters addressed herein or other
claim relating to this Agreement and the transactions contemplated hereby, except that (i) the provisions of this Section 9.2,
Section 7.5(c), and ARTICLE 10, shall survive any such termination and abandonment and (ii) no such termination shall relieve
the breaching Party from Liability resulting from any fraud or breach by that Party of this Agreement.
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9.3
|
Non-Survival
of Representations and Covenants.
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The
respective representations, warranties, obligations, covenants, and agreements of the Parties shall not survive the Effective
Time except this Section 9.3, Sections 7.5, 7.7, 7.8 and 7.9, and ARTICLE 1, ARTICLE 2, ARTICLE 3, and ARTICLE 10, which shall
survive in accordance with their respective terms.
ARTICLE
10
MISCELLANEOUS
(a)
Except as otherwise provided herein, the capitalized terms set forth below shall have the following meanings:
“Acquisition
Agreement” means a term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, merger
agreement, acquisition agreement, option agreement or other similar agreement (whether written or oral, binding or nonbinding).
“Acquisition
Proposal” means any offer, inquiry, proposal or indication of interest (whether communicated to Triumph or publicly
announced to Triumph’s shareholders and whether binding or non-binding) by any Person (other than a Simmons Entity) for
an Acquisition Transaction.
“Acquisition
Transaction” means any transaction or series of related transactions (other than the transactions contemplated by this
Agreement) involving: (i) any acquisition or purchase, direct or indirect, by any Person (other than a Simmons Entity) of 20%
or more in interest of the total outstanding voting securities of any Triumph Entity whose Assets, either individually or in the
aggregate, constitute more than 25% of the consolidated Assets of the Triumph Entities, or any tender offer or exchange offer
that if consummated would result in any Person (other than a Simmons Entity) beneficially owning 20% or more in interest of the
total outstanding voting securities of any Triumph Entity whose Assets, either individually or in the aggregate, constitute more
than 25% of the consolidated Assets of the Triumph Entities, or any merger, consolidation, share exchange, business combination,
reorganization, recapitalization, liquidation, dissolution or similar transaction involving any Triumph Entity whose Assets, either
individually or in the aggregate, constitute more than 25% of the consolidated Assets of the Triumph Entities; or (ii) any sale,
lease, exchange, transfer, license, acquisition or disposition of 20% or more of the consolidated Assets of the Triumph Entities,
taken as a whole.
“Affiliate”
of a Person means any other Person directly, or indirectly through one or more intermediaries, controlling, controlled by or under
common control with such Person, including, in the case of any Person that is not a natural person, and “control”
means (i) the ownership, control, or power to vote 25 percent or more of any class of voting securities of the other Person, (ii)
control in any manner of the election of a majority of the directors, trustees, managing members or general partners of the other
Person, or (iii) the possession, directly or indirectly, of the power to exercise a controlling influence over the management
or policies of such Person, whether through the ownership of voting securities, as trustee or executor, by Contract or any other
means.
“Aggregate
Cash Consideration” means cash in the amount of $2,645,937.83.
“Aggregate
Cash Equivalent Consideration” means the product of the Stock Consideration and the Average Closing Price.
“Aggregate
Stock Option Payout” means the sum of all Triumph Stock Option Payouts.
“Assets”
of a Person means all of the assets, properties, deposits, businesses and rights of such Person of every kind, nature, character
and description, whether real, personal or mixed, tangible or intangible, accrued or contingent, or otherwise relating to or utilized
in such Person’s business, directly or indirectly, in whole or in part, whether or not carried on the Books and Records
of such Person, and whether or not owned in the name of such Person or any Affiliate of such Person and wherever located.
“Average
Closing Price” means the average of the daily closing prices for the shares of Simmons Common Stock for the twenty consecutive
full trading days on which such shares are actually traded on Nasdaq (as reported by The Wall Street Journal or, if not reported
thereby, any other authoritative source) ending at the close of trading on the Determination Date.
“BHC
Act” means the federal Bank Holding Company Act of 1956, as amended.
“Books
and Records” means all files, ledgers and correspondence, all manuals, reports, texts, notes, memoranda, invoices, receipts,
accounts, accounting records and books, financial statements and financial working papers and all other records and documents
of any nature or kind whatsoever, including those recorded, stored, maintained, operated, held or otherwise wholly or partly dependent
on discs, tapes and other means of storage, including any electronic, magnetic, mechanical, photographic or optical process, whether
computerized or not, and all software, passwords and other information and means of or for access thereto, belonging to any specified
Person or relating to the business.
“Business
Day” means any day other than a Saturday, a Sunday or a day on which all banking institutions in New York, New York
are authorized or obligated by Law or executive order to close.
“Call
Reports” mean Consolidated Reports of Condition and Income (FFIEC Form 041) or any successor form of the Federal Financial
Institutions Examination Council of Triumph Bank or Simmons Bank.
“CARES
Act” means the Coronavirus Aid, Relief, and Economic Security Act (Pub. L. No. 116-136 (H.R. 748)).
“Cash
Consideration” means the Aggregate Cash Consideration less the Aggregate Stock Option Payout.
“Classified
Assets” means all Classified Loans, plus OREO and other repossessed assets.
“Classified
Loans” means all of the Loans of the Triumph Entities that were classified by a Triumph Entity as “Substandard,”
“Doubtful,” “Loss,” or words of similar import.
“Consent”
means any consent, approval, authorization, clearance, exemption, waiver, non-objection, or similar affirmation by any Person
pursuant to any Contract, Law, Order, or Permit.
“Contract”
means any written or oral agreement, arrangement, authorization, commitment, contract, indenture, instrument, lease, license,
mortgage, obligation, plan, understanding, or undertaking of any kind or character, or other document to which any Person is a
party or that is binding on any Person or its capital stock, Assets or business.
“COVID-19”
means the disease caused by the SARS-CoV-2 virus, and any evolutions thereof or any other epidemics, pandemics or disease outbreaks
related thereto.
“COVID-19
Relief Law” means any Law released, issued or promulgated by a Regulatory Authority that grants to any Person the ability
(i) to defer, reduce or eliminate any Taxes, (ii) to borrow or otherwise secure financing (including any PPP Loans), (iii) to
obtain grants or other financial benefits, in each case as a result of, or in connection with, the effects of COVID-19, including
the CARES Act, the Families First Coronavirus Response Act, and the Consolidated Appropriations Act, 2021.
“Covington”
means Covington & Burling LLP, headquartered at One CityCenter, 850 10th St NW, Washington, DC.
“Criticized
Loans” means all of the Loans of the Triumph Entities that were classified by a Triumph Entity as “Special Mention,”
“Substandard,” “Doubtful,” “Loss,” or words of similar import.
“Default”
means (i) any breach or violation of, default under, contravention of, conflict with, or failure to perform any obligations under
any Contract, Law, Order, or Permit, (ii) any occurrence of any event that with the passage of time or the giving of notice or
both would constitute a breach or violation of, default under, contravention of, or conflict with, any Contract, Law, Order, or
Permit, or (iii) any occurrence of any event that with or without the passage of time or the giving of notice would give rise
to a right of any Person to exercise any remedy or obtain any relief under, terminate or revoke, suspend, cancel, or modify or
change the current terms of, or renegotiate, or to accelerate the maturity or performance of, or to increase or impose any Liability
under, any Contract, Law, Order, or Permit.
“Delinquent
Loans” means all Loans with principal or interest that are 30-89 days past due.
“Derivative
Transaction” means any swap transaction, option, warrant, forward purchase or sale transaction, futures transaction,
cap transaction, floor transaction or collar transaction relating to one or more currencies, commodities, bonds, equity securities,
loans, interest rates, catastrophe events, weather-related events, credit-related events or conditions or any indexes, or any
other similar transaction (including any option with respect to any of these transactions) or combination of any of these transactions,
including collateralized mortgage obligations or other similar instruments or any debt or equity instruments evidencing or embedding
any such types of transactions, and any related credit support, collateral or other similar arrangements related to such transactions.
“Determination
Date” means the tenth (10th) Business Day prior to the Closing Date, provided that if shares of the Simmons
Common Stock are not actually traded on Nasdaq on such day, the Determination Date shall be the immediately preceding day to the
tenth Business Day prior to the Closing Date on which shares of Simmons Common Stock actually trade on Nasdaq.
“Disclosure
Memorandum” of a Party means a letter delivered by such Party to the other Party prior to execution of this Agreement,
setting forth, among other things, items the disclosure of which is necessary or appropriate either in response to an express
disclosure requirement contained in a provision hereof or as an exception to one or more representations or warranties contained
in ARTICLE 4 and ARTICLE 5 or to one or more of its covenants contained in this Agreement; provided, that (i) no such item is
required to be set forth in a Disclosure Memorandum as an exception to a representation or warranty if its absence would not be
reasonably likely to result in the related representation or warranty being deemed untrue or incorrect, (ii) the mere inclusion
of an item in a Disclosure Memorandum as an exception to a representation or warranty shall not be deemed an admission by a Party
that such item represents a material exception or fact, event or circumstance or that such item is reasonably expected to result
in a Material Adverse Effect on the Party making the representation or warranty, and (iii) any disclosures made with respect to
a section of ARTICLE 4 or ARTICLE 5 shall be deemed to qualify (A) any other section of ARTICLE 4 or ARTICLE 5 specifically referenced
or cross-referenced and (B) other sections of ARTICLE 4 or ARTICLE 5 to the extent it is reasonably apparent on its face (notwithstanding
the absence of a specific cross reference) from a reading of the disclosure that such disclosure applies to such other sections.
“Employee
Benefit Plan” means each pension, retirement, profit-sharing, deferred compensation, stock option, restricted stock,
stock appreciation rights, employee stock ownership, share purchase, severance pay, vacation, bonus, incentive, retention, change
in control or other incentive plan, medical, vision, dental or other health plan, any life insurance plan, flexible spending account,
cafeteria plan, vacation, holiday, disability or any other employee benefit plan or fringe benefit plan, including any “employee
benefit plan,” as that term is defined in Section 3(3) of ERISA and any other plan, fund, policy, program, practice, custom,
understanding, agreement, or arrangement providing compensation or other benefits, whether or not such Employee Benefit Plan is
or is intended to be (i) covered or qualified under the Internal Revenue Code, ERISA or any other applicable Law, (ii) written
or oral, (iii) funded or unfunded, (iv) actual or contingent, or (v) arrived at through collective bargaining or otherwise.
“Environmental
Laws” means all Laws, Orders, Permits, opinions or agency requirements relating to pollution or protection of human
health or safety or the environment (including ambient air, surface water, ground water, land surface, or subsurface strata) including
the Comprehensive Environmental Response Compensation and Liability Act, as amended, 42 U.S.C. 9601 et seq., the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. 6901 et seq., and other Laws relating to emissions, discharges, releases,
or threatened releases of any Hazardous Material, or otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport, or handling of any Hazardous Material.
“Equity
Rights” means all arrangements, calls, commitments, Contracts, options, rights (including preemptive rights or redemption
rights), scrip, units, understandings, warrants, or other binding obligations of any character whatsoever relating to, or securities
or rights convertible into or exchangeable for, shares of the capital stock or equity interests of a Person or by which a Person
is or may be bound to issue additional shares of its capital stock or other equity interests.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Exhibit”
means the Exhibits so marked, copies of which are attached to this Agreement. Such Exhibits are hereby incorporated by reference
herein and made a part hereof, and may be referred to in this Agreement and any other related instrument or document without being
attached hereto.
“Federal
Reserve” means the Board of Governors of the Federal Reserve System or a Federal Reserve Bank acting under the appropriately
delegated authority thereof, as applicable.
“Fully
Diluted Per Share Value” means the quotient obtained by dividing the Total Dilution Consideration by the Fully Diluted
Triumph Shares Outstanding.
“Fully
Diluted Triumph Shares Outstanding” means the sum of the Triumph Shares Outstanding and the Triumph Stock Options Outstanding.
“GAAP”
means U.S. generally accepted accounting principles, consistently applied during the periods involved.
“Hazardous
Material” means (i) any hazardous substance, hazardous material, hazardous waste, regulated substance, or toxic substance
(as those terms are defined by any applicable Environmental Laws), (ii) any chemicals, pollutants, contaminants, petroleum, petroleum
products, or oil, lead-containing paint or plumbing, radioactive materials or radon, asbestos-containing materials and any polychlorinated
biphenyls, and (iii) any other substance which has been, is, or may be the subject of regulatory action by any government authority
in connection with any Environmental Law.
“Intellectual
Property” means copyrights, patents, trademarks, service marks, service names, trade names, brand names, internet domain
names, logos together with all goodwill associated therewith, registrations and applications therefor, technology rights and licenses,
computer software (including any source or object codes therefor or documentation relating thereto), trade secrets, franchises,
know-how, inventions, and other intellectual property rights.
“Internal
Revenue Code” means the Internal Revenue Code of 1986, as amended.
“Key
Employee” means an employee of any Triumph Entity having the position of Senior Vice President or above.
“Knowledge”
as used with respect to a Person means the actual knowledge of the chairman, president, chief executive officer, chief financial
officer, chief risk officer (to the extent applicable to such Person), chief compliance officer, chief accounting officer (to
the extent applicable to such Person), chief operating officer, chief credit officer, general counsel (to the extent applicable
to such Person), any assistant or deputy general counsel (to the extent applicable to such Person), human resources manager, or
any senior executive of such Person and the knowledge of any such Persons obtained or which would have been obtained from a reasonable
investigation.
“Law”
means any code, law (including common law), ordinance, regulation, reporting or licensing requirement, rule, or statute applicable
to a Person or its Assets, Liabilities, or business, including those promulgated, interpreted or enforced by any Regulatory Authority.
“Liability”
means any direct or indirect, primary or secondary, liability, indebtedness, obligation, penalty, cost or expense (including costs
of investigation, collection and defense), claim, deficiency, guaranty or endorsement of or by any Person (other than endorsements
of notes, bills, checks, and drafts presented for collection or deposit in the Ordinary Course) of any type, whether accrued,
absolute or contingent, liquidated or unliquidated, matured or unmatured, or otherwise.
“Lien”
means any conditional sale agreement, default of title, easement, encroachment, encumbrance, hypothecation, infringement, lien,
mortgage, pledge, option, right of first refusal, reservation, restriction, security interest, title retention or other security
arrangement, or any adverse right or interest, charge, or claim of any nature whatsoever of, on, or with respect to any property
or property interest, other than Permitted Liens.
“Litigation”
means any action, arbitration, cause of action, lawsuit, claim, complaint, criminal prosecution, governmental or other examination
or investigation, audit (other than regular audits of financial statements by outside auditors), compliance review, inspection,
hearing, administrative or other proceeding relating to or affecting a Party, its business, its records, its policies, its practices,
its compliance with Law, its actions, its Assets (including Contracts related to it), or the transactions contemplated by this
Agreement, but shall not include regular, periodic examinations of depository institutions and their Affiliates by Regulatory
Authorities.
“Loans”
means any written or oral loan, loan agreement, note or borrowing arrangement (including leases, credit enhancements, guarantees
and interest-bearing assets) to which any Triumph Entity is party as a creditor.
“Losses”
means any and all demands, claims, actions or causes of action, assessments, losses, diminution in value, damages (including special,
punitive and consequential damages), liabilities, costs, and expenses, including interest, penalties, cost of investigation and
defense, and reasonable attorneys’ and other professional fees and expenses.
“Material”
or “material” for purposes of this Agreement shall be determined in light of the facts and circumstances of
the matter in question; provided, that any specific monetary amount stated in this Agreement shall determine materiality in that
instance.
“Material
Adverse Effect” means with respect to any Party and its Subsidiaries, any fact, circumstance, event, change, effect,
development or occurrence that, individually or in the aggregate together with all other facts, circumstances, events, changes,
effects, developments or occurrences, directly or indirectly, (i) has had or would reasonably be expected to result in a material
adverse effect on the condition (financial or otherwise), results of operations, Assets, liabilities or business of such Party
and its Subsidiaries taken as a whole; provided, that a “Material Adverse Effect” shall not be deemed to include effects
to the extent resulting from (A) changes after the date of this Agreement in GAAP or applicable regulatory accounting requirements,
(B) changes after the date of this Agreement in Laws of general applicability to companies in the financial services industry,
(C) changes after the date of this Agreement in global, national or regional political conditions or general economic or market
conditions in the United States (and with respect to each of Triumph and Simmons, in the respective markets in which they operate),
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 other companies in the financial services industry,
(D) after the date of this Agreement, general changes in the credit markets or general downgrades in the credit markets, (E) failure,
in and of itself, to meet earnings projections or internal
financial forecasts, but not including any underlying causes thereof
unless separately excluded hereunder, or changes in the trading price of a Party’s common stock, in and of itself, but not
including any underlying causes unless separately excluded hereunder, (F) the public disclosure of this Agreement and the impact
thereof on relationships with customers or employees, (G) any outbreak or escalation of hostilities, declared or undeclared acts
of war or terrorism, (H) changes, after the date hereof, resulting from hurricanes, earthquakes, tornados, floods or other natural
disasters or from any epidemic, pandemic, or outbreak of any disease or other public health event (including the Pandemic and
the implementation of the Pandemic Measures) in the jurisdictions in which Triumph or Simmons Bank operate or (I) actions or omissions
taken with the prior written consent of the other Party or expressly required by this Agreement; except, with respect to clauses
(A), (B), (C), (D), (G) and (H), to the extent that the effects of such change disproportionately affect such Party and its Subsidiaries,
taken as a whole, as compared to other companies in the industry in which such Party and its Subsidiaries operate, or (ii) prevents
or materially impairs the ability of such Party to timely consummate the transactions contemplated hereby; provided, further,
that the application of the conditions in Section 8.2(d) and Section 8.2(f) is independent of the definition of Material Adverse
Effect and the satisfaction or lack of satisfaction of the requirements therein is not determinative of whether a Material Adverse
Effect has otherwise occurred.
“Merger
Consideration” means the sum of (A) the Per Share Cash Consideration, (B) the Per Share Stock Consideration, (C) the
Fractional Share Payment (if any), and (D) any dividends or distributions (if any) pursuant to Section 3.1(d).
“Nasdaq”
means the Nasdaq Global Select Market.
“Non-Performing
Assets” means (i) Non-Performing Loans and (ii) OREO and other repossessed Assets. Non-Performing Assets shall be reflected
in the Closing Financial Statements.
“Non-Performing
Loans” means (i) all Loans with principal and/or interest that are at least 90 days past due and still accruing and
(ii) all Loans with principal and/or interest that are nonaccruing.
“Operating
Property” means any property owned, leased, or operated by the Party in question or by any of its Subsidiaries or in
which such Party or Subsidiary holds a security interest or other interest (including an interest in a fiduciary capacity), and,
where required by the context, includes the owner or operator of such property, but only with respect to such property.
“Option
Exercise Price” means the exercise price of a Triumph Stock Option.
“Order”
means any administrative decision or award, decree, injunction, judgment, order, consent decree, quasi-judicial decision or award,
ruling, or writ of any federal, state, local or foreign or other court, arbitrator, mediator, tribunal, administrative agency,
or Regulatory Authority.
“Ordinary
Course” means the conduct of the business of the Party, in substantially the same manner as such business was operated
on the date of this Agreement, including operations in conformance and consistent with the Party’s practices and procedures
prior to and as of such date. For purposes of this Agreement, the term “Ordinary Course,” with respect to any Party,
shall take into account the commercially reasonable action or inaction by such Party and its
Subsidiaries in response to the Pandemic
to comply with the Pandemic Measures to the extent disclosed to the other Party prior to the date hereof.
“OREO”
means “other real estate owned” or words of similar import as reflected in the Triumph Financial Statements.
“Pandemic”
means any outbreaks, epidemics or pandemics relating to COVID-19, or any evolutions or mutations thereof.
“Pandemic
Measures” means any quarantine, “shelter in place”, “stay at home”, workforce reduction, social
distancing, shut down, closure, sequester or other Laws or directives, guidelines or recommendations promulgated by any Regulatory
Authority, including the Centers for Disease Control and Prevention and the World Health Organization, in each case, in connection
with or in response to the Pandemic.
“Participation
Facility” means any facility or property in which the Party in question or any of its Subsidiaries participates in the
management and, where required by the context, said term means the owner or operator of such facility or property, but only with
respect to such facility or property.
“Party”
means either of Triumph or Simmons, and “Parties” means Triumph and Simmons.
“Permit”
means any federal, state, local, or foreign governmental approval, authorization, certificate, easement, filing, franchise, license,
notice, permit, or right to which any Person is a party or that is or may be binding upon or inure to the benefit of any Person
or its securities, Assets, or business.
“Per
Share Cash Consideration” means the quotient obtained by dividing the Cash Consideration by the Triumph Shares Outstanding.
“Per
Share Stock Consideration” means the quotient obtained by dividing the Stock Consideration by the Triumph Shares Outstanding.
“Person”
means a natural person or any legal, commercial or governmental entity, such as, but not limited to, a corporation, general partnership,
joint venture, limited partnership, limited liability company, limited liability partnership, trust, business association, group
acting in concert, or any person acting in a Representative capacity.
“PPP
Loan” means (i) any covered loan under paragraph (36) of Section 7(a) of the Small Business Act (15 U.S.C. 636(a)),
as added by Section 1102 of the CARES Act, or (ii) any loan that is an extension or expansion of, or is similar to, any covered
loan described in clause (i).
“Previously
Disclosed” by a Party means information set forth in its Disclosure Memorandum or, if applicable, information set forth
in its SEC Documents that were filed after December 31, 2016, but prior to the date hereof (but disregarding risk factor disclosures
contained under the heading “Risk Factors” or disclosures of risk factors set forth in any “forward-looking
statements” disclaimer or other statements that are similarly non-specific or cautionary, predictive or forward-looking
in nature).
“Registration
Statement” means the Registration Statement on Form S-4, or other appropriate form, including any pre-effective or post-effective
amendments or supplements thereto, to be
filed with the SEC by Simmons under the Securities Act with respect to the shares of
Simmons Common Stock to be issued to the shareholders of Triumph pursuant to this Agreement.
“Regulatory
Authorities” means, collectively, the SEC, Nasdaq, state securities authorities, the Financial Industry Regulatory Authority,
the Securities Investor Protector Corporation, applicable securities, commodities and futures exchanges, and other industry self-regulatory
organizations, the Federal Reserve, the FDIC, the SBD, the TDFI, the Consumer Financial Protection Bureau, the IRS, the DOL, the
PBGC, and all other foreign, federal, state, county, local or other governmental, banking or regulatory agencies, authorities
(including taxing and self-regulatory authorities), instrumentalities, commissions, boards, courts, administrative agencies, commissions
or bodies.
“Representative”
means, with respect to any Person, any officer, director, employee, investment banker, financial or other advisor, attorney, auditor,
accountant, consultant, or other representative or agent of or engaged or retained by such Person.
“SEC”
means the United States Securities and Exchange Commission.
“SEC
Documents” means all forms, proxy statements, registration statements, reports, schedules, and other documents filed,
together with any amendments thereto, by any Simmons Entities with the SEC on or after December 31, 2016, or by any Triumph Entities
with the SEC on or after December 31, 2016, as applicable.
“Securities
Act” means the Securities Act of 1933, as amended.
“Securities
Laws” means the Securities Act, the Exchange Act, the Investment Company Act of 1940, as amended, the Investment Advisers
Act of 1940, as amended, the Trust Indenture Act of 1939, as amended, and the rules and regulations of any Regulatory Authority
promulgated thereunder.
“Simmons
Bank” means Simmons Bank, a state-chartered bank under the laws of Arkansas and a wholly owned Simmons Subsidiary.
“Simmons
Benefit Plan” means each Employee Benefit Plan currently adopted (including all amendments thereto), maintained by,
sponsored in whole or in part by, or contributed to by any Simmons Entity or Simmons ERISA Affiliate for the benefit of employees,
retirees, dependents, spouses, directors, independent contractors, or other beneficiaries or under which employees, retirees,
former employees, dependents, spouses, directors, independent contractors, or other beneficiaries are eligible to participate
or with respect to which Simmons or any Simmons ERISA Affiliate has or may have any obligation or Liability.
“Simmons
Common Stock” means the $0.01 par value common stock of Simmons.
“Simmons
Entities” means, collectively, Simmons and all Simmons Subsidiaries.
“Simmons
ERISA Affiliate” means any entity which together with a Simmons Entity would be treated, at the relevant time, as a
single employer under Internal Revenue Code Section 414.
“Simmons
Financial Statements” means (i) the consolidated statements of condition (including related notes and schedules, if
any) of Simmons as of December 31, 2020, and as of December 31, 2019 and 2018 and the related statements of operations, changes
in shareholders’ equity,
and cash flows (including related notes and schedules, if any) for the year ended December 31,
2020, and for each of the two fiscal years ended December 31, 2019 and 2018 as filed by Simmons in SEC Documents and (ii) the
consolidated statements of condition of Simmons (including related notes and schedules, if any) and related statements of operations,
changes in shareholders’ equity, and cash flows (including related notes and schedules, if any) including in SEC Documents
filed with respect to periods ended subsequent to December 31, 2020.
“Simmons
Restricted Stock Award” means each award of shares of Simmons Common Stock or other Equity Right to shares of Simmons
Common Stock subject to vesting, repurchase or other lapse restriction granted under a Simmons Stock Plan.
“Simmons
Stock Options” means each option or other Equity Right to purchase shares of Simmons Common Stock pursuant to stock
options or stock appreciation rights.
“Simmons
Stock Plans” means the existing stock option and other stock-based compensation plans of Simmons designated as follows:
Simmons Executive Stock Incentive Plan – 2006; Simmons Outside Director Stock Incentive Plan – 2006; Simmons Executive
Stock Incentive Plan – 2010; Simmons Outside Director Stock Incentive Plan – 2014; and the Second Amended and Restated
Simmons First National Corporation 2015 Incentive Plan.
“Simmons
Subsidiaries” means the Subsidiaries of Simmons, which shall include any corporation, bank, savings association, limited
liability company, limited partnership, limited liability partnership or other organization acquired as a Subsidiary of Simmons
after the date hereof and held as a Subsidiary by Simmons at the Effective Time.
“Stock
Consideration” means 4,164,839 shares of Simmons Common Stock.
“Subsidiaries”
means all those corporations, associations, or other business entities of which the entity in question either (i) owns or controls
more than 50% of the outstanding equity securities or other ownership interests either directly or through an unbroken chain of
entities as to each of which more than 50% of the outstanding equity securities is owned directly or indirectly by its parent
(provided, there shall not be included any such entity the equity securities of which are owned or controlled in a fiduciary capacity),
(ii) in the case of partnerships, serves as a general partner, (iii) in the case of a limited liability company, serves as a managing
member, or (iv) otherwise has the ability to elect a majority of the directors, trustees or managing members thereof.
“Superior
Proposal” means any unsolicited bona fide written Acquisition Proposal with respect to which the board of directors
of Triumph determines in its good faith judgment (based on, among other things, the advice of outside legal counsel and a financial
advisor) is reasonably likely to be consummated in accordance with its terms, and if consummated, would result in a transaction
more favorable, from a financial point of view, to Triumph’s shareholders than the Merger and the other transactions contemplated
by this Agreement (as it may be proposed to be amended by Simmons), taking into account all relevant factors (including the Acquisition
Proposal and this Agreement (including any proposed changes to this Agreement that may be proposed by Simmons in response to such
Acquisition Proposal)); provided, that for purposes of the definition of “Superior Proposal,” the references to “20%”
in the definition of Acquisition Transaction shall be deemed to be references to “50%.”
“Tax”
or “Taxes” means any federal, state, county, local, or foreign taxes, or, to the extent in the nature of a
tax, any charges, fees, levies, imposts, duties, or other assessments, including
income, gross receipts, excise, employment, sales,
use, transfer, recording license, payroll, franchise, severance, documentary, stamp, occupation, windfall profits, environmental,
commercial rent, capital stock, paid-up capital, profits, withholding, Social Security, single business and unemployment, real
property, personal property, escheat, unclaimed property, registration, ad valorem, value added, goods and services, alternative
or add-on minimum, estimated, or other tax, imposed or required to be withheld by the United States or any state, county, local
or foreign government or subdivision or agency thereof, including any interest, penalties, and additions imposed thereon or with
respect thereto (including any such interest, penalties, or additions imposed as a result of a failure to timely, correctly or
completely file any Tax Return).
“Tax
Return” means any report, return, information return, or other document supplied to, or required to be supplied to a
Regulatory Authority in connection with Taxes, including any return of an affiliated or combined or unitary group that includes
a Party or its Subsidiaries and including any amendment, attachment, or schedule thereto.
“Total
Dilution Consideration” means the sum of (i) the Aggregate Cash Consideration, (ii) the Aggregate Cash Equivalent Consideration,
and (iii) the product obtained by multiplying the Weighted Average Option Exercise Price by the Triumph Stock Options Outstanding.
“Treasury
Regulations” means the United States Treasury Regulations promulgated under the Internal Revenue Code, and any reference
to any particular Treasury Regulation section shall be interpreted to include any final or temporary revision of or successor
to that Section regardless of how numbered or classified.
“Triumph
Bank” means Triumph Bank, a state-chartered bank under the laws of Tennessee and a wholly owned Triumph Subsidiary.
“Triumph
Bank Capital Stock” means, collectively, Triumph Bank Common Stock and any other class or series of capital stock of
Triumph Bank.
“Triumph
Bank Common Stock” means the common stock, par value $1 per share, of Triumph Bank.
“Triumph
Common Stock” means the $1.00 par value common stock of Triumph. “Triumph Entities” means, collectively,
Triumph and all Triumph Subsidiaries.
“Triumph
ERISA Affiliate” means any entity which together with a Triumph Entity would be, at the relevant time, treated as a
single employer under Internal Revenue Code Section 414.
“Triumph
Financial Statements” means (i) the consolidated statements of condition (including related notes and schedules, if
any) of Triumph as of December 31, 2020, and as of December 31, 2019, 2018 and 2017 and the related statements of operations,
changes in shareholders’ equity, and cash flows (including related notes and schedules, if any) for the year ended December
31, 2020, and for each of the three fiscal years ended December 31, 2019, 2018 and 2017, and (ii) the consolidated statements
of condition of Triumph (including related notes and schedules, if any) and related statements of operations, changes in shareholders’
equity, and cash flows (including related notes and schedules, if any) with respect to periods ended subsequent to December 31,
2020.
“Triumph
Preferred Stock” means the preferred stock, with no par value per share, including the Mandatory Convertible Non-Voting
Preferred Stock, Class A and the 5% Cumulative Mandatory Convertible Non-Voting Preferred Stock, Class B of Triumph.
“Triumph
Shares Outstanding” means the total number of shares of Triumph Common Stock outstanding immediately prior to the Effective
Time.
“Triumph
Stock Option Amount” means the Fully Diluted Per Share Value less the Option Exercise Price.
“Triumph
Stock Options Outstanding” means the total number of shares of Triumph Common Stock underlying the Triumph Stock Options
as of immediately prior to the Effective Time.
“Triumph
Subsidiary” means the Subsidiaries of Triumph, which shall include Triumph Bank, the entities set forth on Schedules
4.4(c) and 4.5(a) and any corporation, bank, savings association, limited liability company, limited partnership, limited liability
partnership or other organization acquired as a Subsidiary of Triumph after the date hereof and held as a Subsidiary by Triumph
at the Effective Time.
“WARN
Act” means the Worker Adjustment and Retraining Notification Act of 1988 (or any similar applicable local Law insofar
as it relates to an employer’s obligations in the context of mass layoffs or plant closings).
“Weighted
Average Option Exercise Price” means the weighted average Option Exercise Price for all the Triumph Stock Options Outstanding.
The
terms set forth below shall have the meanings ascribed thereto in the referenced pages:
401(k)
Plan
|
B-45
|
ABCA
|
B-1
|
Aggregate Cash Increase
|
B-4
|
Agreement
|
B-1
|
ALLL
|
B-27
|
Bank Merger
|
B-2
|
Bankruptcy and Equity
Exceptions
|
B-9
|
Book-Entry Share
|
B-3
|
Burdensome Condition
|
B-42
|
Canceled Shares
|
B-3
|
Change in the Triumph
Recommendation
|
B-40
|
Chosen Courts
|
B-71
|
Claim
|
B-46
|
Closing
|
B-2
|
Closing Date
|
B-2
|
Closing Financial
Statements
|
B-49
|
Confidentiality Agreement
|
B-44
|
Covered Employees
|
B-45
|
DOL
|
B-20
|
Effective Time
|
B-2
|
ESOP
|
B-4
|
Exchange Agent
|
B-5
|
Exchange Fund
|
B-5
|
FDIA
|
B-9
|
FDIC
|
B-11
|
Fractional Share Payment
|
B-4
|
Holders
|
B-5
|
Indemnified Party
|
B-46
|
Independent Contractors
|
B-19
|
IRS
|
B-18
|
Maximum Amount
|
B-47
|
Maximum Merger Consideration
|
B-5
|
Merger
|
B-1
|
Minimum Merger Consideration
|
B-54
|
Money Laundering Laws
|
B-18
|
Old Certificate
|
B-3
|
PBGC
|
B-21
|
Per Share Cash Consideration
|
B-3
|
Permitted Liens
|
B-15
|
Personally Identifiable
Information
|
B-16
|
Pool
|
B-27
|
Proxy Statement/Prospectus
|
B-40
|
Real Property
|
B-15
|
Regulation O
|
B-27
|
Requisite Regulatory
Approvals
|
B-50
|
Sanctioned Countries
|
B-28
|
Sanctions
|
B-28
|
SBD
|
B-29
|
Section 48-23-101
et seq.
|
B-7
|
Simmons
|
B-1
|
Simmons Certificates
|
B-5
|
Simmons SEC Reports
|
B-31
|
Subsidiary Plan of
Merger
|
B-2
|
Surviving Bank
|
B-2
|
Surviving Corporation
|
B-1
|
Systems
|
B-16
|
Takeover Statutes
|
B-26
|
Tax Opinion
|
B-51
|
TBCA
|
B-1
|
TDFI
|
B-8
|
Termination Fee
|
B-69
|
Triumph
|
B-1
|
Triumph Benefit Plan
|
B-21
|
Triumph Contracts
|
B-24
|
Triumph Dissenting
Shareholders
|
B-7
|
Triumph Dissenting
Shares
|
B-7
|
Triumph Recommendation
|
B-40
|
Triumph Regulatory
Agreement
|
B-24
|
Triumph Shareholder
Approval
|
B-8
|
Triumph Stock Option
|
B-4
|
Triumph Stock Option
Payout
|
B-4
|
Triumph’s Shareholders’
Meeting
|
B-40
|
Voting Agreement
|
B-1
|
Voting Agreements
|
B-1
|
Any
singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include,”
“includes” or “including” are used in this Agreement, they shall be deemed followed by the words “without
limitation.” The word “or” shall not be exclusive and “any” means “any and all.” The
words “hereby,” “herein,” “hereof,” “hereunder” and similar terms refer to this
Agreement as a whole and not to any specific Section. All pronouns and any variations thereof refer to the masculine, feminine
or neuter, singular or plural, as the context may require. If a word or phrase is defined, the other grammatical forms of such
word or phrase have a corresponding meaning. A reference to a document, agreement or instrument also refers to all addenda, exhibits
or schedules thereto. A reference to any “copy” or “copies” of a document, agreement or instrument means
a copy or copies that are complete and correct. Unless otherwise specified in this Agreement, all accounting terms used in this
Agreement will be interpreted, and all accounting determinations under this Agreement will be made, in accordance with GAAP. Any
capitalized terms used in any schedule, Exhibit or Disclosure Memorandum but not otherwise defined therein shall have the meaning
set forth in this Agreement. All references to “dollars” or “$” in this Agreement are to United States
dollars. All references to “the transactions contemplated by this Agreement” (or similar phrases) include the transactions
provided for in this Agreement, including the Merger. Any Contract or Law defined or referred to herein or in any Contract that
is referred to herein means such Contract or Law as from time to time amended, modified or supplemented, including (in the case
of Contracts) by waiver or consent and (in the case of Law) by succession of comparable successor Law and references to all attachments
thereto and instruments incorporated therein. The term “made available” means any document or other information that
was (a) provided (whether by physical or electronic delivery) by one Party or its representatives to the other Party or its representatives
at least two Business Days prior to the date hereof, (b) included in the virtual data room (on a continuous basis without subsequent
modification) of a Party at least two Business Days prior to the date hereof, or (c) filed by a Party with the SEC and publicly
available on EDGAR at least two Business Days prior to the date hereof.
(a)
Except as otherwise provided in this Section 10.3, each of the Parties shall bear and pay all direct costs and expenses
incurred by it or on its behalf in connection with the transactions contemplated hereunder, including filing, registration and
application fees, printing and mailing fees, and fees and expenses of its own financial or other consultants, investment bankers,
accountants, and counsel, except that each of the Parties shall bear and pay one-half of the filing fees payable in connection
with the Registration Statement and the Proxy Statement/Prospectus and printing costs incurred in connection with the printing
of the Registration Statement and the Proxy Statement/Prospectus.
(b)
Notwithstanding the foregoing, if:
|
(i)
|
(A)
either Triumph or Simmons terminates this Agreement pursuant to (1) Section 9.1(b)(ii)
or (2) Section 9.1(c), or (B) Simmons terminates this Agreement pursuant to Section 9.1(e),
and, in each case, within 12 months of such termination Triumph shall either (x) consummate
an Acquisition Transaction or (y) enter into an Acquisition Agreement with respect to
an Acquisition Transaction, whether or not such Acquisition Transaction is subsequently
consummated; or
|
|
(ii)
|
Simmons
shall terminate this Agreement pursuant to Section 9.1(d),
|
then
Triumph shall pay to Simmons an amount equal to $6,500,000 (the “Termination Fee”). If the Termination Fee
shall be payable pursuant to subsection (i) of this Section 10.3(b), the Termination Fee shall be paid in same-day funds at or
prior to the earlier of the date of consummation of such Acquisition Transaction or the date of execution of an Acquisition Agreement
with respect to such Acquisition Transaction. If the Termination Fee shall be payable pursuant to subsection (ii) of this Section
10.3(b), the Termination Fee shall be paid in same-day funds within two Business Days from the date of termination of this Agreement.
(c)
The payment of the Termination Fee by Triumph pursuant to Section 10.3(b) constitutes liquidated damages and not a penalty,
and shall be the sole monetary remedy of Simmons, in the event of termination of this Agreement pursuant to Sections 9.1(b)(ii),
9.1(c), 9.1(d) or 9.1(e). The Parties acknowledge that the agreements contained in Section 10.3(b) are an integral part of the
transactions contemplated by this Agreement, and that without these agreements, they would not enter into this Agreement; accordingly,
if Triumph fails to pay any fee payable by it pursuant to this Section 10.3 when due, then Triumph shall pay to Simmons its costs
and expenses (including attorneys’ fees) in connection with collecting such fee, together with interest on the amount of
the fee at the prime rate of Citibank, N.A. from the date such payment was due under this Agreement until the date of payment.
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10.4
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Entire
Agreement; No Third-Party Beneficiaries.
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Except
as otherwise expressly provided herein, this Agreement (including the Disclosure Memorandum of each of Triumph and Simmons, the
Exhibits, the schedules, and the other documents and instruments referred to herein) together with the Confidentiality Agreement
and the Voting Agreements constitute the entire agreement between the Parties with respect to the transactions contemplated hereunder
and thereunder and supersedes all prior arrangements or understandings with respect thereto, written or oral. Nothing in this
Agreement (including the documents and instruments referred to herein) expressed or implied, is intended to confer upon any Person,
other than the Parties or their respective successors, any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, other than as specifically provided in Section 7.9. The representations and warranties in this Agreement are the
product of negotiations among the Parties and are for the sole benefit of the Parties. Any inaccuracies in such representations
and warranties are subject to waiver by the Parties in accordance herewith without notice or liability to any other Person. In
some instances, the representations and warranties in this Agreement may represent an allocation among the Parties of risks associated
with particular matters regardless of the knowledge of any of the Parties. Consequently, Persons other than the Parties may not
rely upon the representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the
date of this Agreement or as of any other date. Notwithstanding any other provision hereof to the contrary, no consent, approval
or agreement of any third-party beneficiary will be required to amend, modify to waive any provision of this Agreement.
To
the extent permitted by Law, this Agreement may be amended by a subsequent writing signed by each of the Parties upon the approval
of each of the Parties, whether before or after the Triumph Shareholder Approval has been obtained; provided, that after obtaining
the Triumph Shareholder Approval, there shall be made no amendment that requires further approval by such Triumph shareholders.
At
any time prior to the Effective Time, the Parties, by action taken or authorized by their respective boards of directors, may,
to the extent permitted by Law, (a) extend the time for the performance of any of the obligations or other acts of the other Parties,
(b) waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto,
and (c) waive compliance with any of the agreements or satisfaction of any conditions contained herein; provided, that after the
Triumph Shareholder
Approval has been obtained, there may not be, without further approval of such shareholders, any extension
or waiver of this Agreement or any portion thereof that requires further approval under applicable Law. Any agreement on the part
of a Party to any such extension or waiver shall be valid only if set forth in a written instrument signed on behalf of such Party,
but such extension or waiver or failure to insist on strict compliance with an obligation, covenant, agreement or condition shall
not operate as a waiver of, or estoppel with respect to, any subsequent or other failure to comply with an obligation, covenant,
agreement or condition.
Except
as expressly contemplated hereby, neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned
by any Party (whether by operation of Law or otherwise) without the prior written consent of the other Party. Any purported assignment
in contravention hereof shall be null and void. Subject to the preceding sentences, this Agreement will be binding upon, inure
to the benefit of and be enforceable by the Parties and their respective successors and assigns.
All
notices or other communications which are required or permitted hereunder shall be in writing and sufficient if delivered by hand,
by facsimile transmission (followed by overnight courier), by registered or certified mail, postage pre-paid, or by courier or
overnight carrier, or by email (with receipt confirmed) to the persons at the addresses set forth below (or at such other address
as may be provided hereunder), and shall be deemed to have been delivered as of the date so delivered:
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Simmons:
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Simmons
First National Corporation
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Facsimile
Number: (501) 558-3145
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Attention:
George Makris, Jr.
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Email:
george.makris@simmonsbank.com
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With
a Copy to:
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Simmons
First National Corporation
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601
E. 3rd Street, 12th Floor
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Facsimile
Number: (501) 558-3145
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Attention:
George Makris III
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Email:
george.a.makris@simmonsbank.com
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Copy
to Counsel:
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Covington
& Burling LLP
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One
CityCenter
850 Tenth Street NW
Washington, DC 20001
Facsimile Number: (202) 778-5986
Attention: Frank M. Conner III
Email: rconner@cov.com;
Attention:
Christopher J. DeCresce
Email:
cdecresce@cov.com;
Attention:
Charlotte May
Email:
cmay@cov.com
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Triumph:
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Hilliard
R. Crews, Jr.
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Email:
hilliard@crewsinc.com
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Copy
to Counsel:
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Farris
Bobango PLC
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999
South Shady Grove Road, Suite 500
Memphis, TN 38120
Facsimile Number: (901) 259-7180
Attention: John A. Bobango
Email: jab@farris-law.com
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10.9
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Governing
Law; Jurisdiction; Waiver of Jury Trial
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(a) The
Parties agree that this Agreement shall be governed by and construed in all respects in accordance with the Laws of the State
of Arkansas without regard to any conflict of Laws or choice of Law principles that might otherwise refer construction or interpretation
of this Agreement to the substantive Law of another jurisdiction (except that matters relating to the fiduciary duties of the
board of directors of Triumph shall be subject to the Laws of the State of Tennessee).
(b) Each
Party agrees that it will bring any action or proceeding in respect of any claim arising out of or related to this Agreement or
the transactions contemplated hereby exclusively in any federal or state court of competent jurisdiction located in the State
of Arkansas (the “Chosen Courts”), and, solely in connection with claims arising under this Agreement or the
transactions that are the subject of this Agreement, (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts,
(ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii) waives any objection that
the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party, and (iv) agrees that service of process
upon such party in any such action or proceeding will be effective if notice is given in accordance with Section 10.8.
(c) EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR OTHER PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES
THAT: (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND
HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH PARTY HAS BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.9.
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10.10
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Counterparts;
Signatures.
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This
Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together
shall constitute one and the same instrument. This Agreement and any signed agreement or instrument entered into in connection
with this Agreement, and any amendments or waivers hereto or thereto, to the extent signed and delivered by means of a facsimile
machine or by email delivery of a “.pdf” format data file, shall be treated in all manner and respects as an original
agreement or instrument and shall be
considered to have the same binding legal effect as if it were the original signed version
thereof delivered in person. No Party or to any such agreement or instrument shall raise the use of a facsimile machine or e-mail
delivery of a “.pdf” format data file to deliver a signature to this Agreement or any amendment or waiver hereto or
any agreement or instrument entered into in connection with this Agreement or the fact that any signature or agreement or instrument
was transmitted or communicated through the use of a facsimile machine or e-mail delivery of a “.pdf” format data
file as a defense to the formation of a contract and each Party forever waives any such defense.
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10.11
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Captions;
Articles and Sections.
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The
captions contained in this Agreement are for reference purposes only and are not part of this Agreement. Unless otherwise indicated,
all references to particular Articles or Sections shall mean and refer to the referenced Articles and Sections of this Agreement.
Neither
this Agreement nor any uncertainty or ambiguity herein shall be construed or resolved against any Party, whether under any rule
of construction or otherwise. No Party shall be considered the draftsman. The Parties acknowledge and agree that this Agreement
has been reviewed, negotiated, and accepted by all Parties and their attorneys and, unless otherwise defined herein, the words
used shall be construed and interpreted according to their ordinary meaning so as fairly to accomplish the purposes and intentions
of all Parties.
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10.13
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Enforcement
of Agreement.
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The
Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement was not performed
in accordance with its specific terms or was otherwise breached and that money damages would be both incalculable and an insufficient
remedy for any breach of this Agreement. It is accordingly agreed that the Parties shall be entitled, without the requirement
of posting bond, to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy
to which they are entitled at law or in equity. Each of the Parties waives any defense in any action for specific performance
that a remedy at law would be adequate.
Any
term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions
of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other
jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be
only so broad as is enforceable.
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10.15
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Confidential
Supervisory Information.
|
Notwithstanding
any other provision of this Agreement, no disclosure, representation or warranty shall be made (or other action taken) pursuant
to this Agreement that would involve the disclosure of confidential supervisory information as defined in 12 C.F.R. § 261.2(b)
of a Regulatory Authority by any Party to the extent prohibited by applicable Law. To the extent legally permissible, appropriate
substitute disclosures or actions shall be made or taken under circumstances in which the limitations of the preceding sentence
apply.
[Signatures
on following page.]
IN
WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on its behalf by its duly authorized officers
as of the day and year first above written.
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SIMMONS
FIRST NATIONAL CORPORATION
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By:
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/s/
George A. Makris, Jr.
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Name: George A. Makris,
Jr.
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Title: Chairman and Chief
Executive Officer
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TRIUMPH
BANCSHARES, INC.
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By:
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/s/
Hilliard Crews
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Name: Hilliard Crews
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Title: Chairman
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[Signature Page to
Agreement and Plan of Merger]
ANNEX C
SUPPORT
AND NON-COMPETITION AGREEMENT
This
SUPPORT AND NON-COMPETITION AGREEMENT, dated as of [●], 2021 (this “Agreement”), by and among Simmons
First National Corporation, an Arkansas corporation (“Simmons”), Simmons Bank, an Arkansas state-chartered
bank and wholly owned subsidiary of Buyer (“Simmons Bank”), Landmark Community Bank (“Landmark”),
a Tennessee state-chartered bank, and the undersigned [shareholder][officer][director] (the “Individual”) of
Landmark.
W
I T N E S S E T H:
WHEREAS,
concurrently with the execution of this Agreement, Simmons, Simmons Bank and Landmark are entering into an Agreement and Plan
of Merger, dated as of the date hereof (as amended, supplemented, restated or otherwise modified from time to time, the “Merger
Agreement”), pursuant to which, among other things, Landmark will merge with and into Simmons Bank, with Simmons Bank
as the surviving bank (the “Merger”);
WHEREAS,
as of the date hereof, the Individual is a [shareholder][officer][director] of Landmark and has Beneficial Ownership of, in the
aggregate, those shares of common stock, no par value, of Landmark (“Landmark Common Stock”) specified on Schedule
1 attached hereto, which, by virtue of the Merger, will be converted into the right to receive shares of common stock, $0.01
par value per share, of Simmons (“Simmons Common Stock”), and therefore the Merger is expected to be of substantial
benefit to the Individual;
WHEREAS,
as a material inducement to Simmons and Simmons Bank entering into the Merger Agreement, Simmons has requested that the Individual
agree, and the Individual has agreed, to enter into this Agreement and abide by the covenants and obligations set forth herein;
and
WHEREAS,
other individuals, as a material inducement to Simmons and Simmons Bank entering into the Merger Agreement, will enter into and
abide by the covenants and obligations set forth in substantially similar support and non-competition agreements.
NOW
THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements herein contained,
and intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE
I
General
1.1. Defined Terms. The following capitalized terms, as used in this Agreement, shall have the meanings set forth below.
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed thereto in the Merger Agreement.
“Affiliate”
of a Person means any other Person directly, or indirectly through one or more intermediaries, controlling, controlled by or under
common control with such Person.
“Beneficial
Ownership” by a Person of any securities means ownership by any Person who, directly or indirectly, through any contract,
arrangement, understanding, relationship or otherwise, has or shares (i) voting power which includes the power to vote, or to
direct the voting of, such security; and/or (ii) investment power which includes the power to dispose, or to direct the disposition,
of such security; and shall otherwise be interpreted in accordance with the term “beneficial ownership” as defined
in Rule 13d-3 adopted by the Securities
and Exchange Commission under the Securities Exchange Act of 1934, as amended; provided,
that for purposes of determining Beneficial Ownership, a Person shall be deemed to be the Beneficial Owner of any securities which
such Person has, at any time during the term of this Agreement, the right to acquire pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise (irrespective of whether
the right to acquire such securities is exercisable immediately or only after the passage of time, including the passage of time
in excess of 60 days, the satisfaction of any conditions, the occurrence of any event or any combination of the foregoing). The
terms “Beneficially Own” and “Beneficially Owned” shall have a correlative meaning.
“Business”
means the business of acting as a commercial, community or retail banking business, including but not limited to entities which
lend money and take deposits.
“control”
(including the terms “controlling”, “controlled by” and “under common control
with”), with respect to the relationship between or among two or more Persons, means the possession, directly or
indirectly, of the power to direct or cause the direction of the affairs or management of a Person, whether through the ownership
of voting securities, as trustee or executor, by Contract or any other means.
“Constructive
Sale” means, with respect to any security, a short sale with respect to such security, entering into or acquiring an
offsetting derivative Contract with respect to such security, entering into or acquiring a futures or forward Contract to deliver
such security or entering into any other hedging or other derivative transaction that has the effect of either directly or indirectly
materially changing the economic benefits and risks of ownership of any security.
“Covered
Shares” means, with respect to the Individual, the Individual’s Existing Shares, together with any shares of Landmark
Common Stock or other capital stock of Landmark and any securities convertible into or exercisable or exchangeable for shares
of Landmark Common Stock or other capital stock of Landmark, in each case that the Individual acquires Beneficial Ownership of
on or after the date hereof.
“Encumbrance”
means any security interest, pledge, mortgage, lien (statutory or other), charge, option to purchase, lease or other right to
acquire any interest or any claim, restriction, covenant, title defect, hypothecation, assignment, deposit arrangement or other
encumbrance of any kind or any preference, priority or other security agreement or preferential arrangement of any kind or nature
whatsoever (including any conditional sale or other title retention agreement), excluding restrictions under securities Laws.
“Existing
Shares” means, with respect to the Individual, all shares of Landmark Common Stock Beneficially Owned by the Individual
as specified on Schedule 1 hereto.
“Permitted
Transfer” means a Transfer (i) as the result of the death of the Individual by the Individual to a descendant, heir,
executor, administrator, testamentary trustee, lifetime trustee or legatee of the Individual, (ii) Transfers to Affiliates (including
trusts) and family members in connection with estate and tax planning purposes, and (iii) Transfers to any other shareholder and
director and/or executive officer of Landmark who has executed a copy of this Agreement or a support and non-competition agreement
identical to this Agreement on the date hereof; provided, that in each case prior to the effectiveness of such Transfer, such
transferee executes and delivers to Simmons and Landmark an agreement that is identical to this Agreement or such other written
agreement, in form and substance acceptable to Simmons and Landmark, to assume all of Individual’s obligations hereunder
in respect of the Covered Shares subject to such Transfer and to be bound by the terms of this Agreement, with respect to the
Covered Shares subject to such Transfer, to the same extent as the Individual is bound hereunder and to make each of the representations
and warranties hereunder in respect of the Covered Shares Transferred as the Individual shall have made hereunder.
“Person”
means a natural person or any legal, commercial or governmental entity, such as, but not limited to, a corporation, general partnership,
joint venture, limited partnership, limited liability company, limited liability partnership, trust, business association, group
acting in concert, or any person acting in a Representative capacity.
“Representatives”
means, with respect to any Person, any officer, director, employee, investment banker, financial or other advisor, attorney, auditor,
accountant, consultant, or other representative or agent of or engaged or retained by such Person.
“Restricted
Period” has the meaning set forth in Section 2.3(a) hereof.
“Transfer”
means, with respect to any security, the direct or indirect assignment, sale, transfer, tender, exchange, pledge, hypothecation,
or the grant, creation or suffrage of an Encumbrance in or upon, or the gift, placement in trust, or the Constructive Sale or
other disposition of such security (including transfers by testamentary or intestate succession or otherwise by operation of Law)
or any right, title or interest therein (including, but not limited to, any right or power to vote to which the holder thereof
may be entitled, whether such right or power is granted by proxy or otherwise), or the record or Beneficial Ownership thereof,
the offer to make such a sale, transfer, Constructive Sale or other disposition, and each agreement, arrangement or understanding,
whether or not in writing, to effect any of the foregoing (other than a proxy for the purpose of voting the Individual’s
Covered Shares in accordance with Section 2.1 hereof).
ARTICLE
II
COVENANTS OF INDIVIDUAL
2.1. Agreement
to Vote. The Individual hereby irrevocably and unconditionally agrees that during the term of this Agreement, at Landmark’s
Shareholders’ Meeting or at any other meeting of the shareholders of Landmark, however called, including any adjournment
or postponement thereof, and in connection with any written consent of the shareholders of Landmark, the Individual shall, in
each case to the fullest extent that such matters are submitted for the vote or written consent of the Individual and that the
Covered Shares are entitled to vote thereon or consent thereto:
(a) appear
at each such meeting or otherwise cause the Covered Shares as to which the Individual controls the right to vote to be counted
as present thereat for purposes of calculating a quorum; and
(b) vote
(or cause to be voted), in person or by proxy, or deliver (or cause to be delivered) a written consent covering, all of the Covered
Shares as to which the Individual controls the right to vote:
(i) in
favor of the adoption and approval of the Merger Agreement and the consummation of the transactions contemplated thereby, including
the Merger, and any actions required in furtherance thereof;
(ii) against
any action or agreement that could result in a breach of any covenant, representation or warranty or any other obligation of Landmark
under the Merger Agreement;
(iii) against any Acquisition Proposal; and
(iv) against
any action, agreement, amendment to any agreement or organizational document, transaction, matter or proposal submitted for the
vote or written consent of the shareholders of Landmark that is intended or would reasonably be expected to impede, interfere
with, prevent, delay, postpone, discourage, disable, frustrate the purposes of or adversely affect the Merger or the other transactions
contemplated by the Merger Agreement or this Agreement or the performance by
Landmark of its obligations under the Merger Agreement
or by the Individual of his or her obligations under this Agreement.
2.2. No
Inconsistent Agreements. The Individual hereby covenants and agrees that, except for this Agreement, the Individual (a) has
not entered into, and shall not enter into at any time while this Agreement remains in effect, any voting agreement or voting
trust or any other Contract with respect to the Covered Shares, (b) has not granted, and shall not grant at any time while this
Agreement remains in effect, a proxy, Consent or power of attorney with respect to the Covered Shares, (c) will not commit any
act, except for Permitted Transfers, that could restrict or affect his or her legal power, authority and right to vote any of
the Covered Shares then held of record or Beneficially Owned by the Individual or otherwise prevent or disable the Individual
from performing any of his or her obligations under this Agreement, and (d) has not taken and shall not take any action that would
make any representation or warranty of the Individual contained herein untrue or incorrect or have the effect of impeding, interfering
with, preventing, delaying, postponing, discouraging, disabling or adversely affecting the Individual’s performance of any
of his or her obligations under this Agreement.
2.3. Non-Competition.
(a) The Individual hereby covenants and agrees that, for a period commencing on the Closing Date and terminating on the second
anniversary of the Closing Date (the “Restricted Period”), such Individual shall not within 50 miles of any
branch or other office of Landmark in operation as of the date of this Agreement, directly or indirectly, either for him or herself
or for any other Person other than for Simmons or its Affiliates, participate in any business (including, without limitation,
any division, group or franchise of a larger organization) that engages (or proposes to engage) in the Business; provided, that
if as of the date hereof the Individual holds not more than a 5% direct or indirect equity interest in such Person, then the Individual
may retain (but not increase) such ownership interest without being deemed to “participate” in the Business conducted
by such Person. For purposes of this Agreement, the term “participate” shall mean having more than 5% direct or indirect
ownership interest in any Person, whether as a sole proprietor, investor, owner, equity holder, partner, member, manager, joint
venturer, creditor or otherwise, or rendering any direct or indirect service or assistance to any Person (whether as a director,
officer, manager, member, supervisor, employee, agent, consultant or otherwise), with respect to the Business.
(b) The
Individual covenants and agrees that during the Restricted Period, the Individual shall not directly or indirectly, as employee,
agent, consultant, director, equity holder, member, manager, partner or in any other capacity, without Simmons’s prior written
consent (other than for the benefit of Simmons or its Affiliates), solicit, call upon, communicate with or attempt to communicate
(whether by mail, telephone, electronic mail, personal meeting or any other means, excluding general solicitations of the public
that are not based in whole or in part on any list of customers of Landmark or any of its Affiliates) with any Person that is
or was a customer of Landmark or any of its Affiliates during the one-year period preceding the Closing Date for the purpose of
engaging in opportunities related to the Business or contracts related to the Business or, except in the ordinary course of conducting
the business described in Schedule 2, interfere with or damage (or attempt to interfere with or damage) any relationship
between Landmark or its Affiliates and any such customers.
(c) The
Individual covenants and agrees that during the Restricted Period, such Individual shall not directly or indirectly, as employee,
agent, consultant, director, equity holder, member, manager, partner or in any other capacity, without Simmons’ prior written
consent, employ, engage, recruit, hire, solicit or induce, or cause others to solicit or induce, for employment or engagement,
any employee of Landmark or its Affiliates (excluding general solicitations of the public that are not based on any list of, or
directed at, employees of Landmark or its Affiliates).
ARTICLE
III
REPRESENTATIONS AND WARRANTIES
3.1. Representations
and Warranties of the Individual. The Individual hereby represents and warrants to Landmark and Simmons as follows:
(a) Organization;
Authorization; Validity of Agreement; Necessary Action. The Individual has the requisite power, capacity and authority to
execute and deliver this Agreement, to perform his or her obligations hereunder and to consummate the transactions contemplated
hereby. This Agreement has been duly and validly executed and delivered by the Individual and, assuming this Agreement constitutes
a valid and binding obligation of the other parties hereto, constitutes a legal, valid and binding obligation of the Individual,
enforceable against him or her in accordance with its terms (except as may be limited by the Bankruptcy and Equity Exceptions).
(b) Ownership.
Except for the Covered Shares, the Individual is not the Beneficial Owner or registered owner of any other shares of Landmark
Common Stock or rights to acquire Landmark Common Stock. The Existing Shares are, and all of the Covered Shares owned by the Individual
from the date hereof through and on the Closing Date will be, Beneficially Owned and owned of record by the Individual except
to the extent such Covered Shares are Transferred after the date hereof pursuant to a Permitted Transfer. From the date hereof
through and on the Closing Date, the Individual has and will have good and marketable title to the Existing Shares, free and clear
of any Encumbrances. As of the date hereof, the Individual has and will have at all times through the Closing Date sole voting
power (including the right to control such vote as contemplated herein), sole power of disposition, sole power to issue instructions
with respect to the matters set forth in ARTICLE II
hereof, and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Individual’s
Existing Shares and with respect to all of the Covered Shares owned by the Individual at all times through the Closing Date. The
Individual has possession of an outstanding certificate or outstanding certificates representing all of the Covered Shares (other
than Covered Shares held in book-entry form) and such certificate or certificates does or do not contain any legend or restriction
inconsistent with the terms of this Agreement, the Merger Agreement or the transactions contemplated hereby and thereby.
(c) No
Violation. The execution and delivery of this Agreement by the Individual does not, and the performance by the Individual
of his or her obligations under this Agreement and the consummation by him or her of the transactions contemplated hereby will
not, (i) conflict with or violate, or require any Consent pursuant to any Law or Order applicable to the Individual or by which
any of his or her Assets is bound, or (ii) conflict with, result in any Default, require any Consent pursuant to or result in
the creation of any Encumbrance on the Assets of the Individual pursuant to, any Contract to which the Individual is a party or
by which the Individual or any of his or her Assets or Covered Shares are bound.
(d) Consents
and Approvals. No Consent of the Individual’s spouse is necessary under any “community property” or other
Laws in order for the Individual to enter into and perform his or her obligations under this Agreement.
(e) Legal
Proceedings. There is no Litigation pending or, to the knowledge of the Individual, threatened against or affecting the Individual
or any of his or her Affiliates that could reasonably be expected to impair the ability of the Individual to perform his or her
obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.
(f) Reliance
by Simmons. The Individual understands and acknowledges that Simmons and Simmons Bank are entering into the Merger Agreement
in reliance upon the Individual’s execution and delivery of this Agreement and the representations and warranties of Individual
contained herein.
ARTICLE
IV
OTHER COVENANTS
4.1. Prohibition
on Transfers; Other Actions.
(a) Until
the earlier of the receipt of the Landmark Shareholder Approval or the date on which the Merger Agreement is terminated in accordance
with its terms, the Individual hereby agrees not to (i) Transfer any of the Covered Shares or any other interest specifically
in the Covered Shares unless such Transfer is a Permitted Transfer; (ii) enter into any Contract with any Person, or take any
other action, that violates or conflicts with or would reasonably be expected to violate or conflict with, or result in or give
rise to a violation of or conflict with, the Individual’s representations, warranties, covenants and obligations under this
Agreement; (iii) except as otherwise permitted by this Agreement or by Order, take any action that could restrict or otherwise
affect the Individual’s legal power, authority and right to vote all of the Covered Shares then Beneficially Owned by him
or her in accordance with this Agreement, or otherwise comply with and perform his or her covenants and obligations under this
Agreement; or (iv) publicly announce any intention to do any of the foregoing. Any Transfer in violation of this provision shall
be void. Following the date hereof, Landmark shall notify its transfer agent that there is a stop transfer order with respect
to all of the Covered Shares until the termination of this Agreement and that this Agreement places limits on the voting of the
Covered Shares subject to the provisions of this Agreement.
(b) The
Individual understands and agrees that if the Individual attempts to Transfer, vote or provide any other Person with the authority
to vote any of the Covered Shares other than in compliance with this Agreement, Landmark shall not, and the Individual hereby
unconditionally and irrevocably instructs Landmark to not (i) permit such Transfer on its books and records, (ii) issue a new
certificate representing any of the Covered Shares, or (iii) record such vote unless and until the Individual shall have complied
with the terms of this Agreement.
(c) Statements. The Individual shall not make any statement, written or oral, to the effect that he or she does not
support the Merger or that other shareholders of Landmark should not support the Merger.
4.2. Certain
Events. The Individual agrees that this Agreement and the obligations hereunder shall attach to the Covered Shares and shall
be binding upon any Person to which legal or Beneficial Ownership of the Covered Shares shall pass, whether by operation of Law
or otherwise, including the Individual’s successors or assigns. In the event of a stock split, stock dividend, merger (other
than the Merger), exchange, reorganization, recapitalization or distribution, or any change in the capital structure of Landmark
affecting the Landmark Common Stock, the terms “Existing Shares” and “Covered Shares” shall be deemed
to refer to and include such shares as well as all such additional securities of Landmark and any securities into which or for
which any or all of such securities may be changed or exchanged or which are received in such transaction.
4.3. Notice
of Acquisitions, etc. The Individual hereby agrees to notify Landmark as promptly as practicable (and in any event within
two Business Days after receipt) in writing of (i) the number of any additional shares of Landmark Common Stock or other securities
of Landmark of which the Individual acquires Beneficial Ownership on or after the date hereof and (ii) any proposed Permitted
Transfers of the Covered Shares, Beneficial Ownership thereof or other interest specifically therein.
4.4. Non-Solicit.
In his or her capacity as a shareholder of Landmark, and not in his or her capacity as a [director][officer] of Landmark, the
Individual shall not, and shall use his or her reasonable best efforts to cause his or her Affiliates and each of their respective
Representatives not to, directly or indirectly, (a) solicit, initiate, encourage (including by providing information or assistance),
facilitate or induce any Acquisition Proposal, (b) engage or participate in any discussions or negotiations regarding, or furnish
or cause to be furnished to any Person any information or data in connection with, or take any other action to facilitate any
inquiries or the making of any offer or proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal,
(c) adopt, approve, agree to, accept, endorse or recommend any Acquisition Proposal, (d) solicit proxies or become a “participant”
in a “solicitation” (as such terms are defined in the Exchange Act) with respect to an Acquisition Proposal or otherwise
encourage or assist any party in taking or planning any action that would reasonably be expected to compete with, restrain or
otherwise serve to interfere with or inhibit the timely consummation of the Merger in accordance with the terms of the Merger
Agreement, (e) initiate a shareholders’ vote or action by consent of Landmark’s shareholders with respect to an Acquisition
Proposal, (f) except by reason of this Agreement, become a member of a “group” (as such term is used in Section 13(d)
of the Exchange Act) with respect to any voting securities of Landmark that takes any action in support of an Acquisition Proposal,
or (g) approve, endorse, recommend, agree to or accept, or propose to approve, endorse, recommend, agree to or accept, any Acquisition
Agreement contemplating or otherwise relating to any Acquisition Transaction.
4.5. Waiver
of Appraisal Rights. To the fullest extent permitted by applicable Law, the Individual hereby waives any rights of appraisal
he or she may have under applicable Law.
4.6. Further
Assurances. From time to time, at the request of Simmons and Landmark and without further consideration, the Individual shall
execute and deliver such additional documents and take all such further action as may be reasonably necessary to effect the actions
and consummate the transactions contemplated by this Agreement. Without limiting the foregoing, the Individual hereby authorizes
Simmons, Simmons Bank and Landmark to publish and disclose in any announcement or disclosure related to the Merger Agreement,
including the Proxy Statement/Prospectus, the Individual’s identity and Beneficial Ownership of the Covered Shares and the
nature of the Individual’s obligations under this Agreement.
ARTICLE
V
MISCELLANEOUS
5.1. Termination.
This Agreement shall remain in effect until the earlier to occur of (a) the Closing and (b) the date of termination of the Merger
Agreement in accordance with its terms; provided, that (i) if the Closing occurs, the provisions of Section 2.3 shall survive until the end of the Restricted Period, and (ii) the provisions of ARTICLE V shall survive any termination of
this Agreement. Nothing in this Section 5.1 and no termination of this Agreement shall relieve or otherwise limit any party
of liability for fraud, or willful or intentional breach of this Agreement.
5.2. No
Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Simmons or Landmark any direct or indirect
ownership or incidence of ownership of or with respect to any Covered Shares. All rights, ownership and economic benefits of and
relating to the Covered Shares, if any, shall remain vested in and belong to the Individual, and Simmons or Landmark shall not
have any authority to direct the Individual in the voting or disposition of any of the Covered Shares, except as otherwise provided
herein.
5.3. Notices.
All notices or other communications which are required or permitted hereunder shall be in writing and sufficient if delivered
by hand, by facsimile transmission (followed by overnight courier), by registered or certified mail, postage pre-paid, or by courier
or overnight carrier, or by email (with receipt confirmed) to the persons at the addresses set forth below (or at such other address
as may be provided hereunder), and shall be deemed to have been delivered as of the date so delivered:
(a) Simmons
Simmons or Simmons Bank:
Simmons
First National Corporation
Simmons
Bank
501
Main Street
Pine
Bluff, AR 71601
Facsimile
Number: (501) 558-3145
Attention:
George Makris, Jr.
Email:
george.makris@simmonsbank.com
With
a Copy to:
Simmons
First National Corporation
Simmons
Bank
601
E. 3rd Street, 12th Floor
Little
Rock, AR 72201
Facsimile
Number: (501) 558-3145
Attention:
George Makris III
Email:
george.a.makris@simmonsbank.com
Copy
to counsel:
Covington
& Burling LLP
One
CityCenter
850
Tenth Street, NW
Washington,
DC 20001
Facsimile
Number: (202) 778-5988
Attention:
Frank M. Conner III
Email:
rconner@cov.com;
Attention:
Christopher J. DeCresce
Email:
cdecresce@cov.com;
Attention:
Charlotte May
Email:
cmay@cov.com
(b) Landmark:
Landmark
Community Bank
5880
Ridge Bend Road
Memphis,
TN 38120
Facsimile
Number: (901) 260-2525
Attention:
James P. Farrell
Email:
jakefarrell@landmarkbanktn.com
Copy
to Counsel:
Baker,
Donelson, Bearman, Caldwell & Berkowitz, PC
165
Madison Avenue, Suite 2000
Memphis,
TN 38103
Facsimile
Number: (901) 577-2303
Attention:
Jackie G. Prester
Email:
jprester@bakerdonelson.com
(c) if to the Individual, to those persons indicated on Schedule 1.
5.4. Interpretation.
Neither this Agreement nor any uncertainty or ambiguity herein shall be construed or resolved against any party hereto, whether
under any rule of construction or otherwise. No party to this Agreement shall be considered the draftsman. The parties hereto
acknowledge and agree that this Agreement has been reviewed, negotiated, and accepted by all parties hereto and their attorneys
and, unless otherwise defined herein, the words used shall be construed and interpreted according to their ordinary meaning so
as fairly to accomplish the purposes and intentions of all parties hereto. Section headings of this Agreement are for reference
purposes only and are to be given no effect in the construction or interpretation of this Agreement. All pronouns and any variations
thereof refer to the masculine, feminine or neuter, singular or plural, as the context may require. Whenever the words “include,”
“includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words
“without limitation.”
5.5. Counterparts;
Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same instrument. This Agreement and any signed agreement or instrument entered
into in connection with this Agreement, and any amendments or waivers hereto or thereto, to the extent signed and delivered by
means of a facsimile machine or by e-mail delivery of a “.pdf” format data file, shall be treated in all manner and
respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the
original signed version thereof delivered in person. No Party or to any such agreement or instrument shall raise the use of a
facsimile machine or e-mail delivery of a “.pdf” format data file to deliver a signature to this Agreement or any
amendment or waiver hereto or any agreement or instrument entered into in connection with this Agreement or the fact that any
signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or e-mail delivery
of a “.pdf” format data file as a defense to the formation of a contract and each Party forever waives any such defense.
5.6. Entire
Agreement. This Agreement and, to the extent referenced herein, the Merger Agreement, together with the several agreements
and other documents and instruments referred to herein or therein or annexed hereto or thereto, constitute the entire agreement
between the parties hereto with respect to the transactions contemplated hereunder and thereunder and supersede all prior arrangements
or understandings with respect thereto, written or oral.
5.7. Governing Law; Jurisdiction; Waiver of Jury Trial.
(a) The
parties hereto agree that this Agreement shall be governed by and construed in all respects in accordance with the Laws of the
State of Arkansas without regard to any conflict of Laws or choice of Law principles that might otherwise refer construction or
interpretation of this Agreement to the substantive Law of another jurisdiction.
(b) Each
party hereto agrees that it will bring any action or proceeding in respect of any claim arising out of or related to this Agreement
or the transactions contemplated hereby exclusively in any federal or state court of competent jurisdiction located in the State
of Arkansas (the “Chosen Courts”), and, solely in connection with claims arising under this Agreement or the
transactions that are the subject of this Agreement, (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts,
(ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii) waives any objection that
the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party, and (iv) agrees that service of process
upon such party in any such action or proceeding will be effective if notice is given in accordance with Section 5.3.
(c) EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR OTHER PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES
THAT: (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS
AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH PARTY HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.7.
5.8. Amendment;
Waiver. To the extent permitted by Law, this Agreement may be amended or waived by a subsequent writing signed by each of
the parties hereto upon the approval of each of the parties hereto.
5.9. Enforcement
of Agreement. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was otherwise breached and that money damages would be both
incalculable and an insufficient remedy for any breach of this Agreement. It is accordingly agreed that the parties hereto shall
be entitled, without the requirement of posting bond, to an injunction or injunctions to prevent breaches of this Agreement and
to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this
being in addition to any other remedy to which they are entitled at law or in equity. Each of the parties hereto waives any defense
in any action for specific performance that a remedy at law would be adequate.
5.10. Severability. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall,
as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions
of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision
shall be interpreted to be only so broad as is enforceable.
5.11. Assignment.
Except as expressly contemplated hereby, neither this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any party hereto (whether by operation of Law or otherwise) without the prior written consent of the other parties
hereto. Any purported assignment in contravention hereof shall be null and void. Subject to the preceding sentences, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns.
5.12.
No Third Party Beneficiaries. Nothing in this Agreement (including the documents and instruments referred to herein)
expressed or implied, is intended to confer upon any Person, other than the parties hereto or their respective successors, any
rights, remedies, obligations, or liabilities under or by reason of this Agreement. The representations and warranties in this
Agreement are the product of negotiations among the parties hereto and are for the sole benefit of the parties hereto. Any inaccuracies
in such representations and warranties are subject to waiver by the parties hereto in accordance herewith without notice or liability
to any other Person. In some instances, the representations and warranties in this Agreement may represent an allocation among
the parties hereto of risks associated with particular matters regardless of the knowledge of any of the parties hereto. Consequently,
Persons other than the parties hereto may not rely upon the representations and warranties in this Agreement as characterizations
of actual facts or circumstances as of the date of this Agreement or as of any other date. Notwithstanding any other provision
hereof to the contrary, no Consent, approval or agreement of any third party beneficiary will be required to amend, modify to
waive any provision of this Agreement.
5.13. [Individual Capacity. The Individual is signing this Agreement solely in his or her capacity as a Beneficial Owner
of Nile Common Stock, and nothing herein shall prohibit, prevent or preclude the Individual from taking or not taking any action
in the Individual’s capacity as an [officer][director] of Nile to the extent permitted by the Merger Agreement.]
[Remainder
of this page intentionally left blank]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed (where applicable, by their respective officers or
other authorized Person thereunto duly authorized) as of the date first written above.
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Simmons
First National Corporation
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By:
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Name:
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Title:
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SIMMONS
BANK
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By:
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Name:
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Title:
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Landmark
Community Bank
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By:
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Name:
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Title:
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INDIVIDUAL
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Name:
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[Signature
Page to Support Agreement]
Schedule
1
Number
of Existing Shares and Notice Information
Address for notice:
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Name:
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Street:
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City, State:
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ZIP Code:
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Telephone:
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Fax:
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Email:
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Schedule
2
[None.]
ANNEX D
SUPPORT
AND NON-COMPETITION AGREEMENT
This
SUPPORT AND NON-COMPETITION AGREEMENT, dated as of [●], 2021 (this “Agreement”), by and among Simmons
First National Corporation, an Arkansas corporation (“Simmons”), Triumph Bancshares, Inc. (“Triumph”),
a Tennessee corporation, and the undersigned [shareholder][officer][director] (the “Individual”) of Triumph.
W
I T N E S S E T H:
WHEREAS,
concurrently with the execution of this Agreement, Simmons and Triumph are entering into an Agreement and Plan of Merger, dated
as of the date hereof (as amended, supplemented, restated or otherwise modified from time to time, the “Merger Agreement”),
pursuant to which, among other things, Triumph will merge with and into Simmons, with Simmons as the surviving corporation (the
“Merger”);
WHEREAS,
as of the date hereof, the Individual is a [shareholder][officer][director] of Triumph or Triumph Bank and has Beneficial Ownership
of, in the aggregate, those shares of common stock, $1.00 par value, of Triumph (“Triumph Common Stock”) specified
on Schedule 1 attached hereto, which, by virtue of the Merger, will be converted into the right to receive shares of common
stock, $0.01 par value per share, of Simmons (“Simmons Common Stock”), and therefore the Merger is expected
to be of substantial benefit to the Individual;
WHEREAS,
as a material inducement to Simmons entering into the Merger Agreement, Simmons has requested that the Individual agree, and the
Individual has agreed, to enter into this Agreement and abide by the covenants and obligations set forth herein; and
WHEREAS,
other individuals, as a material inducement to Simmons entering into the Merger Agreement, will enter into and abide by the covenants
and obligations set forth in substantially similar support and non-competition agreements.
NOW
THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements herein contained,
and intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE
I
General
1.1. Defined
Terms. The following capitalized terms, as used in this Agreement, shall have the meanings set forth below. Capitalized terms
used but not otherwise defined herein shall have the meanings ascribed thereto in the Merger Agreement.
“Affiliate”
of a Person means any other Person directly, or indirectly through one or more intermediaries, controlling, controlled by or under
common control with such Person.
“Beneficial
Ownership” by a Person of any securities means ownership by any Person who, directly or indirectly, through any contract,
arrangement, understanding, relationship or otherwise, has or shares (i) voting power which includes the power to vote, or to
direct the voting of, such security; and/or (ii) investment power which includes the power to dispose, or to direct the disposition,
of such security; and shall otherwise be interpreted in accordance with the term “beneficial ownership” as defined
in Rule 13d-3 adopted by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended; provided,
that for purposes of determining Beneficial Ownership, a Person shall be deemed to be the Beneficial Owner of any securities which
such Person has, at any time during the term of this Agreement, the right to acquire pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise (irrespective of whether
the right to acquire such securities is exercisable immediately or only after the passage of time, including the passage of time
in excess of 60 days, the satisfaction of any conditions, the occurrence of any event or any combination of the foregoing). The
terms “Beneficially Own” and “Beneficially Owned” shall have a correlative meaning.
“Business”
means the business of acting as a commercial, community or retail banking business, including but not limited to entities which
lend money and take deposits.
“control”
(including the terms “controlling”, “controlled by” and “under common control
with”), with respect to the relationship between or among two or more Persons, means the possession, directly or
indirectly, of the power to direct or cause the direction of the affairs or management of a Person, whether through the ownership
of voting securities, as trustee or executor, by Contract or any other means.
“Constructive
Sale” means, with respect to any security, a short sale with respect to such security, entering into or acquiring an
offsetting derivative Contract with respect to such security, entering into or acquiring a futures or forward Contract to deliver
such security or entering into any other hedging or other derivative transaction that has the effect of either directly or indirectly
materially changing the economic benefits and risks of ownership of any security.
“Covered
Shares” means, with respect to the Individual, the Individual’s Existing Shares, together with any shares of Triumph
Common Stock or other capital stock of Triumph and any securities convertible into or exercisable or exchangeable for shares of
Triumph Common Stock or other capital stock of Triumph, in each case that the Individual acquires Beneficial Ownership of on or
after the date hereof.
“Encumbrance”
means any security interest, pledge, mortgage, lien (statutory or other), charge, option to purchase, lease or other right to
acquire any interest or any claim, restriction, covenant, title defect, hypothecation, assignment, deposit arrangement or other
encumbrance of any kind or any preference, priority or other security agreement or preferential arrangement of any kind or nature
whatsoever (including any conditional sale or other title retention agreement), excluding restrictions under Securities Laws.
“Existing
Shares” means, with respect to the Individual, all shares of Triumph Common Stock Beneficially Owned by the Individual
as specified on Schedule 1 hereto.
“Permitted
Transfer” means a Transfer (i) as the result of the death of the Individual by the Individual to a descendant, heir,
executor, administrator, testamentary trustee, lifetime trustee or legatee of the Individual, (ii) Transfers to Affiliates (including
trusts) and family members in connection with estate and tax planning purposes, and (iii) Transfers to any other shareholder and
director and/or executive officer of Triumph who has executed a copy of this Agreement or a support and non-competition agreement
identical to this Agreement on the date hereof; provided, that in each case of the foregoing clauses (i) and (ii) prior to the
effectiveness of such Transfer, such transferee executes and delivers to Simmons and Triumph an agreement that is identical to
this Agreement or such other written agreement, in form and substance acceptable to Simmons and Triumph, to assume all of Individual’s
obligations hereunder in respect of the Covered Shares subject to such
Transfer and to be bound by the terms of this Agreement,
with respect to the Covered Shares subject to such Transfer, to the same extent as the Individual is bound hereunder and to make
each of the representations and warranties hereunder in respect of the Covered Shares Transferred as the Individual shall have
made hereunder.
“Person”
means a natural person or any legal, commercial or governmental entity, such as, but not limited to, a corporation, general partnership,
joint venture, limited partnership, limited liability company, limited liability partnership, trust, business association, group
acting in concert, or any person acting in a Representative capacity.
“Representatives”
means, with respect to any Person, any officer, director, employee, investment banker, financial or other advisor, attorney, auditor,
accountant, consultant, or other representative or agent of or engaged or retained by such Person.
“Restricted
Period” has the meaning set forth in Section 2.3(a) hereof.
“Transfer”
means, with respect to any security, the direct or indirect assignment, sale, transfer, tender, exchange, pledge, hypothecation,
or the grant, creation or suffrage of an Encumbrance in or upon, or the gift, placement in trust, or the Constructive Sale or
other disposition of such security (including transfers by testamentary or intestate succession or otherwise by operation of Law)
or any right, title or interest therein (including, but not limited to, any right or power to vote to which the holder thereof
may be entitled, whether such right or power is granted by proxy or otherwise), or the record or Beneficial Ownership thereof,
the offer to make such a sale, transfer, Constructive Sale or other disposition, and each agreement, arrangement or understanding,
whether or not in writing, to effect any of the foregoing (other than a proxy for the purpose of voting the Individual’s
Covered Shares in accordance with Section 2.1 hereof).
ARTICLE
II
COVENANTS OF INDIVIDUAL
2.1. Agreement
to Vote. The Individual hereby irrevocably and unconditionally agrees that during the term of this Agreement, at Triumph’s
Shareholders’ Meeting or at any other meeting of the shareholders of Triumph, however called, including any adjournment
or postponement thereof, and in connection with any written consent of the shareholders of Triumph, the Individual shall, in each
case to the fullest extent that such matters are submitted for the vote or written consent of the Individual and that the Covered
Shares are entitled to vote thereon or consent thereto:
(a) appear
at each such meeting or otherwise cause the Covered Shares as to which the Individual controls the right to vote to be counted
as present thereat for purposes of calculating a quorum; and
(b) vote (or cause to be voted), in person or by proxy, or deliver (or cause to be delivered) a written consent covering, all
of the Covered Shares as to which the Individual controls the right to vote:
(i) in
favor of the adoption and approval of the Merger Agreement and the consummation of the transactions contemplated thereby, including
the Merger, and any actions required in furtherance thereof;
(ii) against
any action or agreement that could result in a breach of any covenant, representation or warranty or any other obligation of Triumph
under the Merger Agreement;
(iii) against
any Acquisition Proposal; and
(iv) against
any action, agreement, amendment to any agreement or organizational document, transaction, matter or proposal submitted for the
vote or written consent of the shareholders of Triumph that is intended or would reasonably be expected to impede, interfere with,
prevent, delay, postpone, discourage, disable, frustrate the purposes of or adversely affect the Merger or the other transactions
contemplated by the Merger Agreement or this Agreement or the performance by Triumph of its obligations under the Merger Agreement
or by the Individual of his or her obligations under this Agreement.
2.2. No
Inconsistent Agreements. The Individual hereby covenants and agrees that, except for this Agreement, the Individual (a) has
not entered into, and shall not enter into at any time while this Agreement remains in effect, any voting agreement or voting
trust or any other Contract with respect to the Covered Shares, (b) has not granted, and shall not grant at any time while this
Agreement remains in effect, a proxy, Consent or power of attorney in contravention of the obligations of the Individual under
this Agreement with respect to the Covered Shares, (c) will not commit any act, except for Permitted Transfers, that could restrict
or affect his or her legal power, authority and right to vote any of the Covered Shares then held of record or Beneficially Owned
by the Individual or otherwise prevent or disable the Individual from performing any of his or her obligations under this Agreement,
and (d) has not taken and shall not take any action that would make any representation or warranty of the Individual contained
herein untrue or incorrect or have the effect of impeding, interfering with, preventing, delaying, postponing, discouraging, disabling
or adversely affecting the Individual’s performance of any of his or her obligations under this Agreement.
2.3. Non-Competition.
(a) The
Individual hereby covenants and agrees that, for a period commencing on the Closing Date and terminating on the second anniversary
of the Closing Date (the “Restricted Period”), such Individual shall not within 50 miles of any branch or other
office of Triumph or Triumph Bank in operation as of the date of this Agreement, directly or indirectly, either for him or herself
or for any other Person other than for Simmons or its Affiliates, participate in any business (including, without limitation,
any division, group or franchise of a larger organization) that engages (or proposes to engage) in the Business; provided, that
if as of the date hereof the Individual holds not more than a 5% direct or indirect equity interest in such Person, then the Individual
may retain (but not increase) such ownership interest without being deemed to “participate” in the Business conducted
by such Person and provided, further, nothing in this Section 2.3(a) shall prevent the Individual from engaging as a customer
of any Person. For purposes of this Agreement, the term “participate” shall mean having more than 5% direct or indirect
ownership interest in any Person, whether as a sole proprietor, investor, owner, equity holder, partner, member, manager, joint
venturer, creditor or otherwise, or rendering any direct or indirect service or assistance to any Person (whether as a director,
officer, manager, member, supervisor, employee, agent, consultant or otherwise), with respect to the Business. Further notwithstanding
the foregoing, the limitations set forth above shall not be effective with regard to service by the Individual with respect to
consulting or other professional (but not banking) services in a manner that is consistent with the same kinds of consulting or
other professional services provided by the Individual at any time during the three years prior to the date of this Agreement.
(b) The
Individual covenants and agrees that during the Restricted Period, the Individual shall not directly or indirectly, as employee,
agent, consultant, director, equity holder, member, manager, partner or in any other capacity, without Simmons’s prior written
consent (other than for the benefit of Simmons or its Affiliates), solicit, call upon, communicate with or attempt to communicate
(whether by mail, telephone, electronic mail, personal meeting or any other means, excluding general solicitations of the public
that are not based in whole or in part on any list of customers of Triumph or any of its Affiliates, including Triumph Bank) with
any Person that is or was a customer of Triumph or any of its Affiliates (including Triumph Bank) during the one-year period preceding
the Closing Date for the purpose of engaging in opportunities related to the Business or contracts related to the Business or,
except in the ordinary course of conducting the business described in Schedule 2, interfere with or damage (or attempt
to interfere with or damage) any relationship between Triumph or its Affiliates (including Triumph Bank) and any such customers.
(c) The Individual covenants and agrees that during the Restricted Period, such Individual shall not directly or indirectly,
as employee, agent, consultant, director, equity holder, member, manager, partner or in any other capacity, without Simmons’s
prior written consent, employ, engage, recruit, hire, solicit or induce, or cause others to solicit or induce, for employment
or engagement, any employee of Triumph or its Affiliates (including Triumph Bank) (excluding general solicitations of the public
that are not based on any list of, or directed at, employees of Triumph or its Affiliates (including Triumph Bank)).
ARTICLE
III
REPRESENTATIONS AND WARRANTIES
3.1. Representations
and Warranties of the Individual. The Individual hereby represents and warrants to Triumph and Simmons as follows:
(a) Authorization;
Validity of Agreement; Necessary Action. The Individual has the requisite power, capacity and authority to execute and deliver
this Agreement, to perform his or her obligations hereunder and to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by the Individual and, assuming this Agreement constitutes a valid and binding
obligation of the other parties hereto, constitutes a legal, valid and binding obligation of the Individual, enforceable against
him or her in accordance with its terms (except as may be limited by the Bankruptcy and Equity Exceptions).
(b) Ownership.
Except for the Covered Shares, the Individual is not the Beneficial Owner or registered owner of any other shares of Triumph Common
Stock or rights to acquire Triumph Common Stock. The Existing Shares are, and all of the Covered Shares owned by the Individual
from the date hereof through and on the Closing Date will be, Beneficially Owned and owned of record by the Individual except
to the extent such Covered Shares are Transferred after the date hereof pursuant to a Permitted Transfer. From the date hereof
through and on the Closing Date, the Individual has and will have good and marketable title to the Existing Shares, free and clear
of any Encumbrances other than those created by this Agreement or imposed by applicable Securities Laws. As of the date hereof,
the Individual has and will have at all times through the Closing Date sole voting power (including the right to control such
vote as contemplated herein), sole power of disposition, sole power to issue instructions with respect to the matters set forth
in ARTICLE II hereof, and sole power to agree to all
of the matters set forth in this Agreement, in each case with respect to all of the Individual’s Existing Shares and with
respect to all of the Covered Shares owned by the Individual at all times through the Closing Date. The Individual has possession
of an outstanding certificate or outstanding certificates representing all of the Covered Shares (other than Covered Shares held
in book-entry form) and such certificate or certificates does or do not contain any legend or restriction inconsistent with the
terms of this Agreement, the Merger Agreement or the transactions contemplated hereby and thereby.
(c) No
Violation. The execution and delivery of this Agreement by the Individual does not, and the performance by the Individual
of his or her obligations under this Agreement and the consummation by him or her of the transactions contemplated hereby will
not, (i) conflict with or violate, or require any Consent pursuant to any Law or Order applicable to the Individual or by which
any of his or her Assets is bound, or (ii) conflict with, result in any Default, require any Consent pursuant to or result in
the creation of any Encumbrance on the Assets of the Individual pursuant to, any Contract to which the Individual is a party or
by which the Individual or any of his or her Assets or Covered Shares are bound.
(d) Consents
and Approvals. No Consent of the Individual’s spouse is necessary under any “community property” or other
Laws in order for the Individual to enter into and perform his or her obligations under this Agreement.
(e) Legal
Proceedings. There is no Litigation pending or, to the knowledge of the Individual, threatened against or affecting the Individual
or any of his or her Affiliates that could reasonably be expected to impair the ability of the Individual to perform his or her
obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.
(f) Reliance
by Simmons. The Individual understands and acknowledges that Simmons is entering into the Merger Agreement in reliance upon
the Individual’s execution and delivery of this Agreement and the representations and warranties of Individual contained
herein.
ARTICLE
IV
OTHER COVENANTS
4.1. Prohibition
on Transfers; Other Actions.
(a) Until
the earlier of the receipt of the Triumph Shareholder Approval or the date on which the Merger Agreement is terminated in accordance
with its terms, the Individual hereby agrees not to (i) Transfer any of the Covered Shares or any other interest specifically
in the Covered Shares unless such Transfer is a Permitted Transfer; (ii) enter into any Contract with any Person, or take any
other action, that violates or conflicts with or would reasonably be expected to violate or conflict with, or result in or give
rise to a violation of or conflict with, the Individual’s representations, warranties, covenants and obligations under this
Agreement; (iii) except as otherwise permitted by this Agreement or by Order, take any action that could restrict or otherwise
affect the Individual’s legal power, authority and right to vote all of the Covered Shares then Beneficially Owned by him
or her in accordance with this Agreement, or otherwise comply with and perform his or her covenants and obligations under this
Agreement; or (iv) publicly announce any intention to do any of the foregoing. Any Transfer in violation of this provision shall
be void. Following the date hereof, Triumph shall notify its transfer agent that there is a stop transfer order with respect to
all of the Covered Shares until the termination of this Agreement and that this Agreement places limits on the voting of the Covered
Shares subject to the provisions of this Agreement.
(b) The
Individual understands and agrees that if the Individual attempts to Transfer, vote or provide any other Person with the authority
to vote any of the Covered Shares other than in compliance with this Agreement, Triumph shall not, and the Individual hereby unconditionally
and irrevocably instructs Triumph to not (i) permit such Transfer on its books and records, (ii) issue a new certificate representing
any of the Covered Shares, or (iii) record such vote unless and until the Individual shall have complied with the terms of this
Agreement.
(c) Statements. The Individual shall not make any statement, written or oral, to the effect that he or she does not
support the Merger or that other shareholders of Triumph should not support the Merger.
4.2. Certain
Events. The Individual agrees that this Agreement and the obligations hereunder shall attach to the Covered Shares and shall
be binding upon any Person to which legal or Beneficial Ownership of the Covered Shares shall pass, whether by operation of Law
or otherwise, including the Individual’s successors or assigns. In the event of a stock split, stock dividend, merger (other
than the Merger), exchange, reorganization, recapitalization or distribution, or any change in the capital structure of Triumph
affecting the Triumph Common Stock, the terms “Existing Shares” and “Covered Shares” shall be deemed to
refer to and include such shares as well as all such additional securities of Triumph and any securities into which or for which
any or all of such securities may be changed or exchanged or which are received in such transaction.
4.3. Notice
of Acquisitions, etc. The Individual hereby agrees to notify Triumph as promptly as practicable (and in any event within two
Business Days after receipt) in writing of (i) the number of any additional shares of Triumph Common Stock or other securities
of Triumph of which the Individual acquires Beneficial Ownership on or after the date hereof and (ii) any proposed Permitted Transfers
of the Covered Shares, Beneficial Ownership thereof or other interest specifically therein.
4.4. Non-Solicit.
In his or her capacity as a shareholder of Triumph, and not in his or her capacity as a [director][officer] of Triumph, the Individual
shall not, and shall use his or her reasonable best efforts to cause his or her Affiliates and each of their respective Representatives
not to, directly or indirectly, (a) solicit, initiate, encourage (including by providing information or assistance), facilitate
or induce any Acquisition Proposal, (b) engage or participate in any discussions or negotiations regarding, or furnish or cause
to be furnished to any Person any information or data in connection with, or take any other action to facilitate any inquiries
or the making of any offer or proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, (c)
adopt, approve, agree to, accept, endorse or recommend any Acquisition Proposal, (d) solicit proxies or become a “participant”
in a “solicitation” (as such terms are defined in the Exchange Act) with respect to an Acquisition Proposal or otherwise
encourage or assist any party in taking or planning any action that would reasonably be expected to compete with, restrain or
otherwise serve to interfere with or inhibit the timely consummation of the Merger in accordance with the terms of the Merger
Agreement, (e) initiate a shareholders’ vote or action by consent of Triumph’s shareholders with respect to an Acquisition
Proposal, (f) except by reason of this Agreement, become a member of a “group” (as such term is used in Section 13(d)
of the Exchange Act) with respect to any voting securities of Triumph that takes any action in support of an Acquisition Proposal,
or (g) approve, endorse, recommend, agree to or accept, or propose to approve, endorse, recommend, agree to or accept, any Acquisition
Agreement contemplating or otherwise relating to any Acquisition Transaction.
4.5. Waiver
of Appraisal Rights. To the fullest extent permitted by applicable Law, the Individual hereby waives any rights of appraisal
he or she may have under applicable Law.
4.6. Further
Assurances. From time to time, at the request of Simmons and Triumph and without further consideration, the Individual shall
execute and deliver such additional documents and take all such further action as may be reasonably necessary to effect the actions
and consummate the transactions contemplated by this Agreement. Without limiting the foregoing, the Individual hereby authorizes
Simmons and Triumph to publish and disclose in any announcement or disclosure required by applicable Law related to the Merger
Agreement, including the Proxy Statement/Prospectus, the Individual’s identity and Beneficial Ownership of the Covered Shares
and the nature of the Individual’s obligations under this Agreement.
ARTICLE
V
MISCELLANEOUS
5.1. Termination. This Agreement shall remain in effect until the earlier to occur of (a) the Closing, (b) the date of
termination of the Merger Agreement in accordance with its terms and (c) the termination of this Agreement by mutual written consent
of the parties hereto; provided, that (i) if the Closing occurs, the provisions of Section 2.3 shall survive until the end of the Restricted Period, and (ii) the provisions of ARTICLE V shall survive any termination of
this Agreement. Nothing in this Section 5.1 and no termination of this Agreement shall relieve or otherwise limit any party
of liability for fraud, or willful or intentional breach of this Agreement.
5.2. No
Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Simmons or Triumph any direct or indirect
ownership or incidence of ownership of or with respect to any Covered Shares. All rights, ownership and economic benefits of and
relating to the Covered Shares, if any, shall remain vested in and belong to the Individual, and Simmons or Triumph shall not
have any authority to direct the Individual in the voting or disposition of any of the Covered Shares, except as otherwise provided
herein.
5.3. Notices. All notices or other communications which are required or permitted hereunder shall be in writing and sufficient
if delivered by hand, by facsimile transmission (followed by overnight courier), by registered or certified mail, postage pre-paid,
or by courier or overnight carrier, or by email (with receipt confirmed) to the persons at the addresses set forth below (or at
such other address as may be provided hereunder), and shall be deemed to have been delivered as of the date so delivered:
(a) Simmons:
Simmons
First National Corporation
501
Main Street
Pine
Bluff, AR 71601
Facsimile
Number: (501) 558-3145
Attention:
George Makris, Jr.
Email:
george.makris@simmonsbank.com
with
a copy to:
Simmons
First National Corporation
601
E. 3rd Street, 12th Floor
Little
Rock, AR 72201
Facsimile
Number: (501) 558-3145
Attention:
George Makris III
Email:
george.a.makris@simmonsbank.com
Copy
to counsel:
Covington
& Burling LLP
One
CityCenter
850
Tenth Street, NW
Washington,
DC 20001
Facsimile
Number: (202) 778-5988
Attention:
Frank M. Conner III
Email:
rconner@cov.com;
Attention:
Christopher J. DeCresce
Email:
cdecresce@cov.com;
Attention:
Charlotte May
Email:
cmay@cov.com
(b) Triumph:
Hilliard
R. Crews, Jr.
10001
E. Holmes Rd.
Collierville,
TN 38017
Email:
Hilliard@crewsinc.com
Copy
to Counsel:
Farris
Bobango PLC
999
South Shady Grove Road, Suite 500
Memphis,
TN 38120
Facsimile
Number: (901) 259-7180
Attention:
John A. Bobango
Email:
jab@farris-law.com
(c) if
to the Individual, to those persons indicated on Schedule 1.
5.4. Interpretation.
Neither this Agreement nor any uncertainty or ambiguity herein shall be construed or resolved against any party hereto, whether
under any rule of construction or otherwise. No party to this Agreement shall be considered the draftsman. The parties hereto
acknowledge and agree that this Agreement has been reviewed, negotiated, and accepted by all parties hereto and their attorneys
and, unless otherwise defined herein, the words used shall be construed and interpreted according to their ordinary meaning so
as fairly to accomplish the purposes and intentions of all parties hereto. Section headings of this Agreement are for reference
purposes only and are to be given no effect in the construction or interpretation of this Agreement. All pronouns and any variations
thereof refer to the masculine, feminine or neuter, singular or plural, as the context may require. Whenever the words “include,”
“includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words
“without limitation.”
5.5. Counterparts;
Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same instrument. This Agreement and any signed agreement or instrument entered
into in connection with this Agreement, and any amendments or waivers hereto or thereto, to the extent signed and delivered by
means of a facsimile machine or by e-mail delivery of a “.pdf” format data file, shall be treated in all manner and
respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the
original signed version thereof delivered in person. No Party or to any such agreement or instrument shall raise the use of a
facsimile machine or e-mail delivery of a “.pdf” format data file to deliver a signature to this Agreement or any
amendment or waiver hereto or any agreement or instrument entered into in connection with this Agreement or the fact that any
signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or e-mail delivery
of a “.pdf” format data file as a defense to the formation of a contract and each Party forever waives any such defense.
5.6. Entire
Agreement. This Agreement and, to the extent referenced herein, the Merger Agreement, together with the several agreements
and other documents and instruments referred to herein or therein or annexed hereto or thereto, constitute the entire agreement
between the parties hereto with respect to the transactions contemplated hereunder and thereunder and supersede all prior arrangements
or understandings with respect thereto, written or oral.
5.7. Governing Law; Jurisdiction; Waiver of Jury Trial.
(a) The parties hereto agree that this Agreement shall be governed by and construed in all respects in accordance with the
Laws of the State of Arkansas without regard to any conflict of Laws or choice of Law principles that might otherwise refer construction
or interpretation of this Agreement to the substantive Law of another jurisdiction.
(b) Each
party hereto agrees that it will bring any action or proceeding in respect of any claim arising out of or related to this Agreement
or the transactions contemplated hereby exclusively in any federal or state court of competent jurisdiction located in the State
of Arkansas (the “Chosen Courts”), and, solely in connection with claims arising under this Agreement or the
transactions that are the subject of this Agreement, (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts,
(ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii) waives any objection that
the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party, and (iv) agrees that service of process
upon such party in any such action or proceeding will be effective if notice is given in accordance with Section 5.3.
(c) EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR OTHER PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES
THAT: (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS
AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH PARTY HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.7.
5.8. Amendment;
Waiver. To the extent permitted by Law, this Agreement may be amended or waived by a subsequent writing signed by each of
the parties hereto upon the approval of each of the parties hereto.
5.9. Enforcement of Agreement. The parties hereto agree that irreparable damage would occur in the event that any of
the provisions of this Agreement was not performed in accordance with its specific terms or was otherwise breached and that money
damages would be both incalculable and an insufficient remedy for any breach of this Agreement. It is accordingly agreed that
the parties hereto shall be entitled to seek, without the requirement of posting bond, to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any
state having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity. Each of
the parties hereto waives any defense in any action for specific performance that a remedy at law would be adequate.
5.10. Severability.
Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement
in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
5.11. Assignment.
Except as expressly contemplated hereby, neither this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any party hereto (whether by merger, consolidation or otherwise by operation of Law or otherwise) without the prior
written consent of the other parties hereto. Any purported assignment in contravention hereof shall be null and void. Subject
to the preceding sentences, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties hereto
and their respective successors and assigns.
5.12.
No Third Party Beneficiaries. Nothing in this Agreement (including the documents and instruments referred to herein)
expressed or implied, is intended to confer upon any Person, other than the parties hereto or their respective successors, any
rights, remedies, obligations, or liabilities under or by reason of this Agreement. The representations and warranties in this
Agreement are the product of negotiations among the parties hereto and are for the sole benefit of the parties hereto. Any inaccuracies
in such representations and warranties are subject to waiver by the parties hereto in accordance herewith without notice or liability
to any other Person. In some instances, the representations and warranties in this Agreement may represent an allocation among
the parties hereto of risks associated with particular matters regardless of the knowledge of any of the parties hereto. Consequently,
Persons other than the parties hereto may not rely upon the representations and warranties in this Agreement as characterizations
of actual facts or circumstances as of the date of this Agreement or as of any other date. Notwithstanding any other provision
hereof to the contrary, no Consent, approval or agreement of any third party beneficiary will be required to amend, modify to
waive any provision of this Agreement.
5.13. [Individual Capacity. Notwithstanding anything to the contrary contained in this Agreement, the Individual is signing
this Agreement solely in his or her capacity as a Beneficial Owner of Triumph Common Stock, and nothing herein (a) will limit
or affect any actions or omissions taken by Individual in Individual’s capacity as such a director or officer, as applicable,
of Triumph or its Affiliates, including in exercising rights under the Merger Agreement, and no such actions or omissions shall
be deemed a breach of this Agreement or (b) will be construed to prohibit, limit, restrict, prevent or preclude the Individual
from taking or not taking any action in the Individual’s fiduciary duties as an [officer][director] of Triumph or its Affiliates
or their respective shareholders to the extent permitted by the Merger Agreement.]
[Remainder
of this page intentionally left blank]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed (where applicable, by their respective officers or
other authorized Person thereunto duly authorized) as of the date first written above.
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Simmons
First National Corporation
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By:
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Name:
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Title:
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Triumph
Bancshares, Inc.
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By:
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Name:
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Title:
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INDIVIDUAL
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Name:
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[Signature Page to Support
Agreement]
Schedule
1
Number
of Existing Shares and Notice Information
Address for notice:
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Name:
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Street:
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City, State:
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ZIP Code:
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Telephone:
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Fax:
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Email:
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Schedule
2
[None.]
Annex E
June 4, 2021
Board of Directors
Landmark Community Bank
1015 West Poplar Avenue
Collierville, TN 38017
Members of the Board:
You have
requested our opinion as to the fairness, from a financial point of view, to the shareholders of Landmark Community Bank (“Landmark”
or the “Company”) of the Merger Consideration (as defined below) to be received by the shareholders of the Company
in the proposed merger transaction (the “Transaction”) with Simmons First National Corporation (“SFNC”)
whereby pursuant to the Agreement and Plan of Merger to be dated June 4, 2021 (“the Agreement”), SFNC will acquire
all of the issued and outstanding shares of common stock of Landmark. At the Effective Time, Company shall be merged with and
into Simmons Bank (“Buyer Bank”) with Buyer Bank as the surviving bank in the Transaction. Capitalized terms used
herein without definition have the meanings assigned to them in the Agreement.
“Nile
Common Stock” means the no par value common stock of Landmark Community Bank.
We understand
that each share of Nile Common Stock issued and outstanding immediately prior to the Effective Time (excluding the Canceled Shares
and Nile Dissenting Shares), subject to Section 2.3(b), shall be converted into the right to receive, without interest the Per
Share Cash Consideration and the Per Share Stock Consideration.
“Merger
Consideration” means the sum of (A) the Per Share Cash Consideration, (B) the Per Share Stock Consideration, (C) the Fractional
Share Payment (if any), and (D) any dividends or distributions (if any) pursuant to Section 3.1(d).
“Per
Share Cash Consideration” means the quotient obtained by dividing the Cash Consideration by the Nile Shares Outstanding.
“Per
Share Stock Consideration” means the quotient obtained by dividing the Stock Consideration by the Nile Shares Outstanding.
“Stock
Consideration” means 4,500,000 shares of Buyer Common Stock.
“Aggregate
Cash Consideration” means cash in the amount of $7,000,000.
Notwithstanding
anything herein to the contrary, if the Cash Consideration is less than $0.00, then the Aggregate Cash Consideration shall be
increased such that the Cash Consideration equals $0.00. The amount by which the Aggregate Cash Consideration is increased shall
be referred to as the “Aggregate Cash Increase.” If the Aggregate Cash Consideration is increased, then the Stock
Consideration shall be decreased by the number
of shares of Buyer Common Stock equal to the quotient obtained by dividing the
Aggregate Cash Increase by the Average Closing Price (for the avoidance of doubt, if the quotient includes a fractional share,
the quotient shall be rounded up to the next whole share (for example, if the quotient is 1,000.34, the quotient shall be rounded
up to 1,001)).
1501
M Street, NW │ Suite 250│ Washington, D.C. 20005
202.808.3306
│ www.olsenpalmer.com
Board of Directors
Landmark Community
Bank
June 4, 2021
Page 3
“Cash
Consideration” means the Aggregate Cash Consideration less the Aggregate Stock Option Payout.
Olsen
Palmer LLC is an investment banking firm that has acted as financial advisor to the Company in connection with the Transaction.
Olsen Palmer LLC, as part of its investment banking services, is regularly engaged in the valuation of financial institutions
and their securities in connection with mergers and acquisitions and other corporate transactions. We will receive a fee for our
services pursuant to the terms of our engagement with the Company, a substantial portion of which is contingent upon consummation
of the Transaction. We will also receive a fee for rendering this opinion. The Company has also agreed to indemnify us against
certain liabilities arising out of our engagement.
Olsen
Palmer LLC has not provided investment banking and financial advisory services to the Company or SFNC during the two-year period
prior to the date hereof, except with respect to the Transaction. Olsen Palmer LLC may provide investment banking, financial advisory
and other financial services to the Company and/or SFNC in the future, for which Olsen Palmer LLC may receive compensation.
In connection
with this opinion, we have made such reviews, analyses and inquiries as we have deemed necessary and appropriate under the circumstances.
Among other things, we have reviewed:
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(i)
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a
draft version of the Agreement dated May 31, 2021;
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(ii)
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certain
financial statements and other historical financial information of the Company and SFNC
that we deemed relevant;
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(iii)
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internal
financial projections for the Company for the year ending December 31, 2021 and estimated
long-term annual earnings and balance sheet growth rates for the years ending December
31, 2022, December 31, 2023, December 31, 2024, December 31, 2025, and December 31, 2026
as provided by the Company;
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(iv)
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publicly
available consensus analyst earnings per share estimates for SFNC for the years ending
December 31, 2021, December 31, 2022, and December 31, 2023, as well as estimated dividends
per share and long term earnings per share and asset growth rates for the years thereafter,
as discussed with and confirmed by representatives of SFNC;
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(v)
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a
comparison of certain financial information for the Company with similar institutions
for which publicly available information is available;
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(vi)
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the
financial terms of certain recent business combinations in the commercial banking industry,
to the extent publicly available;
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(vii)
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an
analysis of the relative contribution that the Company and SFNC will make to the combined
company;
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(viii)
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an
estimated range of the intrinsic value of the Company based on internal financial projections
for the Company as provided by the Company;
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(ix)
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the
estimated pro forma financial impact of the merger on SFNC, based on assumptions relating
to transaction expenses, acquisition accounting adjustments, and cost savings as communicated
to Olsen Palmer LLC by representatives of SFNC;
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(x)
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the
current market environment generally and the banking industry in particular; and
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(xi)
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such
other information, financial studies, analyses and investigations and financial, economic
and market criteria as we considered relevant.
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Board of Directors
Landmark Community
Bank
June 4, 2021
Page
4
We also discussed
with certain members of senior management of the Company and its representatives the business, financial condition, results of
operations and prospects of the Company. Olsen Palmer LLC had similar discussions with certain members of senior management of
SFNC and its representatives regarding the business, financial condition, results of operations, and prospects of SFNC.
In performing
our review, and for purposes of rendering our opinion, we have relied upon the accuracy and completeness of all of the financial
and other information that was available to us from public sources, that was provided to us by the Company or SFNC or their representatives
or that was otherwise reviewed by us and have assumed, without independent verification, such accuracy and completeness of all
such information. We have further relied on the assurances of the management of the Company that they are not aware of any facts
or circumstances that would make any of such information inaccurate or misleading. We have not been asked to and have not undertaken
an independent verification of any of such information and we do not assume any responsibility or liability for the accuracy or
completeness thereof. We did not make an independent evaluation or appraisal of any assets, the collateral securing any assets
or the liabilities (contingent or otherwise) of the Company or any of its subsidiaries and no such evaluation or appraisal was
provided to us. We render no opinion or evaluation on the collectability of any assets or the future performance of any loans
of the Company. We did not make an independent evaluation of the adequacy of the allowance for loan losses of the Company, or
the combined entity after the Transaction and we have not reviewed any individual credit files relating to SFNC or the Company.
We have assumed, with your consent, that the allowance for loan losses for both SFNC and the Company is adequate to cover such
losses. We are not experts in the evaluation of allowances for loan and lease losses and have not independently verified such
allowances or reviewed or examined any individual loan or credit files. We assumed, with your consent, that the respective allowances
for loan and lease losses set forth in the financial statements of SFNC and the Company are adequate to cover such losses and
comply fully with applicable law, regulatory policy and sound banking practices as of the date of such financial statements.
We have assumed
in all respects material to our analysis that all of the representations and warranties contained in the Agreement and all related
agreements are true and correct, that each party to the Agreement and all related agreements will perform, in all material respects,
all of the covenants required to be performed by such party thereunder, that the conditions precedent in the Agreement are not
waived and that the Transaction is lawful. We have also assumed that in the course of obtaining any necessary regulatory approvals
for the consummation of the Transaction, no conditions will be imposed that will have a material adverse effect on the combined
entity or contemplated benefits of the Transaction. In addition, we have relied upon and assumed, without independent verification,
that the final form of the Agreement will not differ in any respect from the version of the Agreement identified above. Finally,
with your consent, we have relied upon the advice the Company has received from its legal, accounting and tax advisors as to all
legal, accounting and tax matters relating to the Transaction and the other transactions contemplated by the Agreement, and we
have assumed that all such advice was correct.
Our opinion
is necessarily based on financial, economic, market and other conditions as in effect on, and the information made available to
us as of, the date hereof. Events occurring after the date hereof could materially affect our opinion. We have not undertaken
to update, revise, reaffirm or withdraw this opinion or otherwise comment upon events occurring after the date hereof.
Board of Directors
Landmark Community
Bank
June 4, 2021
Page 5
Our opinion is
directed solely to the Board of Directors of the Company (solely in its capacity as such) in connection with its consideration
of the Transaction and may not be relied upon by any other person or entity (including, without limitation, security holders,
creditors or other constituencies of the Company) or used for any other purpose without our prior written consent. This
Opinion does not constitute a recommendation to the Board of Directors of the Company or to any shareholder of either the Company
or SFNC as to how any such member of such board or any shareholder should vote at any meeting called to consider and vote upon
the Transaction. We express no opinion as to the fairness of the Merger Consideration to the creditors or other constituencies
of the Company. Our opinion is directed only to the fairness, from a financial point of view, of the Merger Consideration to the
shareholders of the Company and does not address the underlying business decision of the Company to engage in the Transaction
or the relative merits of the Transaction as compared to any other alternative business strategies that might exist for the Company.
This opinion should not be construed as creating any fiduciary duty on the part of Olsen Palmer LLC to any party or person. This
opinion shall not be disclosed, reproduced, disseminated, quoted, summarized or referred to at any time, in any manner or for
any purpose, or used for any other purposes, without Olsen Palmer LLC’s prior written consent. This Opinion was not reviewed
or issued by a fairness opinion committee. We have not been requested to opine as to, and this Opinion does not express an opinion
as to or otherwise address, among other things: (i) the fairness of any portion or aspect of the Transaction to any one class
or group of the Company’s or any other party’s security holders or other constituents vis-à-vis any other class
or group of the Company’s or such other party’s security holders or other constituents (including, without limitation,
the allocation of any consideration amongst or within such classes or groups of security holders or other constituents), or (ii)
the fairness, financial or otherwise, of the amount, nature or any other aspect of any compensation to or consideration payable
to or received by any officers, directors or employees of any party to the Transaction, any class of such persons or any other
party, relative to the Merger Consideration or otherwise.
Based
upon and subject to the foregoing, and in reliance thereon, it is our opinion that, as of the date hereof, the Merger Consideration
to be received by the shareholders of the Company for all of the shares of the Nile Common Stock in the Transaction pursuant to
the Agreement is fair, from a financial point of view, to such holders.
Very truly yours,
/s/ Olsen Palmer LLC
Olsen Palmer LLC
Annex F
FAIRNESS
OPINION
AGREEMENT
AND PLAN OF MERGER
BY AND
BETWEEN
SIMMONS
FIRST NATIONAL CORPORATION
AND
TRIUMPH
BANCSHARES, INC.
Report Dated
June 4, 2021
June 4, 2021
Board of Directors of Triumph Bancshares,
Inc.
c/o Mr. Hilliard R. Crews, Jr., Chairman
5699 Poplar Avenue
Memphis, TN 38119
Board of Directors:
Southard Financial,
LLC (“Southard Financial”) was retained by the Board of Directors (the “Board” or the “Client”)
of Triumph Bancshares, Inc., a Tennessee corporation and bank holding company in connection with the merger of Triumph Bancshares,
Inc. with Simmons First National Corporation. Triumph Bancshares, Inc. (“TBI”, the “Company”, or the “Seller”)
is a party to an Agreement and Plan of Merger (the “Merger Agreement”) with Simmons First National Corporation (“SFNC”
or the “Purchaser”). TBI will merge with and into SFNC (the “Merger” or the “Transaction”), with
SFNC as the surviving corporation of the Merger. Simultaneously with the Merger, Triumph Bank (“Triumph” or the “Bank”)
will be merged with and into Simmons Bank (“Simmons”), a subsidiary of the Purchaser. The Bank is domiciled in Memphis,
Tennessee, while Simmons is domiciled in Pine Bluff, Arkansas.
Capitalized
terms used herein without definition shall have the meanings assigned to them in the Merger Agreement. The terms and conditions
of the Merger are more fully set forth in the Merger Agreement. You have requested our Opinion as to the fairness, from a financial
point of view, of the consideration offered to holders of TBI common stock. Southard Financial, as part of its valuation advisory
business, is regularly engaged in the valuation of financial institutions and their securities in connection with mergers and
acquisitions and other corporate transactions.
Southard
Financial reviewed the financial terms of the Merger. Under the terms of the Merger Agreement, holders of TBI common stock are
entitled to receive, in exchange for all outstanding shares of TBI common stock, subject to adjustments outlined in the Merger
Agreement, consideration equal to 4,164,839 shares of SFNC common stock. An additional cash payment of $2,645,938 (in the aggregate,
rounded) will be made to optionholders of TBI. The aggregate implied deal value as of June 4, 2021 (date Merger Agreement was
signed and as reported by S&P Global, Inc.) is shown below.
Total Consideration
|
|
Announced*
|
|
Buyer Shares
|
|
|
4,164,839
|
|
SFNC Price Per Share
|
|
$
|
30.96
|
|
|
|
|
|
|
SFNC Share Consideration
|
|
|
128,943,415
|
|
Cash Consideration
|
|
|
2,645,938
|
|
|
|
|
|
|
Deal Value
|
|
|
131,589,353
|
|
* Based on Closing Price as
of June 4, 2021
|
Board of Directors
Triumph Bancshares, Inc.
Page 3
The Merger Agreement
provides that if, as of the Determination Date, both of the following conditions are satisfied:
|
(i)
|
the
Average Closing Price is greater than $37.28; and
|
|
(ii)
|
the
difference between (A) the quotient obtained by dividing (1) the Average Closing Price
by (2) $31.07 and (B) the quotient obtained by dividing (1) the average of the closing
prices of the Nasdaq Bank Index (as reported in The Wall Street Journal or if not reported
thereby, another alternative source as chosen by Buyer) for the 20 consecutive full trading
days ending on and including the Determination Date by (2) $4,489.83, is greater than
0.20 (or 20%),
|
then the Stock
Consideration shall be decreased by the number of whole shares of Buyer Common Stock so that, as a result of such adjustment,
the sum of (i) the product obtained by multiplying the Stock Consideration by the Average Closing Price and (ii) the Aggregate
Cash Consideration shall be no more than the Maximum Merger Consideration (defined as the sum of (i) the product of (x) $37.28
and (y) the Stock Consideration and (ii) the Aggregate Cash Consideration).
Further, the
Merger Agreement may be terminated and the Merger abandoned at any time prior to the Effective Time by TBI, if the Board so determines
by a vote of at least two-thirds of the members of the entire Board at any time during the five-day period commencing with the
Determination Date, if both of the following conditions are satisfied:
|
(i)
|
the
Average Closing Price is less than $24.85; and
|
|
(ii)
|
the
difference between (A) the quotient obtained by dividing (1) the average of the closing
prices of the Nasdaq Bank Index (as reported in The Wall Street Journal or if not reported
thereby, another alternative source as chosen by Buyer) for the 20 consecutive full trading
days ending on and including the Determination Date by (2) $4,489.83 and (B) the quotient
obtained by dividing (1) the Average Closing Price by (2) $31.07, is greater than 0.20
(or 20%),
|
subject, however,
to the following three sentences. If TBI elects to terminate the Merger Agreement, it shall give written notice to SFNC (provided
that such notice of termination may be withdrawn at any time within the aforementioned five-day period). During the five-day period
commencing with its receipt of such notice, SFNC shall have the option to, in its sole and absolute discretion, elect to increase
the Aggregate Cash Consideration by an amount in cash so that, as a result of such adjustment, the sum of (i) the Aggregate Cash
Consideration and (ii) the Stock Consideration multiplied by the Average Closing Price shall be no less than the Minimum Merger
Consideration. If SFNC so elects within such five-day period, it shall give prompt written notice to TBI of such election and
the revised Aggregate Cash Consideration, whereupon no termination shall have occurred and the Merger Agreement shall remain in
effect in accordance with its terms (except as the Aggregate Cash Consideration shall have been so modified). Minimum Merger Consideration
shall be the sum of (i) the product of (x) $24.85 and (y) the Stock Consideration and (ii) the Aggregate Cash Consideration.
Board of Directors
Triumph Bancshares, Inc.
Page 4
In connection
with rendering its Opinion, Southard Financial reviewed and considered, among other things:
|
·
|
the
Agreement and Plan of Merger dated June 4, 2021;
|
|
·
|
certain
publicly available financial statements and other historical financial information of
TBI that Southard Financial deemed relevant;
|
|
·
|
the
publicly reported historical price and trading activity for SFNC common stock;
|
|
·
|
a
comparison of certain financial information for TBI with similar financial institutions
for which information is publicly available;
|
|
·
|
the
financial terms of certain recent business combinations in the banking industry (on a
regional and nationwide basis), to the extent publicly available;
|
|
·
|
the
current market environment generally and the banking environment in particular; and
|
|
·
|
other
information, financial studies, analyses and investigations, financial, economic, and
market criteria as Southard Financial considered relevant.
|
Southard Financial
also discussed with certain members of the management of TBI and its representatives the business, financial condition, results
of operations, and prospects of TBI.
In performing
its review, Southard Financial relied upon the accuracy and completeness of all of the financial and other information available
to and reviewed by Southard Financial. Southard Financial assumed such accuracy and completeness to render its Opinion without
any independent verification or investigation. Southard Financial relied on the assurances of the management that they were not
aware of any facts or circumstances that would make any of such information inaccurate or misleading. Southard Financial was not
asked to and did not undertake independent verification of any of such information. Southard Financial did not assume any responsibility
or liability for the accuracy or completeness thereof. Southard Financial did not make an independent evaluation or perform an
appraisal of the specific assets, the collateral securing assets, or the liabilities (contingent or otherwise) of TBI, nor was
Southard Financial furnished with any such evaluations or appraisals. Southard Financial rendered no opinion or evaluation on
the collectability of any assets or the future performance of any loans of TBI. Southard Financial did not independently evaluate
the adequacy of the allowance for loan losses of TBI or the combined entity after the Merger. Southard Financial did not review
any individual credit files relating to TBI. Southard Financial assumed that the allowances for loan loss provision at TBI were
adequate to cover such losses and would be sufficient on a pro forma basis for the combined entity.
Southard Financial
also assumed, with TBI’s consent, that (i) each of the parties to the Merger Agreement would comply in all material respects with
all material terms of the Merger Agreement and all related agreements, that all of the representations and warranties contained
in such agreements were true and correct in all material respects, that each of the parties to such agreements would perform in
all material respects all of the covenants required to be performed by such party under the agreements and that the conditions
precedent in such agreements were not and would not be waived, (ii) in the course of obtaining the necessary regulatory or third
party approvals, consents and releases with respect to the Merger, no delay, limitation, restriction or condition would be imposed
that would have an adverse effect on TBI, SFNC or the Merger or any related transactions, and (iii) the Merger and any related
transactions would be consummated in accordance with the terms of the Merger Agreement without any waiver, modification or amendment
of any material term, condition or agreement thereof and in compliance with all applicable laws and other requirements. Finally,
with TBI’s consent, Southard Financial relied upon the advice that TBI received from its legal, accounting, and tax advisors as
to all legal, accounting, and tax matters relating to the Merger and the other transactions contemplated by the Merger Agreement.
Accordingly, Southard Financial expressed no opinion as to any such matters.
Board of Directors
Triumph Bancshares, Inc.
Page 5
Southard Financial’s
Opinion was necessarily based on financial, economic, regulatory, market, and other conditions as in effect on, and the information
made available to Southard Financial as of, the date of the Opinion. Events occurring after the date of Southard Financial’s Opinion
could materially affect the Opinion. Southard Financial has not undertaken to update, revise, reaffirm or withdraw its Opinion
or otherwise comment upon events occurring after the date of its Opinion. Southard Financial expresses no opinion as to the trading
value of SFNC common stock at any time or what the value of SFNC common stock would be once it is received by the holders of TBI
common stock.
In rendering
its Opinion, Southard Financial performed a variety of financial analyses. The preparation of a fairness opinion is a complex
process involving subjective judgments about the most appropriate and relevant financial analysis methods and applying those methods
to particular circumstances. The process, therefore, is not necessarily susceptible to a partial analysis or summary description.
Southard Financial believes that its analyses must be considered as a whole and that selecting portions of the factors and analyses
to be considered without considering all factors and analyses, or attempting to ascribe relative weights to some or all such factors
and analyses, could create an incomplete view of the evaluation process underlying its Opinion. Also, no company included in Southard
Financial’s comparative analyses described below is identical to TBI, and no transaction is identical to the Merger. Accordingly,
an analysis of comparable companies or transactions involves complex considerations and judgments concerning differences in financial
and operating characteristics of the companies and other factors that could affect the public trading values or merger transaction
values, as the case may be, of TBI and the companies to which they are being compared. In arriving at its Opinion, Southard Financial
did not attribute any particular weight to any analysis or factor that it considered. Rather, Southard Financial made qualitative
judgments as to the significance and relevance of each analysis and factor. Southard Financial did not form an opinion as to whether
any individual analysis or factor (positive or negative) considered in isolation supported or failed to support its Opinion; instead,
Southard Financial made its determination as to the fairness of the Transaction based on its experience and professional judgment
after considering the results of all its analyses taken as a whole.
In performing
its analyses, Southard Financial also made numerous assumptions concerning industry performance, business and economic conditions,
and various other matters, many of which are beyond the control of TBI. Southard Financial prepared its analyses solely for purposes
of rendering its Opinion. Estimates of the values of companies do not purport to be appraisals or necessarily reflect the prices
at which companies or their securities may actually be sold. Such estimates are inherently subject to uncertainty, and actual
values may be materially different. Accordingly, Southard Financial’s analyses do not necessarily reflect the value of TBI common
stock or the prices at which TBI common stock may be sold at any time. The analyses of Southard Financial and its Opinion were
among many factors taken into consideration by TBI’s Board in making its determination to approve the Merger Agreement. The type
and amount of consideration payable in the Merger were determined through negotiation between TBI and SFNC.
Our Opinion
is directed to the Board of Directors of TBI in connection with its consideration of the Merger Agreement. Our Opinion does not
constitute a recommendation to any shareholder of TBI as to how any such shareholder should vote at any meeting of shareholders
called to consider and vote upon the approval of the Merger Agreement and the Merger. Our Opinion is directed only to the fairness,
from a financial point of view, of the consideration paid to the holders of TBI common stock. It does not address the underlying
business decision of TBI to engage in the Merger, the form or structure of the Merger or any other transactions contemplated in
the Merger Agreement, the relative merits of the Merger as compared to any other alternative transactions or business strategies
that might exist for TBI or the effect of any other transaction in which TBI might engage. We also do not express any opinion
as to the fairness of the amount or nature of the compensation to be received in the Merger by any officer, director or employee
of TBI, or any class of such persons, if any, relative to the compensation to be received in the Merger by any other shareholder.
Board of Directors
Triumph Bancshares, Inc.
Page 6
Southard Financial
is a business valuation and strategic financial management consulting firm founded in 1987. The team of professionals at Southard
Financial has extensive business valuation experience. Southard Financial provides a variety of valuation services, including
fairness opinions, and Southard Financial offers valuations for financial institutions, corporations, and partnerships for various
purposes. Since its founding, Southard Financial has provided thousands of valuation opinions for companies in 43 states.
In accordance
with recognized professional ethics, Southard Financial’s professional fees for this service are not contingent upon the
opinion expressed herein, and neither Southard Financial, nor any of its employees, has a present or intended financial relationship
with or interest in the Bank or the Company.
This Opinion
may not be reproduced without Southard Financial’s prior written consent; however, Southard Financial will provide its consent
for the Opinion to be included in regulatory filings to be completed in connection with the Merger. Based upon and subject to
the preceding, it is our Opinion that, as of the date hereof, the consideration offered is fair to holders of TBI common stock
from a financial point of view.
|
Sincerely,
|
|
|
|
/s/ Southard Financial,
LLC
|
Annex G
Section
48-23-101 through Section 48-23-302
of
the Tennessee Business Corporation Act:
Dissenters’
Rights for Shareholders of Landmark Community Bank and Triumph Bancshares, Inc.
48-23-101. Chapter definitions.
As used in this chapter, unless
the context otherwise requires:
|
(1)
|
“Beneficial
shareholder” means the person who is a beneficial owner of shares held by a nominee
as the record shareholder;
|
|
(2)
|
“Corporation”
means the issuer of the shares held by a dissenter before the corporate action, and,
for purposes of §§ 48-23-203 — 48-23-302, includes the survivor of a
merger or conversion or the acquiring entity in a share exchange of that issuer;
|
|
(3)
|
“Dissenter”
means a shareholder who is entitled to dissent from corporate action under § 48-23-102
and who exercises that right when and in the manner required by part 2 of this chapter;
|
|
(4)
|
“Fair
value,” with respect to a dissenter’s shares, means the value of the shares immediately
before the effectuation of the corporate action to which the dissenter objects, excluding
any appreciation or depreciation in anticipation of the corporate action;
|
|
(5)
|
“Interest”
means interest from the effective date of the corporate action that gave rise to the
shareholder’s right to dissent until the date of payment, at the average auction rate
paid on United States treasury bills with a maturity of six (6) months (or the closest
maturity thereto) as of the auction date for such treasury bills closest to such effective
date;
|
|
(6)
|
“Record
shareholder” means the person in whose name shares are registered in the records
of a corporation or the beneficial owner of shares to the extent of the rights granted
by a nominee certificate on file with a corporation; and
|
|
(7)
|
“Shareholder”
means the record shareholder or the beneficial shareholder.
|
48-23-102. Right to dissent.
(a) A shareholder is entitled
to dissent from, and obtain payment of the fair value of the shareholder’s shares in the event of, any of the following corporate
actions:
(1) Consummation of
a plan of merger to which the corporation is a party:
(A) If shareholder approval
is required for the merger by § 48-21-104 or the charter and the shareholder is entitled to vote on the merger if the merger
is submitted to a vote at a shareholders’ meeting or the shareholder is a nonconsenting shareholder under § 48-17-104(b)
who would have been entitled to vote on the merger if the merger had been submitted to a vote at a shareholders’ meeting; or
(B) If the corporation
is a subsidiary that is merged with its parent under § 48-21-105;
(2) Consummation of
a plan of share exchange to which the corporation is a party as the corporation whose shares will be acquired, if the shareholder
is entitled to vote on the plan if the plan is submitted to a vote at a shareholders’ meeting or the shareholder is a nonconsenting
shareholder under § 48-17-104(b) who would have been entitled to vote on the plan if the plan had been submitted to a vote
at a shareholders’ meeting;
(3) Consummation of
a sale or exchange of all, or substantially all, of the property of the corporation other than in the usual and regular course
of business, if the shareholder is entitled to vote on the sale or exchange if the sale or exchange is submitted to a vote at
a shareholders’ meeting or the shareholder is a nonconsenting shareholder under § 48-17-104(b) who would have been entitled
to vote on the sale or exchange if the sale or exchange had been submitted to a vote at a shareholders’ meeting, including a sale
of all, or substantially all, of the property of the corporation in dissolution, but not including a sale pursuant to court order
or a sale for cash pursuant to a plan by which all or substantially all of the net proceeds of the sale will be distributed to
the shareholders within one (1) year after the date of sale;
(4) An amendment of
the charter that materially and adversely affects rights in respect of a dissenter’s shares because it:
(A) Alters or abolishes
a preferential right of the shares;
(B) Creates, alters, or
abolishes a right in respect of redemption, including a provision respecting a sinking fund for the redemption or repurchase,
of the shares;
(C) Alters or abolishes
a preemptive right of the holder of the shares to acquire shares or other securities;
(D) Excludes or limits
the right of the shares to vote on any matter, or to cumulate votes, other than a limitation by dilution through issuance of shares
or other securities with similar voting rights; or
(E) Reduces the number
of shares owned by the shareholder to a fraction of a share, if the fractional share is to be acquired for cash under § 48-16-104;
(5) Any corporate action
taken pursuant to a shareholder vote to the extent the charter, bylaws, or a resolution of the board of directors provides that
voting or nonvoting shareholders are entitled to dissent and obtain payment for their shares;
(6) Consummation of
a conversion of the corporation to another entity pursuant to chapter 21 of this title; or
(7) In accordance with
and to the extent provided in § 48-28-104(b), an amendment to the charter of a corporation as described in § 48-28-104(b)(1),
or consummation of a merger or plan of share exchange as described in § 48-28-104(b)(2).
(b) A shareholder entitled
to dissent and obtain payment for the shareholder’s shares under this chapter may not challenge the corporate action creating
the shareholder’s entitlement unless the action is unlawful or fraudulent with respect to the shareholder or the corporation.
(c) Notwithstanding subsection
(a), no shareholder may dissent as to any shares of a security which, as of the date of the effectuation of the transaction which
would otherwise give rise to dissenters’ rights, is listed on an exchange registered under § 6 of the Securities Exchange
Act of 1934 (15 U.S.C. § 78f), as amended, or is a “national market system security,” as defined in rules promulgated
pursuant to the Securities Exchange Act of 1934 (15 U.S.C. § 78a), as amended.
48-23-103. Dissent by nominees
and beneficial owners.
(a) A record shareholder may
assert dissenters’ rights as to fewer than all the shares registered in the record shareholder’s name only if the record shareholder
dissents with respect to all shares beneficially owned by any one (1) person and notifies the corporation in writing of the name
and address of each person on whose behalf the record shareholder asserts dissenters’ rights. The rights of a partial dissenter
under this subsection (a) are determined as if the shares as to which the partial dissenter dissents and the partial dissenter’s
other shares were registered in the names of different shareholders.
(b) A beneficial shareholder
may assert dissenters’ rights as to shares of any one (1) or more classes held on the beneficial shareholder’s behalf only if
the beneficial shareholder:
(1) Submits to the corporation
the record shareholder’s written consent to the dissent not later than the time the beneficial shareholder asserts dissenters’
rights; and
(2) Does so with respect
to all shares of the same class of which the person is the beneficial shareholder or over which the person has power to direct
the vote.
48-23-201. Notice of dissenters’
rights.
(a) Where any corporate action
specified in § 48-23-102(a) is to be submitted to a vote at a shareholders’ meeting, the meeting notice (including any meeting
notice required under chapters 11-27 to be provided to nonvoting shareholders) must state that the corporation has concluded that
the shareholders are, are not, or may be entitled to assert dissenters’ rights under this chapter. If the corporation concludes
that dissenters’ rights are or may be available, a copy of this chapter must accompany the meeting notice sent to those record
shareholders entitled to exercise dissenters’ rights.
(b) In a merger pursuant to
§ 48-21-105, the parent corporation must notify in writing all record shareholders of the subsidiary who are entitled to
assert dissenters rights that the corporate action became effective. Such notice must be sent within ten (10) days after the corporate
action became effective and include the materials described in § 48-23-203.
(c) Where any corporate action
specified in § 48-23-102(a) is to be approved by written consent of the shareholders pursuant to § 48-17-104(a) or §
48-17-104(b):
(1) Written notice that
dissenters’ rights are, are not, or may be available must be sent to each record shareholder from whom a consent is solicited
at the time consent of such shareholder is first solicited and, if the corporation has concluded that dissenters’ rights are or
may be available, must be accompanied by a copy of this chapter; and
(2) Written notice that
dissenters’ rights are, are not, or may be available must be delivered together with the notice to nonconsenting and nonvoting
shareholders required by § 48-17-104(e) and (f), may include the materials described in § 48-23-203 and, if the corporation
has concluded that dissenters’ rights are or may be available, must be accompanied by a copy of this chapter.
(d) A corporation’s failure
to give notice pursuant to this section will not invalidate the corporate action.
48-23-202. Notice of intent
to demand payment.
(a) If a corporate action
specified in § 48-23-102(a) is submitted to a vote at a shareholders’ meeting, a shareholder who wishes to assert dissenters’
rights with respect to shares for which dissenters’ rights may be asserted under this chapter:
(1) Must deliver to
the corporation, before the vote is taken, written notice of the shareholder’s intent to demand payment if the proposed action
is effectuated; and
(2) Must not vote, or
cause or permit to be voted, any such shares in favor of the proposed action.
(b) If a corporate action
specified in § 48-23-102(a) is to be approved by less than unanimous written consent, a shareholder who wishes to assert
dissenters’ rights with respect to shares for which dissenters’ rights may be asserted under this chapter must not sign a consent
in favor of the proposed action with respect to such shares.
(c) A shareholder who fails
to satisfy the requirements of subsection (a) or subsection (b) is not entitled to payment under this chapter.
48-23-203. Dissenters’
notice.
(a) If a corporate action
requiring dissenters’ rights under § 48-23-102(a) becomes effective, the corporation must send a written dissenters’ notice
and form required by subdivision (b)(1) to all shareholders who satisfy the requirements of § 48-23-202(a) or § 48-23-202(b).
In the case of a merger under § 48-21-105, the parent must deliver a dissenters’ notice and form to all record shareholders
who may be entitled to assert dissenters’ rights.
(b) The dissenters’ notice
must be delivered no earlier than the date the corporate action specified in § 48-23-102(a) became effective, and no later
than (10) days after such date, and must:
(1) Supply a form that:
(A) Specifies the first
date of any announcement to shareholders made prior to the date the corporate action became effective of the principal terms of
the proposed corporate action;
(B) If such announcement
was made, requires the shareholder asserting dissenters’ rights to certify whether beneficial ownership of those shares for which
dissenters’ rights are asserted was acquired before that date; and
(C) Requires the shareholder
asserting dissenters’ rights to certify that such shareholder did not vote for or consent to the transaction;
(2) State:
(A) Where the form must
be sent and where certificates for certificated shares must be deposited and the date by which those certificates must be deposited,
which date may not be earlier than the date for receiving the required form under subdivision (b)(2)(B);
(B) A date by which the
corporation must receive the form, which date may not be fewer than forty (40) nor more than sixty (60) days after the date the
subsection (a) dissenters’ notice is sent, and state that the shareholder shall have waived the right to demand payment with respect
to the shares unless the form is received by the corporation by such specified date;
(C) The corporation’s
estimate of the fair value of shares; and
(D) That, if requested
in writing, the corporation will provide, to the shareholder so requesting, within ten (10) days after the date specified in subdivision
(b)(2)(B) the number of shareholders who return the forms by the specified date and the total number of shares owned by them;
and
(3) Be accompanied by
a copy of this chapter if the corporation has not previously sent a copy of this chapter to the shareholder pursuant to §
48-23-201.
48-23-204. Duty to demand
payment.
(a) A shareholder sent a dissenters’
notice described in § 48-23-203 must demand payment, certify whether the shareholder acquired beneficial ownership of the
shares before the date required to be set forth in the dissenters’ notice pursuant to § 48-23-203(b)(2), and deposit the
shareholder’s certificates in accordance with the terms of the notice.
(b) The shareholder who demands
payment and deposits the shareholder’s share certificates under subsection (a) retains all other rights of a shareholder until
these rights are cancelled or modified by the effectuation of the proposed corporate action.
(c) A shareholder who does
not demand payment or deposit the shareholder’s share certificates where required, each by the date set in the dissenters’ notice,
is not entitled to payment for the shareholder’s shares under this chapter.
(d) A demand for payment filed
by a shareholder may not be withdrawn unless the corporation with which it was filed, or the surviving corporation, consents thereto.
48-23-205. Share restrictions.
(a) The corporation may restrict
the transfer of uncertificated shares from the date the demand for their payment is received until the proposed corporate action
is effectuated or the restrictions released under § 48-23-207.
(b) The person for whom dissenters’
rights are asserted as to uncertificated shares retains all other rights of a shareholder until these rights are cancelled or
modified by the effectuation of the proposed corporate action.
48-23-206. Payment.
(a) Except as provided in
§ 48-23-208, as soon as the proposed corporate action is effectuated, or upon receipt of a payment demand, whichever is later,
the corporation shall pay each dissenter who complied with § 48-23-204 the amount the corporation estimates to be the fair
value of each dissenter’s shares, plus accrued interest.
(b) The payment must be accompanied
by:
(1) The corporation’s
balance sheet as of the end of a fiscal year ending not more than sixteen (16) months before the date of payment, an income statement
for that year, a statement of changes in shareholders’ equity for that year, and the latest available interim financial statements,
if any;
(2) A statement of the
corporation’s estimate of the fair value of the shares, which estimate shall equal or exceed the corporation’s estimate given
pursuant to § 48-23-203(b)(2)(C);
(3) An explanation of
how the interest was calculated;
(4) A statement of the
dissenter’s right to demand payment under § 48-23-209; and
(5) A copy of this chapter
if the corporation has not previously sent a copy of this chapter to the shareholder pursuant to § 48-23-201 or § 48-23-203.
48-23-207. Failure to take
action.
(a) If the corporation does
not effectuate the proposed action that gave rise to the dissenters’ rights within two (2) months after the date set for demanding
payment and depositing share certificates, the corporation shall return the deposited certificates and release the transfer restrictions
imposed on uncertificated shares.
(b) If, after returning deposited
certificates and releasing transfer restrictions, the corporation effectuates the proposed action, it must send a new dissenters’
notice under § 48-23-203 and repeat the payment demand procedure.
48-23-208. After-acquired
shares.
(a) A corporation may elect
to withhold payment required by § 48-23-206 from a dissenter unless the dissenter was the beneficial owner of the shares
before the date set forth in the dissenters’ notice as the date of the first announcement to news media or to shareholders of
the principal terms of the proposed corporate action.
(b) To the extent the corporation
elects to withhold payment under subsection (a), after effectuating the proposed corporate action, it shall estimate the fair
value of the shares, plus accrued interest, and shall pay this amount to each dissenter who agrees to accept it in full satisfaction
of the dissenter’s demand. The corporation shall send with its offer a statement of its estimate of the fair value of the shares,
an explanation of how the interest was calculated, and a statement of the dissenter’s right to demand payment under § 48-23-209.
48-23-209. Procedure if
shareholder dissatisfied with payment or offer.
(a) A dissenter may notify
the corporation in writing of the dissenter’s own estimate of the fair value of the dissenter’s shares and amount of interest
due, and demand payment of the dissenter’s estimate (less any payment under § 48-23-206), or reject the corporation’s offer
under § 48-23-208 and demand payment of the fair value of the dissenter’s shares and interest due, if:
(1) The dissenter believes
that the amount paid under § 48-23-206 or offered under § 48-23-208 is less than the fair value of the dissenter’s shares
or that the interest due is incorrectly calculated;
(2) The corporation
fails to make payment under § 48-23-206 within two (2) months after the date set for demanding payment; or
(3) The corporation,
having failed to effectuate the proposed action, does not return the deposited certificates or release the transfer restrictions
imposed on uncertificated shares within two (2) months after the date set for demanding payment.
(b) A dissenter waives the
dissenter’s right to demand payment under this section unless the dissenter notifies the corporation of the dissenter’s demand
in writing under subsection (a) within one (1) month after the corporation made or offered payment for the dissenter’s shares.
48-23-301. Court action.
(a) If a demand for payment
under § 48-23-209 remains unsettled, the corporation shall commence a proceeding within two (2) months after receiving the
payment demand and petition the court to determine the fair value of the shares and accrued interest. If the corporation does
not commence the proceeding within the two-month period, it shall pay each dissenter whose demand remains unsettled the amount
demanded.
(b) The corporation shall
commence the proceeding in a court of record having equity jurisdiction in the county where the corporation’s principal office
(or, if none in this state, its registered office) is located. If the corporation is a foreign corporation without a registered
office in this state, it shall commence the proceeding in the county in this state where the registered office of the domestic
corporation merged with or whose shares were acquired by the foreign corporation was located.
(c) The corporation shall
make all dissenters (whether or not residents of this state) whose demands remain unsettled, parties to the proceeding as in an
action against their shares and all parties must be served with a copy of the petition. Nonresidents may be served by registered
or certified mail or by publication as provided by law.
(d) The jurisdiction of the
court in which the proceeding is commenced under subsection (b) is plenary and exclusive. The court may appoint one (1) or more
persons as appraisers to receive evidence and recommend decision on the question of fair value. The appraisers have the powers
described in the order appointing them, or in any amendment to it. The dissenters are entitled to the same discovery rights as
parties in other civil proceedings.
(e) Each dissenter made a
party to the proceeding is entitled to judgment:
(1) For the amount,
if any, by which the court finds the fair value of the dissenter’s shares, plus accrued interest, exceeds the amount paid by the
corporation; or
(2) For the fair value,
plus accrued interest, of the dissenter’s after-acquired shares for which the corporation elected to withhold payment under §
48-23-208.
48-23-302. Court costs
and counsel fees.
(a) The court in an appraisal
proceeding commenced under § 48-23-301 shall determine all costs of the proceeding, including the reasonable compensation
and expenses of appraisers appointed by the court. The court shall assess the costs against the corporation, except that the court
may assess costs against all or some of the dissenters, in amounts the court finds equitable, to the extent the court finds the
dissenters acted arbitrarily, vexatiously, or not in good faith in demanding payment under § 48-23-209.
(b) The court may also assess
the fees and expenses of counsel and experts for the respective parties, in amounts the court finds equitable against:
(1) The corporation
and in favor of any or all dissenters if the court finds the corporation did not substantially comply with the requirements of
part 2 of this chapter; or
(2) Either the corporation
or a dissenter, in favor of any other party, if the court finds that the party against whom the fees and expenses are assessed
acted arbitrarily, vexatiously, or not in good faith with respect to the rights provided by this chapter.
(c) If the court finds that
the services of counsel for any dissenter were of substantial benefit to other dissenters similarly situated, and that the fees
for those services should not be assessed against the corporation, the court may award to these counsel reasonable fees to be
paid out of the amounts awarded to the dissenters who were benefited.