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Exhibit I
STOCK ACQUISITION AGREEMENT
This STOCK ACQUISITION AGREEMENT ("Agreement") is made and
entered into as of the 30th day of December, 1999, by and among (i) UNITED
TRUST GROUP, INC., an Illinois corporation ("UTG"), and (ii) the individual
shareholders listed on Exhibit A attached hereto ("Shareholders").
RECITALS
Shareholders desire to transfer, and UTG desires to accept,
all of the issued and outstanding shares (the "North Plaza Shares") of capital
stock of North Plaza of Somerset, Inc., a Kentucky corporation (the "Company"),
for the consideration and on the terms set forth in this Agreement.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
TRANSFER OF SHARES; CLOSING
1.1 SHARES. Subject to the terms and conditions of this Agreement,
at the Closing (as defined below), Shareholders will transfer the North Plaza
Shares to UTG, and UTG will acquire the North Plaza Shares from Shareholders.
1.2 CONSIDERATION. The consideration (the "Consideration") for the
North Plaza Shares will be 681,818 shares of newly issued UTG common stock ("UTG
Shares") distributed on a pro rata basis to each of the Shareholders listed on
Exhibit A.
1.3 CLOSING. The purchase and sale provided for in this Agreement
will take place at the offices of Xxxxx, Xxxxxxx & Xxxxx, 0000 Xxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, at 10:00 a.m. (local time) on December 30, 1999, or
via fax and overnight courier, or at such other time, date or place upon which
the parties shall agree in writing (the "Closing").
1.4 CLOSING OBLIGATIONS. At the Closing shareholders will deliver
to UTG the certificates representing the North Plaza Shares, duly endorsed (or
accompanied by duly executed stock powers) for transfer to UTG and UTG will
deliver to Shareholders the UTG Shares in restricted, legended form properly
certificated in the names of each of the Shareholders.
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2. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
2.1 Shareholders represent and warrant, jointly and severally, to
UTG as follows:
2.2 ORGANIZATION AND GOOD STANDING. The Company is a corporation
validly existing and in good standing under the laws of the Commonwealth of
Kentucky, with full corporate power and authority to conduct its business as it
is now being conducted, to own or use the properties and assets that it purports
to own or use, and to perform all its obligations under any agreement, contract,
obligation, promise, or undertaking to which it is a party.
2.3 AUTHORITY; NO CONFLICT.
(a) This Agreement constitutes the legal, valid, and binding
obligation of Shareholders, enforceable against Shareholders in accordance with
its terms. Shareholders have the absolute and unrestricted right, requisite
individual or corporate power, authority, and capacity to execute and deliver
this Agreement and to consummate the transactions contemplated under this
Agreement.
(b) The execution and delivery of this Agreement does not,
and the consummation of the transactions contemplated hereby will not, conflict
with, or result in any violation of, or default under, any contract or result in
any violation of any permit, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to the Company or the Company's assets.
2.3 CAPITALIZATION. The authorized equity securities of the
Company consist of 10,000 shares of common stock, no par value per share, of
which 1,875 shares are issued and outstanding and constitute the North Plaza
Shares, held according to Exhibit A attached hereto . Shareholders are and will
be on the Closing Date the record and beneficial owners and holders of the North
Plaza Shares, free and clear of all liens, claims and encumbrances. No person
other than Shareholders owns any capital stock of the Company or has any
options, warrants or other rights to acquire same.
2.4 TITLE TO PROPERTIES; ENCUMBRANCES. The Company owns (with
good and marketable title in the case of real property) all the properties and
assets (whether real, personal, or mixed and whether tangible or intangible)
that it purports to own. All material properties and assets will be free and
clear of all encumbrances on the Closing Date subject only to (a) liens for
current taxes not yet due, and (b) with respect to owned real property, (i)
minor imperfections of title, if any, none of which is substantial in amount,
materially detracts from the value or impairs the use of the property subject
thereto, or impairs the operations of the Company, and (ii) zoning laws and
other land use restrictions that do not impair the present or anticipated use of
the property subject thereto.
2.5 NO LIABILITIES. The Company will have no liabilities at the
Closing Date other than incidental accounts payable..
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2.6 TAXES. The Company has timely filed or caused to be filed all
federal, state, foreign and local income, franchise, gross receipts, payroll,
sales, use, withholding, occupancy, excise, real and personal property,
employment and other tax returns, tax information returns and reports required
to be filed.
2.7 LEGAL PROCEEDINGS. There are no claims of any kind or any
actions, suits, proceedings, arbitrations or investigations pending or, to
Shareholders' best knowledge, threatened against or affecting the Company
against any asset, interest or right of Shareholders or the Company or which
questions the validity of the transactions contemplated by this Agreement.
2.8 EMPLOYEES. The Company has no employees currently and has had
no employees since the date of its organization; thus, the company has no
obligations under any employment benefit plans of any type.
2.9 COMPLIANCE WITH LAWS. To the best knowledge of the
Shareholders, the Company is in compliance with all laws and regulations,
including material applicable environmen tal laws and regulations.
2.10 CURRENT LEASES. Shareholders have provided UTG with copies of
all of the shopping center leases to which the Company is a party. Each of such
leases is in full force and effect, and none of them are in default.
2.11 FINANCIAL INFORMATION. Shareholders have provided to UTG
current financial statements of the Company. Such financial statements and notes
fairly present the financial condition of the Company as of the date indicated.
2.12 EXAMINATION. Shareholders acknowledge that:
(a) UTG has afforded to Shareholders, full access
throughout the period prior to Closing hereunder to all of the properties,
books, contracts, commitments and records of the Company;
(b) Shareholders have been furnished, during such period
prior to Closing, with all information concerning the business and properties of
UTG as Shareholders have reasonably requested; and
(c) All questions concerning the operations of UTG,
which Shareholders have asked, have been answered to Shareholders' reasonable
satisfaction.
2.13 INVESTMENT INTENT. Shareholders hereby represent and warrant
to UTG that:
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(a) Shareholders are acquiring the UTG Shares for their own accounts
for investment and not with a view to the resale, distribution or
fractionalization thereof, within the meaning of the federal and state
securities laws; and
(b) Shareholders understand that the UTG Shares have not been, and
might never be, registered under the Securities Act of 1933 or applicable state
securities laws.
3. REPRESENTATIONS AND WARRANTIES OF UTG
UTG represents and warrants to Shareholders as follows:
3.1 ORGANIZATION AND GOOD STANDING. UTG is a corporation validly
existing, and in good standing under the laws of the State of Illinois.
3.2 AUTHORITY; NO CONFLICT.
(a) This Agreement constitutes the legal, valid, and
binding obligation of UTG, enforceable in accordance with its terms. UTG has the
absolute and unrestricted right, requisite corporate power, and authority to
execute and deliver this Agreement and to deliver the UTG Shares and to perform
its obligations under this Agreement.
(b) Neither the execution and delivery of this Agreement
by UTG nor the consummation or performance of any of the transactions
contemplated by this Agreement by UTG will give any person the right to prevent,
delay, or otherwise interfere with any of the transactions contemplated by this
Agreement.
3.3 CAPITALIZATION. The authorized equity securities of UTG
consist of 7,000,000 shares of common stock, no par value per share, of which
3,288,448 shares are issued and outstanding. The UTG Shares, when issued on the
Closing Date, will be validly issued, fully paid and non-assessable.
3.4 LEGAL PROCEEDINGS. There are no claims of any kind or any
actions, suits, proceedings, arbitrations or investigations pending or, to UTG's
best knowledge, threatened against or affecting the validity of the transactions
contemplated by this Agreement.
3.5 FINANCIAL INFORMATION. UTG has provided Shareholders with
current financial statements of UTG as of September 30, 1999. Such financial
statements and notes fairly present the financial condition of UTG as of the
date indicated, and for the periods referred to in such financial statements,
all in accordance with GAAP, applied on a consistent basis.
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3.6 EXAMINATION. UTG acknowledges that:
(a) Shareholders have accorded to UTG, full access
throughout the period prior to Closing hereunder to all of the properties,
books, contracts, commitments and records of the Company;
(b) UTG has been furnished, during such period prior to
Closing, with all information concerning the business and properties of the
Company as UTG has reasonably requested; and
(c) All questions concerning the operations of the
Company, which UTG has asked, have been answered to UTG's reasonable
satisfaction.
3.7 INVESTMENT INTENT. UTG hereby represents and warrants to the
Shareholders that:
(a) UTG is acquiring the North Plaza Shares for its own accounts for
investment and not with a view to the resale, distribution or fractionalization
thereof, within the meaning of the federal and state securities laws; and
(b) UTG understands that North Plaza Shares have not been, and might
never be, registered under the Securities Act of 1933 or applicable state
securities laws.
4. CONDITIONS PRECEDENT TO UTG'S OBLIGATION TO CLOSE
UTG's obligation to accept the North Plaza Shares and to take the other
actions required to be taken by it at the Closing is subject to the
satisfaction, at or prior to the Closing, of each of the following conditions
(any of which may be waived by UTG, in whole or in part):
4.1 ACCURACY OF REPRESENTATIONS. Each of the representations and
warranties of the Shareholders in this Agreement must have been accurate in all
material respects as of the date of this Agreement, and must be accurate in all
material respects as of the Closing Date (except for representations and
warranties that are as of a specific date) as if made on the Closing Date.
4.2 PERFORMANCE BY SHAREHOLDERS. Each of the covenants and
obligations that any of the Shareholders is required to perform or to comply
with pursuant to this Agreement at or prior to the Closing, must have been duly
performed and complied with in all material respects.
4.3 CONSENTS. All consents of third parties and all regulatory
approvals or clearances necessary to the consummation of the transactions
contemplated by the Agreement shall have been obtained
4.4 NO PROCEEDINGS. Since the date of this Agreement, there must
not have been commenced or threatened any proceeding (a) involving any
challenge to, or seeking damages or other relief in connection with, any of the
transactions contemplated by this Agreement, or (b) that
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may have the effect of preventing, delaying, making illegal, or otherwise
interfering with any of the transactions contemplated by this Agreement.
4.5 NO MATERIAL ADVERSE CHANGE. Since the date of this Agreement,
there shall have been no material adverse change in the business, financial
condition, operations or prospects of the Company.
5. CONDITIONS PRECEDENT TO SHAREHOLDERS'
OBLIGATION TO CLOSE
The Shareholders' obligation to transfer the North Plaza
Shares to UTG and to take the other actions required to be taken by the
Shareholders at the Closing are subject to the satisfaction, at or prior to the
Closing, of each of the following conditions:
5.1 ACCURACY OF REPRESENTATIONS. Each of UTG's representations and
warranties in this Agreement must have been accurate in all material respects as
of the date of this Agreement, and must be accurate in all material respects as
of the Closing Date as if made on the Closing Date.
5.2 UTG'S PERFORMANCE. Each of the covenants and obligations that
UTG is required to perform or to comply with pursuant to this Agreement at or
prior to the Closing must have been performed and complied with in all material
respects.
5.3 CONSENTS. All consents of third parties and all regulatory
approvals or clearances necessary to the consummation of the transactions
contemplated by the Agreement shall have been obtained.
5.4 NO PROCEEDINGS. Since the date of this Agreement, there must
not have been commenced or threatened any proceeding (a) involving any challenge
to, or seeking damages or other relief in connection with, any of the
transactions contemplated by this Agreement, or (b) that may have the effect of
preventing, delaying, making illegal, or otherwise interfering with any of the
transactions contemplated by this Agreement.
5.5 NO MATERIAL ADVERSE CHANGE. Since the date of this Agreement,
there shall have been no material adverse change in the business, financial
condition, operations or prospects of the Company.
6. CONDITIONS PRECEDENT FOR SHAREHOLDERS' AND UTG'S
OBLIGATIONS TO CLOSE
The obligations of all parties hereto shall be conditioned on the
transactions contemplated by this Agreement qualifying for tax-free
reorganization treatment in accordance with Section 368(a)(1)(B) of the Internal
Revenue Code of 1986, as amended.
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7. TERMINATION
7.1 TERMINATION EVENTS. This Agreement may, by notice given prior
to or at the Closing, be terminated:
(a) by UTG or Shareholders if a material breach of any
provision of this Agreement has been committed by the other party and such
breach has not been waived;
(b) by mutual consent of UTG and Shareholders; or
(c) by either UTG or Shareholders if the Closing has not
occurred (other than through the failure of any party seeking to terminate this
Agreement to comply fully with its obligations under this Agreement) on or
before January 31, 2000, or such later date as the parties may agree upon.
8. INDEMNIFICATION; REMEDIES
8.1 SURVIVAL; RIGHT TO INDEMNIFICATION NOT AFFECTED BY KNOWL
EDGE. All representations, warranties, covenants, and obligations in this
Agreement, and any other certificate or document delivered pursuant to this
Agreement will survive the Closing for a period of one year. The waiver of any
condition based on the accuracy of any representation or warranty, or on the
performance of or compliance with any covenant or obligation, will not affect
the right to indemnification, payment of damages, or other remedy based on such
representations, warranties, covenants, and obligations.
8.2 INDEMNIFICATION AND PAYMENT OF DAMAGES BY SHAREHOLDERS.
Shareholders will indemnify and hold harmless UTG for, and will pay to UTG the
amount of, any damages, arising, directly or indirectly, from or in connection
with: any breach of any representation or warranty made by Shareholders in this
Agreement or any certificate or document delivered by them pursuant to this
Agreement; and any breach by Shareholders of any covenant or obligation of
Shareholders in this Agreement.
8.3 INDEMNIFICATION AND PAYMENT OF DAMAGES BY UTG. UTG will
indemnify and hold harmless Shareholders, and will pay to them the amount of any
damages arising, directly or indirectly, from or in connection with (a) any
breach of any representation or warranty made by UTG in this Agreement or in any
certificate delivered by UTG pursuant to this Agreement, or (b) any breach by
UTG of any covenant or obligation of UTG in this Agreement.
9. GENERAL PROVISIONS
9.1 EXPENSES. Except as otherwise expressly provided in this
Agreement, each party to this Agreement will bear its respective expenses
incurred in connection with the preparation, execution, and performance of this
Agreement and the transactions contemplated by this Agreement, including all
fees and expenses of agents, representatives, counsel, and accountants.
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9.2 NOTICES. All notices, consents, waivers, and other
communications under this Agreement must be in writing and will be deemed to
have been duly given when (a) delivered by hand (with written confirmation of
receipt), (b) sent by telecopier (with written confirmation of receipt),
provided that a copy is mailed by registered mail, return receipt requested, or
(c) when received by the addressee, if sent by a nationally recognized overnight
delivery service (receipt requested), in each case to the appropriate addresses
and telecopier numbers set forth below (or to such other addresses and
telecopier numbers as a party may designate by notice to the other parties):
SHAREHOLDERS: To each of them, in accordance with their address of record at
UTG.
with a copy to: Xxxxx, Xxxxxxx & Xxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telephone No: 000-000-0000
Facsimile No.: 502-589-0309
UTG: United Trust Group, Inc.
0000 Xxxxx Xxxxx Xxxxxx, X.X. Xxx 0000
Xxxxxxxxxxx, Xxxxxxxx 00000
Telephone No: 000-000-0000 (Ext. 323)
Facsimile No.: 000-000-0000
9.3 JURISDICTION; SERVICE OF PROCESS. Any action or proceeding
seeking to enforce any provision of, or based on any right arising out of, this
Agreement may be brought against any of the parties in the courts of the
Commonwealth of Kentucky, County of Lincoln, or it has or can acquire
jurisdiction, in the United States District Court for the Eastern District of
Kentucky, and each of the parties consents to the jurisdiction of such courts
(and of the appropriate appellate courts) in any such action or proceeding and
waives any objection to venue laid therein. Process in any action or proceeding
referred to in the preceding sentence may be served on any party anywhere in the
world.
9.4 FURTHER ASSURANCES. The parties agree (a) to furnish upon
request to each other such further information, (b) to execute and deliver to
each other such other documents, and (c) to do such other acts and things, all
as the other party may reasonably request for the purpose of carrying out the
intent of this Agreement and the documents referred to in this Agreement.
9.5 WAIVER. The rights and remedies of the parties to this
Agreement are cumulative and not alternative. Neither the failure nor any delay
by any party in exercising any right, power, or privilege under this Agreement
or the documents referred to in this Agreement will operate as a waiver of such
right, power, or privilege, and no single or partial exercise of any such right,
power, or privilege will preclude any other or further exercise of such right,
power, or privilege or the exercise of any other right, power, or privilege.
9.6 ENTIRE AGREEMENT AND MODIFICATION. This Agreement supersedes
all prior agreements between the parties with respect to its subject matter and
constitutes (along with
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the documents referred to in this Agreement) a complete and exclusive statement
of the terms of the agreement between the parties with respect to its subject
matter. This Agreement may not be amended except by a written agreement of both
parties.
9.7 ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS. None of
the parties may assign any rights under this Agreement without the prior consent
of the other party. Subject to the preceding sentence, this Agreement will apply
to, be binding in all respects upon, and inure to the benefit of the successors
and permitted assigns of the parties. Nothing expressed or referred to in this
Agreement will be construed to give any Person other than the parties to this
Agreement any legal or equitable right, remedy, or claim under or with respect
to this Agreement or any provision of this Agreement. This Agreement and all of
its provisions and conditions are for the sole and exclusive benefit of the
parties to this Agreement and their successors and assigns.
9.8 SEVERABILITY. If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect. Any provision
of this Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or unenforceable.
9.9 TIME OF ESSENCE. With regard to all dates and time periods
set forth or referred to in this Agreement, time is of the essence.
9.10 GOVERNING LAW. This Agreement will be governed by the laws of
the Commonwealth of Kentucky without regard to conflicts of laws principles.
9.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
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IN WITNESS WHEREOF, the parties have executed and delivered
this Stock Acquisition Agreement as of the date first written above.
"UTG":
UNITED TRUST GROUP, INC.
By: /S/ XXXXXX X. XXXXXXX
Name: XXXXXX X. XXXXXXX
Title: EXECUTIVE VICE PRESIDENT
"SHAREHOLDERS"
/S/ XXXXX X. XXXXXXX
Xxxxx X. Xxxxxxx
/S/ XXXX XXXXXXX
Xxxx Xxxxxxx
/S/ XX XXXXXX
Xx Xxxxxx
DYSCIM HOLDING COMPANY, INC., a
Kentucky Corporation
By: /S/ XXXXX X. XXXXXXX
Name: XXXXX X. XXXXXXX
Its: PRESIDENT
CUMBERLAND LAKE SHELL, INC. a
Kentucky Corporation
By: /S/ XXXX X. XXXXXX
Name: XXXX X. XXXXXX
Its: PRESIDENT
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FIRST SOUTHERN FUNDING, LLC a
Kentucky Limited Liability Company
By: /S/ XXXXX X. XXXXXXX
Name: XXXXX X. XXXXXXX
Its: PRESIDENT
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EXHIBIT A
NORTH PLAZA OF SOMERSET, INC.
SHAREHOLDERS
NUMBER OF SHARES: AS OF 12/27/99 #UTG SHARES TO RECEIVE
Xxxx Xxxxxxx 310 112,704
Xxxx Xxxxxxx 200 72,750
Xx Xxxxxx 15 5,455
Dyscim 381 138,545
Cumberland Lake Shell 271 98,523
First Southern Funding 698 253,841
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1,875 681,818
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