Simmons First National Corp S-4/A, filed Jan 18, 2022

Simmons First National Corp (SFNC)

S-4/A 2022-01-18

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Arkansas	6022	71-0407808
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)

George Makris III Executive Vice President, General Counsel and Corporate Secretary Simmons First National Corporation 601 E. 3rd Street, 12th Floor Little Rock, Arkansas 72201 (501) 558-3162	Frank M. Conner III Christopher DeCresce Charlotte May Covington & Burling LLP One CityCenter 850 Tenth Street N.W. Washington, D.C. 20001 (202) 662-6000

Dean O. Bass Chairman and Chief Executive Officer 1836 Spirit of Texas Way Conroe, Texas 77301 (936) 521-1836	Peter G. Weinstock Beth A. Whitaker Hunton Andrews Kurth LLP 1445 Ross Avenue, Suite 3700 Dallas, Texas 75202 (214) 979-3000

	Large accelerated filer x	Accelerated filer o
	Non-accelerated filer o	Smaller accelerated filer o
		Emerging growth company o

	Simmons Common Stock		Spirit Common Stock		Implied Value of Per Share Merger Consideration
November 18, 2021	$	31.48	$	26.75	$	31.82
January 14, 2022	$	31.91	$	30.97	$	32.25


George A. Makris, Jr.	Dean O. Bass
Chairman and Chief Executive Officer	Chairman and Chief Executive Officer
Simmons First National Corporation	Spirit of Texas Bancshares, Inc.

QUESTIONS AND ANSWERS ABOUT THE MERGER AND THE SPIRIT SPECIAL MEETING	1
SUMMARY	11
MARKET PRICE AND DIVIDENDS	22
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS	23
RISK FACTORS	25
Risks Relating to the Merger	25
Risks Relating to the Combined Company’s Business Following the Merger	30
Risks Relating to an Investment in Simmons Common Stock	31
THE SPIRIT SPECIAL MEETING	33
Date, Time and Place of the Spirit Special Meeting	33
Purpose of the Spirit Special Meeting	33
Recommendation of the Spirit Board of Directors	33
Record Date and Quorum	34
Vote Required; Treatment of Abstentions and Failure to Vote	34
Shares Held by Directors and Executive Officers	34
Voting of Proxies; Incomplete Proxies	35
Shares Held in “Street Name”	35
Revocability of Proxies and Changes to a Spirit Shareholder’s Vote	36
Solicitation of Proxies	36
Attending the Spirit Special Meeting	37
Delivery of Proxy Materials	37
Assistance	37
THE SPIRIT PROPOSALS	38
Proposal 1: Merger Proposal	38
Proposal 2: Advisory Proposal on Specified Compensation	38
Proposal 3: Adjournment Proposal	39
Other Matters to Come Before the Spirit Special Meeting	39
INFORMATION ABOUT THE COMPANIES	40
Simmons First National Corporation	40
Spirit of Texas Bancshares, Inc.	40
THE MERGER	42
Terms of the Merger	42
Background of the Merger	42
Spirit’s Reasons for the Merger and Recommendation of the Spirit Board of Directors	48
Opinion of Spirit’s Financial Advisor	52
Certain Unaudited Prospective Financial Information	60
Simmons’ Reasons for the Merger	63
Management and Board of Directors of Simmons After the Merger	64
Interests of Spirit’s Directors and Executive Officers in the Merger	64
Merger-Related Compensation for Spirit’s Named Executive Officers	68
Regulatory Approvals Required for the Merger	69
Accounting Treatment	72
Public Trading Markets	72
Dissenters’ Rights in the Merger	72
THE MERGER AGREEMENT	77
Structure of the Merger	77
Treatment of Spirit Equity Rights	77

Potential Adjustment to Stock Consideration	78
Surviving Corporation Governing Documents, Directors and Officers	78
Closing and Effective Time	78
Conversion of Shares; Exchange Procedures	79
Representations and Warranties	80
Covenants and Agreements	84
Agreement Not to Solicit Other Offers	90
Spirit Special Meeting and Recommendation of the Spirit Board of Directors	92
Conditions to Consummation of the Merger	93
Termination of the Merger Agreement	95
Effect of Termination	96
Termination Fee	96
Expenses and Fees	96
Amendments and Waivers	96
Voting Agreements	97
MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES RELATING TO THE MERGER	98
COMPARISON OF SHAREHOLDERS’ RIGHTS	101
LEGAL MATTERS	114
EXPERTS	114
OTHER MATTERS	115
SIMMONS ANNUAL MEETING SHAREHOLDER PROPOSALS	116
SPIRIT ANNUAL MEETING SHAREHOLDER PROPOSALS	117
WHERE YOU CAN FIND MORE INFORMATION	118

Annex A:	Agreement and Plan of Merger, dated as of November 18, 2021, by and between Simmons First National Corporation and Spirit of Texas Bancshares, Inc.
Annex B:	Form of Support and Non-Competition Agreement, by and among Simmons First National Corporation, Spirit of Texas Bancshares, Inc. and certain directors and shareholders of Spirit of Texas Bancshares, Inc.
Annex C:	Opinion of Stephens Inc.
Annex D:	Chapter 10, Subchapter H of the Texas Business Organizations Code: Dissenters’ Rights for the Shareholders of Spirit of Texas Bancshares, Inc.

	·	via the Internet at www.proxypush.com/STXB;
	·	by telephone by calling 1-866-437-1228;
	·	by mail by completing, signing, dating and returning the enclosed proxy in the enclosed envelope, which requires no additional postage if mailed in the United States; or
	·	via live webcast at the Spirit special meeting.

Transaction Value / Tangible Book Value per Share:	1.87x
Transaction Value / Last Twelve Months, or LTM, Earnings per Share, or EPS:	12.7x
Transaction Value / 2022 EPS:	15.4x
Transaction Value / 2023 EPS:	14.0x
Core Deposit Premium per Share:	12.0%

		25^th		75^th
	Spirit	Percentile	Median	Percentile
Tangible Common Equity / Tangible Assets	9.9%	8.2%	9.0%	9.7%
Price / Tangible Book Value	1.44x	1.28x	1.41x	1.82x
Price / 2022 Estimated EPS	11.9x	10.7x	12.0x	13.7x
Price / 2023 Estimated EPS	10.8x	9.6x	11.2x	12.9x

	Spirit	25^th Percentile	Median	75^th Percentile
Target LTM Return on Average Assets	1.47%	0.89%	1.28%	1.35%
Target Tangible Common Equity/Tangible Assets	9.9%	8.4%	8.9%	9.3%
Transaction Value Per Share/Tangible Book Value Per Share	1.87x	1.60x	1.81x	1.85x
Transaction Value Per Share / LTM EPS	12.7x	10.4x	12.5x	17.2x
Core Deposit Premium	12.0%	5.1%	9.0%	11.4%

	As of or For the Years Ended December 31,
	2022		2023		2024		2025		2026
Spirit Net Income ($ millions)	$	37.8	$	41.7	$	45.0	$	48.6	$	52.5
Spirit Total Assets ($ billions)		3.4		3.7		4.0		4.4		4.7
Spirit EPS		2.14		2.36		2.55		2.75		2.97

	Assumed Long-Term Growth Rates for Spirit
Earnings (%)		8.0%
Total Assets (%)		8.0%

	Assumed Long-Term Growth Rates for Simmons
Earnings (%)		7.0%
Total Assets (%)		7.0%

Named Executive Officer	Cash ($)⁽¹⁾		Equity ($)⁽²⁾		Perquisites/ Benefits ($)⁽³⁾		Total ($)
Dean O. Bass		5,150,000		2,945,946		81,817		8,177,763
David M. McGuire		3,045,000		3,077,053		108,188		6,230,241
Jerry D. Golemon		682,500		1,261,200		56,704		2,000,404
Allison S. Johnson		607,500		330,649		68,028		1,006,177

	Spirit RSUs		Spirit Options
Dean O. Bass	$	1,075,106	$	1,870,840
David M. McGuire	$	1,029,679	$	2,047,374
Jerry D. Golemon	$	560,267	$	700,933
Allison S. Johnson	$	327,347	$	3,302

	Medical (18 Mos.)		Cell Phone		Country Club		Car Allowance		Total
Dean O. Bass		34,010		4,500		28,341		14,966		81,817
David M. McGuire		46,037		4,500		50,230		7,421		108,188
Jerry D. Golemon		31,428		2,700		7,697		14,880		56,704
Allison S. Johnson		30,607		2,700		16,722		18,000		68,028

	Spirit	Simmons
*Capitalization:*	The Spirit charter authorizes it to issue up to 50,000,000 shares of common stock, no par value and 5,000,000 shares of preferred stock, par value $1.00 per share.	The Simmons charter authorizes it to issue 175,000,000 shares of Class A Common Stock, par value $0.01 per share, and 40,040,000 shares of preferred stock, par value $0.01 per share.

*Voting Rights:*	The Spirit charter expressly denies the right of cumulative voting for the election of directors or for any other purpose. Otherwise, the Spirit charter and the Spirit bylaws do not impose voting restrictions on shares of Spirit common stock.	Each share of Simmons common stock carries one vote and has unrestricted voting rights.

	Spirit	Simmons
*Dividend Rights:*	The Spirit bylaws provide that the Spirit board of directors may, from time to time, declare, and Spirit may pay, dividends in cash, property, or in shares, subject to the restrictions in the TBOC and Spirit’s charter on the outstanding shares of capital stock out of funds legally available therefor.	Simmons shareholders are entitled to receive dividends as and when declared by the Simmons board of directors. No dividends can be declared on Simmons common stock unless a like dividend is declared and paid on outstanding shares of Simmons preferred stock. Under Section 640 of the ABCA, the Simmons board of directors may issue dividends to its shareholders subject to the restrictions in its charter; provided that no distribution will be made if, after giving it effect: (1) the corporation would not be able to pay its debts as they become due in the usual course of business or (2) the corporation’s total assets would be less than the sum of its total liabilities plus (unless otherwise permitted in the charter) the amount that would be needed, if the corporation were to be dissolved at the time of distribution, to satisfy the preferential rights upon dissolution of shareholders whose preferential rights are superior to those receiving the distribution.

*Number of Outstanding Shares Before the Merger:*	As of January 14, 2022, there were 17,288,547 shares of Spirit common stock and no shares of Spirit preferred stock outstanding.	As of January 14, 2022, there were 112,358,652 shares of Simmons common stock and no shares of Simmons preferred stock outstanding.

*Number of Outstanding* *Shares After the Merger:*	Immediately after the merger, there will be no shares of Spirit common stock outstanding and no shares of Spirit preferred stock outstanding.	Immediately after the merger, Simmons will have approximately 130,242,190 shares of Simmons common stock outstanding and no Simmons preferred stock outstanding.

*Estimated Voting* *Percentage After the Merger:*	Upon conclusion of the merger, it is expected that existing holders of Spirit common stock will own approximately 13.7% of Simmons common stock.	Upon conclusion of the merger, it is expected that existing Simmons shareholders will own approximately 86.3% of Simmons common stock.

*Rights of Holders of Stock* *Subject to Future Issuance of Capital Stock:*	The rights of holders of Spirit common stock may be affected by the future issuance of Spirit common or preferred stock.	The rights of holders of Simmons common stock may be affected by the future issuance of Simmons common or preferred stock.

	Spirit	Simmons
*Pre-Emptive Rights*	The Spirit charter provides that no holders of any class of shares of Spirit stock have any pre-emptive or preferential right to purchase, subscribe for or take any part of any stock issued, optioned, or sold by Spirit.	The Simmons charter provides that no holders of any class of shares of Simmons stock have a pre-emptive right to purchase, subscribe for or take any part of any stock issued, optioned, or sold by Simmons.

*Quorum:*	The holders of a majority of the Spirit common stock issued and outstanding and entitled to vote, present in person or represented by proxy, will constitute a quorum at all meetings of Spirit shareholders for the transaction of business, except as otherwise provided by law. If a quorum fails to attend any meeting, the shareholders entitled to vote who are present in person or represented by proxy may adjourn the meeting.	Under the Simmons bylaws, a majority of the votes entitled to be cast, represented in person or by proxy, constitutes a quorum at a meeting of the shareholders.

*Notice of Shareholder* *Meetings:*	Written or printed notice of any meeting of Spirit shareholders must be given not less than ten nor more than 60 days before the day of the meeting. The notice must include the place, date and time of the meeting, and in the case of special meetings, the purpose or purposes of the meeting. A written waiver of any notice signed by a Spirit shareholder, whether before or after the time of the event for which notice is to be given, will be deemed equivalent to the notice required to be given to such shareholder. Attendance of a shareholder at a meeting will constitute a waiver of notice of such meeting, except when the shareholder attends a meeting for the sole purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.	The Simmons bylaws provide that written or printed notice stating the place, day and hour of the meeting, and in case of a special meeting, the purpose or purposes for which the meeting is called, must be delivered not less than 10 nor more than 60 days before the date of the meeting, unless one of the purposes of the meeting is to increase the authorized capital stock or bond indebtedness of Simmons, in which case the notice must be delivered not less than 60 nor more than 75 days prior to the date of meeting, either personally or by mail, at the direction of the chairman of the Simmons board of directors, the president, the chief executive officer or the secretary or the officer or persons calling the meeting of each shareholder of record entitled to vote at such meeting. If mailed, such notice is deemed to be delivered when deposited in the United States mail, addressed to the shareholder at the address as it appears on the stock transfer books of the corporation, with postage thereon prepaid.

	Spirit	Simmons
*Board Vacancies:*	Any vacancy occurring on the Spirit board of directors may be filled at an annual or special meeting or by the affirmative vote of a majority of the directors then in office, even if the remaining directors constitute less than a quorum of the Spirit board of directors. Any director so chosen will hold office for the remainder of the term to which the director has been appointed and until such director’s successor has been elected and qualified. Any directorship to be filled by reason of an increase in the number of directors may be filled at an annual or special meeting or may be filled by the board of directors for a term continuing only until the next election of directors by the shareholders. Furthermore, the Spirit board of directors may not fill more than two vacancies created by reason of an increase in the number of directors during the period between any two successive annual meetings of the shareholders.	Any vacancy on the Simmons board of directors, including an increase in the number of directors, may be filled by the affirmative vote of a majority of the remaining directors, even if less than a quorum. Section 810 of the ABCA provides that the shareholders or board of directors may fill a vacancy on the board of directors, unless otherwise provided by the charter.

*Removal of Directors:*	Unless otherwise provided in the certificate of formation or the bylaws of a corporation, the TBOC provides that at any meeting of shareholders called expressly for the purpose of removing a director, any director or the entire board of directors may be removed, with or without cause, by a vote of the holders of a majority of the shares then entitled to vote at any election of directors. The Spirit bylaws provide that any director may be removed only for cause and only by the affirmative vote of a majority of the votes entitled to be cast by the shares of the then outstanding Spirit common stock present in person or represented by proxy and entitled to vote generally in the election of directors at a duly constituted meeting of Spirit shareholders.	The Simmons charter and Simmons bylaws do not address the removal of directors. Section 808 of the ABCA provides that if cumulative voting is not authorized one or more directors may be removed, with or without cause, only if the number of votes cast to remove the director exceeds the number of votes cast not to remove such director; provided, that, if cumulative voting is authorized, a director may not be removed if the number of votes sufficient to elect such director under cumulative voting is voted against his or her removal. If a director is elected by a voting group of shareholders, only the shareholders of that voting group may participate in the vote to remove him or her. A director also may be removed by the shareholders only at a meeting called for the purpose of removing the director and the meeting notice must state that one of the purposes of the meeting is removal of the director.

		Spirit		Simmons
*Votes on Extraordinary* *Corporate Transactions:*		Under the TBOC, the affirmative vote of the holders of at least two-thirds of the outstanding shares of the corporation entitled to vote is required to approve a fundamental business transaction, including mergers, unless a different vote but not less than a majority of the shares entitled to vote on the matter, is specified in the certificate of formation. The Spirit charter provides for a majority of the shares entitled to vote on the matter.		The Simmons charter provides that any merger, sale of substantially all of the Simmons’ assets, liquidation or dissolution, or any reclassification of the corporation’s securities will require the affirmative vote of the holders of at least 80% of the outstanding voting shares, unless such business combination is approved by 80% of the continuing directors of Simmons (as defined in the Simmons charter). Under Section 1107 of the ABCA, a plan of merger may be approved if the board of directors recommends the merger to the shareholders (subject to certain exceptions) and shareholders entitled to vote approve the plan. Section 1107(g) of the ABCA provides that action by the shareholders of the surviving corporation on a plan of merger is not required if: (1) the articles of incorporation of the surviving corporation will not differ (except for certain enumerated amendments) from its articles before the merger; (2) each shareholder of the surviving corporation whose shares were outstanding immediately before the effective date of the merger will hold the same number of shares or the interest comparable to shares in an entity other than a corporation, with identical designations, preferences, limitations, and relative rights immediately after the merger; (3) the number of voting shares outstanding immediately after the merger plus the number of voting shares issuable as a result of the merger either by the conversion of securities issued pursuant to the merger or by the exercise of rights and warrants issued pursuant to the merger, will not exceed by more than 20% the total number of voting shares of the surviving corporation outstanding immediately before the merger; and (4) the number of participating shares outstanding immediately after the merger plus the number of participating shares issuable as a result of the merger either by the conversion of securities issued pursuant to the merger or by the exercise of rights and warrants issued pursuant to the merger, will not exceed by more than 20% the total number of participating shares outstanding immediately before the merger.

	Spirit	Simmons
		Under Section 4-27-1202 of the ABCA, a sale of all or substantially all of the corporation’s assets other than in the regular course of business must be proposed by the board of directors and the corporation’s shareholders must approve the proposed transaction. Under Section 1202 of the ABCA, a sale of all or substantially all of the corporation’s assets other than in the regular course of business must be proposed by the board of directors and the corporation’s shareholders must approve the proposed transaction.

*Consideration of Other Constituencies:*	The Spirit charter and bylaws do not address consideration of other constituencies.	The Simmons charter provides that after receipt of a tender offer, merger offer, or other acquisitive offer, the Simmons board of directors must consider (i) the impact on Simmons, its subsidiaries, shareholders and employees and the communities served by Simmons, (ii) the timeliness of the proposed transaction considering the business climate and strategic plans of Simmons, (iii) the existence of any legal defects or regulatory issues involved in the proposed transaction, (iv) the possibility of non-consummation of the transaction due to lack of financing, regulatory issues or identified issues, (v) current market price of Simmons common stock and its consolidated assets, (vi) book value of Simmons common stock, (vii) the relationship of the offered price for Simmons common stock to the opinion of the Simmons board of directors of the current value of Simmons in a negotiated transaction, (viii) the relationship of the offered price for Simmons common stock to the opinion of the Simmons board of directors of the future value of Simmons as an independent entity, and (ix) such other criteria as the Simmons board of directors may determine is appropriate.

	Spirit	Simmons
*Amendment of Bylaws:*	Under the TBOC, unless a corporation’s certificate of formation or a bylaw adopted by the shareholders provides otherwise, a corporation’s shareholders may amend the bylaws regardless of whether they may also be amended by the board of directors. The Spirit bylaws provide that the Spirit bylaws may be altered, amended or repealed from time to time by the Spirit board of directors unless reserved to the Spirit shareholders by law or the Spirit charter. The Spirit bylaws may also be altered, amended or repealed by the Spirit shareholders.	The Simmons bylaws provide that they may be amended, altered, or repealed, at any meeting of the Simmons board of directors, by a majority vote. Section 1020 of the ABCA provides that a corporation’s board of directors may amend or repeal the corporation’s bylaws unless otherwise stated in the corporation’s charter or the amendment deals with a particular provision that is reserved for shareholders’ approval. A corporation’s shareholders may amend or repeal the corporation’s bylaws even though the bylaws may also be amended by the board of directors.

*Business Combination Involving Interested Shareholders:*	The Spirit charter and Spirit bylaws do not include special provisions regarding business combinations involving interested shareholders.	The Simmons charter and Simmons bylaws do not include special provisions regarding business combinations involving interested shareholders.

*Special Meetings of Shareholders:*	Under the TBOC, special meetings of the shareholders of a corporation may be called by the president, by the corporation’s board of directors or by any other person authorized to call special meetings by the certificate of formation or bylaws of the corporation. A special meeting may also be called by the holder of the percentage of shares specified in the certificate of formation, not to exceed 50% of the shares entitled to vote, or if no percentage is specified therein, at least 10% of all of the shares of the corporation entitled to vote at the proposed special meeting. The Spirit charter and Spirit bylaws provide that special meetings of the shareholders may be called at any time by the president, by the chief executive officer, by the Spirit board of directors or by the holders of at least 50% of all shares issued, outstanding and entitled to vote at such meeting. Business transacted at the special meeting will be confined to the purpose or purposes stated in the notice of such meeting.	The Simmons bylaws provide that special meetings of shareholders may be called by the chairman of the Simmons board of directors, president, chief executive officer or by the majority of the Simmons board of directors, and may be called by the chairman of the Simmons board of directors or president at the request of the holders of not less than one-tenth of all the outstanding shares of Simmons entitled to vote at a meeting. Under Section 702 of the ABCA, a corporation will hold a special meeting of shareholders if called by the board of directors, the person authorized to do so by the charter or bylaws, or the holders of at least 10% of all votes entitled to be cast on any issue proposed to be considered at the proposed special meeting.

	Spirit	Simmons
	shareholder has a right to vote any shares of any security of Spirit, (d) any short interest in any security of Spirit, (e) any rights to dividends on the shares of Spirit owned beneficially by such shareholder, (f) any proportionate interest in shares of Spirit or derivative instruments held, directly or indirectly, by a general or limited partnership in which such shareholder is a general partner or, directly or indirectly, beneficially owned an interest in a general partner thereof, and (g) any performance-related fees that such shareholder is entitled to based on any increase or decrease in the value of shares of Spirit or derivative instruments as of the date of such notice, including without limitation any such interests held by members of such shareholder’s immediate family sharing the same household; and (iv) a representation that the shareholder is a holder of record of stock of Spirit entitled to vote at the meeting and intends to appear in person or by proxy at the meeting to propose such business.

*Shareholder Ability to Act* *by Written Consent:*	Under the TBOC, shareholders may act without a meeting if a written consent is signed by all of the shareholders entitled to vote on the matter, unless the corporation’s certificate of formation allows less than unanimous consent (but not less that the number of votes necessary to take such action at a meeting at which the holders of all shares entitled to vote on such action were present and voted). The Spirit charter and Spirit bylaws provide that any action required or permitted by law to be taken at a meeting of the shareholders of Spirit may be taken without a meeting, without prior notice and without a vote if a consent or consents in writing, setting forth the action so taken, will be signed be the holder or holders of all shares issued, outstanding and entitled to vote on such matter.	The Simmons charter and Simmons bylaws do not address whether Simmons shareholders have the ability to act by written consent. Generally, under Section 704 of the ABCA, any action required to be taken at a shareholder meeting may be taken without a meeting if one or more consents, setting forth the action so taken, are signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize to take such action at a meeting at which all shares entitled to vote are present and voted.

	Spirit	Simmons
		No indemnification may be made if the person will have been adjudged liable to the corporation unless otherwise specified by the court. The Simmons charter provides, to the fullest extent permitted by the ABCA, that a director will not be liable to Simmons or its shareholders for monetary damages for a breach of fiduciary duty as a director. Section 830 of the ABCA provides that if a director complies with the standard of conduct under the ABCA, the director may not be liable for any action taken as a director, or failure to take such action.

*Shareholders’ Rights of Dissent:*	Under the TBOC, a shareholder of Spirit has the rights of dissent and appraisal with respect to a fundamental business transaction, defined as a merger, interest exchange, conversion, or sale of all or substantially all assets.	Under Section 1302 of the ABCA, a shareholder is entitled to dissent from and obtain payment of the fair value of the shareholder’s shares in the event of certain extraordinary corporate actions such as a plan of conversion, merger, share exchange, sale of substantially all of the assets, or certain amendments to the charter. Sections 1320 through 1331 of the ABCA provide the process of obtaining payment which consists of the shareholder delivering notice of intent to demand payment, shareholder must not vote his or her shares in favor of the proposed action, certify whether he or she acquired ownership of the shares prior to the corporate action, deposit his or her certificates if shareholder rejects the corporation’s offer, and judicial appraisal of the value of the shares if shareholder rejects the corporation’s offer. The ABCA also places certain obligations on the corporation such as providing dissenters’ notice to all shareholders. A shareholder entitled to dissent and obtain payment for the shareholder’s shares may not challenge the corporate action creating the shareholder’s entitlement unless such action is unlawful or fraudulent with respect to the shareholder or the corporation.

*Control Share Acquisition:*	No “control share acquisition,” “business combination moratorium,” “fair price” or other form of anti-takeover statute or regulation is applicable to Spirit under the TBOC.	No “control share acquisition,” “business combination moratorium,” “fair price” or other form of anti-takeover statute or regulation is applicable to Simmons under Arkansas law.

Simmons SEC Filings (SEC File No. 000-06253)		Period or Date Filed
Annual Report on Form 10-K (including the portions of Simmons’ Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 15, 2021, incorporated by reference therein)		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, Quarter ended June 30, 2021, filed with the SEC on August 6, 2021 and Quarter ended September 30, 2021, filed with the SEC on November 5, 2021.

Current Reports on Form 8-K		Filed with the SEC on March 3, 2021, April 1, 2021, April 22, 2021, May 21, 2021, May 25, 2021, June 7, 2021, July 27, 2021, August 5, 2021, October 12, 2021 and November 19, 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’ registration statement filed on March 31, 2021 set forth in the section entitled “Description of Common Stock,” as updated and amended from time to time.

Spirit SEC Filings (SEC File No. 001-38484)		Period or Date Filed
Annual Report on Form 10-K (including the portions of Spirit’s Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 9, 2021, incorporated by reference therein)		Year ended December 31, 2020, filed with the SEC on March 5, 2021.

Quarterly Reports on Form 10-Q		Quarter ended March 31, 2021, filed with the SEC on April 30, 2021, Quarter ended June 30, 2021, filed with the SEC on August 6, 2021 and Quarter ended September 30, 2021, filed with the SEC on November 5, 2021.

Current Reports on Form 8-K		Filed with the SEC on January 11, 2021, February 26, 2021, March 16, 2021, May 28, 2021, June 15, 2021, June 16, 2021, August 20, 2021, November 19, 2021, November 24, 2021 and January 4, 2022 (other than those portions of the documents deemed to be furnished and not filed).

Description of Spirit common stock		The description of the Spirit common stock is contained in Spirit’s prospectus filed pursuant to Rule 424(b)(5) under the Securities Act on July 25, 2019 set forth under the heading “Description of Common Stock,” as updated and amended from time to time.

ARTICLE 1 TRANSACTIONS AND TERMS OF MERGER		A-1

1.1.	Merger.	A-1
1.2.	Time and Place of Closing.	A-2
1.3.	Effective Time.	A-2
1.4.	Charter.	A-2
1.5.	Bylaws.	A-2
1.6.	Directors and Officers.	A-2
1.7.	Bank Merger.	A-2

ARTICLE 2 MANNER OF CONVERTING SHARES		A-3

2.1.	Conversion of Shares.	A-3
2.2.	Anti-Dilution Provisions.	A-3
2.3.	Treatment of Seller Equity Rights.	A-3
2.4.	Fractional Shares.	A-4

ARTICLE 3 EXCHANGE OF SHARES		A-5

3.1.	Exchange Procedures.	A-5
3.2.	Dissenting Shareholders.	A-7

ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SELLER		A-7

4.1.	Organization, Standing, and Power.	A-7
4.2.	Authority of Seller; No Breach by Agreement.	A-8
4.3.	Capitalization of Seller.	A-9
4.4.	Capitalization of Seller Bank.	A-10
4.5.	Seller Subsidiaries.	A-10
4.6.	Regulatory Reports.	A-10
4.7.	Financial Matters.	A-11
4.8.	Books and Records.	A-13
4.9.	Absence of Undisclosed Liabilities.	A-13
4.10.	Absence of Certain Changes or Events.	A-13
4.11.	Tax.	A-14
4.12.	Assets.	A-15
4.13.	Intellectual Property; Privacy.	A-16
4.14.	Environmental Matters.	A-17
4.15.	Compliance with Laws.	A-17
4.16.	Foreign Corrupt Practices.	A-18
4.17.	Community Reinvestment Act Performance.	A-19
4.18.	Labor Relations.	A-19
4.19.	Employee Benefit Plans.	A-21
4.20.	Material Contracts.	A-23
4.21.	Agreements with Regulatory Authorities.	A-24
4.22.	Investment Securities.	A-25
4.23.	Derivative Instruments and Transactions.	A-25
4.24.	Legal Proceedings.	A-25
4.25.	Statements True and Correct.	A-26
4.26.	State Takeover Statutes and Takeover Provisions.	A-26
4.27.	Opinion of Financial Advisor.	A-26

4.28.	Tax and Regulatory Matters.	A-26
4.29.	Loan Matters.	A-27
4.30.	Deposits.	A-28
4.31.	Allowance for Loan and Lease Losses.	A-28
4.32.	Insurance.	A-28
4.33.	OFAC; Sanctions.	A-28
4.34.	Brokers and Finders.	A-29
4.35.	Transactions with Affiliates and Insiders.	A-29
4.36.	No Investment Adviser Subsidiary.	A-29
4.37.	No Broker-Dealer Subsidiary.	A-29
4.38.	No Insurance Subsidiary.	A-29

ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF BUYER		A-29

5.1.	Reserved.	A-29
5.2.	Organization, Standing, and Power.	A-29
5.3.	Authority; No Breach by Agreement.	A-30
5.4.	Capitalization of Buyer.	A-31
5.5.	Buyer Subsidiaries.	A-31
5.6.	Regulatory Reports.	A-31
5.7.	Financial Matters.	A-32
5.8.	Absence of Undisclosed Liabilities.	A-34
5.9.	Absence of Certain Changes or Events.	A-34
5.10.	Tax.	A-34
5.11.	Compliance with Laws.	A-34
5.12.	Legal Proceedings.	A-35
5.13.	Statements True and Correct.	A-35
5.14.	Tax and Regulatory Matters.	A-35
5.15.	Brokers and Finders.	A-36

ARTICLE 6 CONDUCT OF BUSINESS PENDING CONSUMMATION		A-36

6.1.	Affirmative Covenants of Seller.	A-36
6.2.	Negative Covenants of Seller.	A-36
6.3.	Covenants of Buyer.	A-40
6.4.	Reports.	A-41

ARTICLE 7 ADDITIONAL AGREEMENTS		A-41

7.1.	Registration Statement; Proxy Statement/Prospectus; Shareholder Approval.	A-41
7.2.	Acquisition Proposals.	A-42
7.3.	Exchange Listing.	A-44
7.4.	Consents of Regulatory Authorities.	A-44
7.5.	Access to Information; Confidentiality and Notification of Certain Matters.	A-45
7.6.	Press Releases.	A-46
7.7.	Tax Treatment.	A-46
7.8.	Employee Benefits and Contracts.	A-47
7.9.	Indemnification.	A-48
7.10.	Seller Operating Functions.	A-49
7.11.	Shareholder Litigation.	A-50
7.12.	Legal Conditions to Merger; Additional Agreements.	A-50
7.13.	Closing Financial Statements.	A-50
7.14.	Dividends.	A-51
7.15.	Change of Method.	A-51

7.16.	Restructuring Efforts.	A-51
7.17.	Takeover Statutes.	A-51
7.18.	Exemption from Liability under Section 16(b).	A-52
7.19.	Document Archiving.	A-52
7.20.	Subordinated Notes.	A-52

ARTICLE 8 CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE		A-52

8.1.	Conditions to Obligations of Each Party.	A-52
8.2.	Conditions to Obligations of Buyer.	A-53
8.3.	Conditions to Obligations of Seller.	A-55

ARTICLE 9 TERMINATION		A-55

9.1.	Termination.	A-55
9.2.	Effect of Termination.	A-56
9.3.	Non-Survival of Representations and Covenants.	A-56

ARTICLE 10 MISCELLANEOUS		A-57

10.1.	Definitions.	A-57
10.2.	Referenced Pages.	A-68
10.3.	Expenses.	A-70
10.4.	Entire Agreement; No Third-Party Beneficiaries.	A-71
10.5.	Amendments.	A-71
10.6.	Waivers.	A-71
10.7.	Assignment.	A-72
10.8.	Notices.	A-72
10.9.	Governing Law; Jurisdiction; Waiver of Jury Trial	A-73
10.10.	Counterparts; Signatures.	A-73
10.11.	Captions; Articles and Sections.	A-74
10.12.	Interpretations.	A-74
10.13.	Enforcement of Agreement.	A-74
10.14.	Severability.	A-74
10.15.	Confidential Supervisory Information.	A-74

401(k) Plan	A-47
ABCA	A-1
Aggregate Cash Increase	A-4
Agreement	A-1
ALLL	A-28
ASBD	A-30
Bank Merger	A-2
Bankruptcy and Equity Exceptions	A-8
Book-Entry Share	A-3
Burdensome Condition	A-44
Buyer	A-1
Buyer Certificates	A-5
Buyer SEC Reports	A-31
Canceled Shares	A-3
Change in the Seller Recommendation	A-42
Chosen Courts	A-73
Claim	A-48
Closing	A-2
Closing Date	A-2
Closing Financial Statements	A-50

Confidentiality Agreement	A-45
Covered Employees	A-47
DOL	A-20
Effective Time	A-2
Exchange Agent	A-5
Exchange Fund	A-5
FDIA	A-9
FDIC	A-10
Fractional Share Payment	A-4
Holders	A-5
Indemnified Party	A-48
Independent Contractors	A-20
IRS	A-18
Maximum Amount	A-48
Merger	A-1
Money Laundering Laws	A-18
Old Certificate	A-3
Party	A-65
PBGC	A-21
Permitted Liens	A-15
Personally Identifiable Information	A-17
Pool	A-27
Proxy Statement/Prospectus	A-41
Real Property	A-15
Regulation O	A-27
Requisite Regulatory Approvals	A-53
Sanctioned Countries	A-28
Sanctions	A-28
Sarbanes-Oxley Act	A-12
Section 10.351 et seq.	A-7
Seller	A-1
Seller Bank	A-10
Seller Bank Capital Stock	A-66
Seller Bank Common Stock	A-66
Seller Benefit Plan	A-21
Seller Contracts	A-24
Seller Dissenting Shareholders	A-7
Seller Dissenting Shares	A-7
Seller Financial Statements	A-66
Seller Recommendation	A-41
Seller Regulatory Agreement	A-25
Seller Restricted Stock Unit	A-4
Seller SEC Reports	A-11
Seller Shareholder Approval	A-8
Seller Stock Option	A-3
Seller Stock Option Payout	A-3
Seller Warrant	A-4
Seller Warrant Payout	A-4
Seller’s Shareholders’ Meeting	A-41
Subsidiary Plan of Merger	A-2
Surviving Corporation	A-1

Surviving Entity	A-2
Systems	A-16
Takeover Statutes	A-26
Tax Opinion	A-53
TBOC	A-1
TDSML	A-8
Termination Fee	A-71
Voting Agreement	A-1