EXHIBIT 1
AGREEMENT AND PLAN OF REORGANIZATION
BY AND BETWEEN
GREENWICH AIR SERVICES, INC.
AND
UNC INCORPORATED
DATED AS OF FEBRUARY 13, 1997
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION , entered into and executed
this 13th day of February 1997 (the "AGREEMENT DATE"), by and between GREENWICH
AIR SERVICES, INC., a Delaware corporation ("GREENWICH"), and UNC INCORPORATED,
a Delaware corporation ("UNC").
RECITALS
A. The respective Boards of Directors of Greenwich and UNC have
determined that it is in the best interests of their respective shareholders
that the businesses and operations of Greenwich and UNC be combined; and
B. The parties have determined that the most practical manner to give
effect to such combination is through the merger (the "MERGER") of UNC with and
into Condor Acquisition Corporation, a Delaware corporation and wholly-owned
subsidiary of Greenwich ("MERGER SUBSIDIARY"), with Merger Subsidiary to be the
surviving corporation of such Merger; and
C. The parties have mutually agreed that each UNC Common Stock
Equivalent (as hereinafter defined) shall be valued at not less than $14.00 and
shall be converted into shares of Greenwich Class B Stock (as hereinafter
defined), subject to the right of such holder of UNC Common Stock Equivalents to
receive a portion of the merger consideration in cash, as hereinafter described;
and
D. For federal income tax purposes, it is intended that the
transactions contemplated by this Agreement shall constitute a reorganization
within the meaning of section 368 of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder.
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties, covenants, agreements and conditions set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
ARTICLE I
DEFINITIONS
In addition to the other terms defined in this Agreement, as used
herein, the following terms shall have the meanings set forth below:
Section 1.1. "AGREEMENT" shall mean this Agreement and Plan of
Reorganization (including the Recitals hereto), together with the Certificate of
Merger and other Exhibits and Schedules attached hereto, as amended from time to
time in accordance with the terms hereof.
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Section 1.2. "AFFILIATE" of any specified Person shall mean any
other Person directly or indirectly controlling or controlled by or under common
control with such specified Person. For purposes of this definition, "control"
(including with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
Section 1.3 "AFFILIATED GROUP" shall mean an affiliated group as
defined in Section 1504 of the Code (or any analogous combined, consolidated or
unitary group defined under any domestic or foreign Tax law) of which any of UNC
and UNC Subsidiaries or Greenwich and Greenwich Subsidiaries are members.
Section 1.4. "AGREEMENT DATE MARKET VALUE" shall mean $23.1281,
being the average of the closing prices of a share of Greenwich Class B Stock,
as reported on Nasdaq for the twenty (20) consecutive trading days ending on the
trading date immediately prior to the Agreement Date.
Section 1.5. "ALLIEDSIGNAL AGREEMENTS" shall mean the collective
reference to the following agreements, as amended from time to time: (a) the
Asset and Stock Purchase Agreement, dated May 26, 1994 between LDC Aviation
Services, Inc. ("XXXXXXX") and AlliedSignal Corporation ("ALLIEDSIGNAL"); (b)
the agreement dated April 25, 1996 between UNC and AlliedSignal, which expires
on December 31, 1997 and authorizes UNC to perform repairs on certain
AlliedSignal parts and components; and (c) the operating agreement dated June
24, 1994 between Xxxxxxx and AlliedSignal expiring June 30, 2009; copies of all
of which AlliedSignal Agreements have been furnished to Greenwich.
Section 1.6. "AUDITED 1996 UNC FINANCIAL STATEMENTS" shall mean the
audited consolidated balance sheet as at December 31, 1996 of the UNC Companies,
together with the related audited consolidated statement of income, statement of
cash flows and statement of stockholders' equity, and with all applicable notes
and schedules, all of which, when issued will have been audited by the UNC
Auditors, in accordance with GAAP and Regulation S-X, as promulgated under the
Securities Act.
Section 1.7. "BASE UNC EQUITY VALUE" shall mean the product obtained
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by multiplying (a) $14.00 by (b) the number of UNC Common Stock Equivalents.
Section 1.8. "CERTIFICATES" has the meaning given in Section 2.6.
Section 1.9. "CLOSING" shall mean the conference held pursuant to
Section 10.1, and "CLOSING DATE" shall mean the date on which the Closing
occurs.
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Section 1.10. "CLOSING DATE MARKET VALUE" shall mean the average
of the closing prices of a share of Greenwich Class B Stock, as reported on
Nasdaq for the twenty trading days ending on the trading date immediately prior
to the Closing Date.
Section 1.11. "CODE" shall mean, as appropriate, the Internal Revenue
Code of 1954 or of 1986, each as amended.
Section 1.12. "CONFIDENTIALITY AGREEMENT" shall mean the
Confidentiality Agreement dated November 8, 1996 between UNC and Greenwich.
Section 1.13. "CONSTITUENT CORPORATIONS" shall mean UNC and the
Merger Subsidiary, which shall be the parties to the Merger.
Section 1.14. "CONTRACT" shall mean any contract, agreement, lease,
license, arrangement, understanding, relationship or commitment, written or
oral.
Section 1.15. "DGCL" shall mean the Delaware General Corporation Law,
as amended.
Section 1.16. "X.X. XXXXXX" shall mean X.X. Xxxxxx Securities Inc.,
financial advisors to UNC.
Section 1.17. "EFFECTIVE TIME" has the meaning given in Section 3.1.
Section 1.18. "EMPLOYEE PLAN EVENT" shall mean: (a) with respect to
any Employee Plan relating to the operations of any of the UNC Companies, any of
the events described in clauses (i) through (xi) below, in each case, as of the
date hereof and as of the Closing Date, as applicable:
(i) a "reportable event" (within the meaning of Section 4043 of
ERISA) for which the requirement of notice within 30 days to the PBGC is
not waived or which is described in 29 C.F.R. Section 2615.12 or 2615.15;
(ii) the failure to meet the minimum funding standard of Section 412
of the Code (whether or not waived in accordance with Section 412(d) of the
Code) or the failure to make by its due date a required installment under
Section 412(m) of the Code;
(iii) the provision by the administrator of any plan pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in
a distress termination described in Section 401(c) of ERISA;
(iv) the withdrawal from any plan during a plan year by a
"substantial employer" as defined in Section 4001(a)(2) of ERISA resulting
in liability pursuant to Section 4062(e) or Section 4063 of ERISA;
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(v) the institution by the PBGC of proceedings to terminate any
plan, or the occurrence of any event or condition which might constitute
grounds under ERISA for the termination or the appointment of a trustee to
administer, any plan;
(vi) the imposition of liability pursuant to Section 4064 or 4069 of
ERISA or by reason of the application of Section 4212(c) of ERISA;
(vii) the complete or partial withdrawal (within the meaning of
Sections 4203 and 4205 of ERISA) from any multiemployer plan if there is
any potential liability therefor, or the receipt of notice from any
multiemployer plan that it is in reorganization or insolvency pursuant to
Sections 4241 or 4245 of ERISA, or that it intends to terminate or has
terminated under Sections 4041A or 4042 of ERISA;
(viii) the occurrence of an act or omission which could give rise to
the imposition of fines, penalties, taxes or related charges under Chapter
43 of the Code or under Section 409, 502(c), 504(1) or 4071 of ERISA in
respect of any plan;
(ix) the assertion of a material claim (other than routine claims
for benefits) against any plan other than a multiemployer plan or the
assets of any plan, or against the plan sponsor in connection with any such
plan;
(x) receipt from the IRS of notice of the failure of any Qualified
Plan to qualify under Section 401(a) of the Code, or the failure of any
trust forming part of any Qualified Plan to qualify for exemption from
taxation under Section 501(a) of the Code;
(xi) the imposition of a lien on any assets of the person
maintaining or contributing to any plan pursuant to Sections 401(a)(29) or
412(n) of the Code or pursuant to ERISA;
Section 1.19. "EMPLOYEE PLAN" shall mean, as of the date hereof and
as of the Closing Date, as applicable, any plan, contract, commitment, program,
policy, arrangement, understanding or practice providing benefits to any
employee, former employee, director or agent of any of the UNC Companies
(whether or not the Person maintains, contributes to, or is bound by any such
plan, contract, commitment, program, policy, arrangement, understanding or
practice, or under which any of the UNC Companies contributes, has contributed
or has any obligation to contribute), including, without limitation (i) any
"employee benefit plan" (within the meaning of Section 3(3) of ERISA), (ii) any
profit-sharing, deferred compensation, bonus, stock option, stock purchase,
pension, retainer, consulting, retirement, severance, welfare or incentive plan,
contract, commitment, program, policy, arrangement, understanding or practice,
(iii) any plan, contract, commitment, program, policy, arrangement,
understanding or practice providing for "fringe benefits" or perquisites,
including, without limitation, benefits relating to automobiles, clubs,
vacation, child care, parenting, sabbatical or sick leave and medical, dental,
hospitalization, life insurance and other types of insurance, (iv) any Pension
Plan, and (v) any Multiemployer Plan.
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Section 1.20. "ENVIRONMENTAL ASSESSMENT" shall mean any one or more
reviews, studies and/or reports by an independent environmental consultant,
which may include, without limitation, one or more Phase I and/or Phase II
studies, updates thereof, compliance audits, health and safety audits, and
related testing for hazardous substances, toxic substances, hazardous wastes
and/or toxic pollutants (as defined under Environmental Laws), for the purpose
of determining whether any of the UNC Companies is in compliance with
Environmental Laws, and/or whether there exists any condition or circumstance
which authorizes or may require any corrective action, cleanup, removal or other
remedial action under Environmental Laws on the part of any of the UNC Companies
or any Real Estate owned or leased by any of the UNC Companies.
Section 1.21. "ENVIRONMENTAL LAWS" shall mean and include all
federal, state and local laws, statutes, regulations, permits, orders,
ordinances, codes, rules and other governmental restrictions, requirements and
duties, including common law, relating to the treatment, storage, disposal or
release of air pollutants, water pollutants or processed waste water or
otherwise relating to human health, the environment or hazardous substances,
including but not limited to the Federal Solid Waste Disposal Act; the Federal
Clean Air Act (including, without limitation, the Clean Air Act Amendments of
1990); the Federal Water Pollution Control Act; the Hazardous Materials
Transportation Act; the Federal Toxic Substances Control Act; the Federal
Resource Conservation and Recovery Act of 1976; the National Environmental
Policy Act; the Federal Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA") and similar state laws, all amendments to any
of the foregoing statutes, and all regulations promulgated by any federal or
state agencies, including the Environmental Protection Agency, regulations of
the Nuclear Regulatory Agency, and regulations of any state department of
natural resources or state environmental protection agency now or at any time
hereinafter in effect.
The terms "hazardous substances", "release", "respond", "response",
and all variations and derivatives thereof shall mean and include, without
limitation, all radioactive materials, asbestos and asbestos-containing
materials, PCBs, petroleum products and by-products, all solid, semi-solid,
liquid or gaseous substances which are toxic, ignitable, corrosive, carcinogenic
or otherwise dangerous to human, plant or animal health, and all substances
defined or listed as "hazardous substances", "toxic substances", "hazardous
waste", "toxic pollutants" in, or otherwise regulated under any Environmental
Law, including, without limitation, the meanings ascribed to them in CERCLA.
Section 1.22. "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
Section 1.23. "EXCHANGE ACT" shall mean the Securities Exchange Act
of 1934, as amended.
Section 1.24. "EXCHANGE AGENT" shall mean any trust company who shall
be designated by Greenwich to act in such capacity as contemplated by Section
2.7 hereof.
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Section 1.25. "EXERCISED STOCK OPTION SHARES" shall mean the shares
of UNC Common Stock actually issued or issuable under outstanding Stock Options
which (a) have been exercised by the holders prior to the Closing Date, and (b)
are not otherwise included in the calculation of the number of issued and
outstanding shares of UNC Common Stock on the Agreement Date set forth in
Section 5.2.
Section 1.26. "GAAP" shall mean generally accepted accounting
principles as in effect in the United States of America at the time of the
preparation of the subject financial statement.
Section 1.27. "GOVERNMENTAL AUTHORITY" shall mean any federal, state,
provincial, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, or any court, in each case whether of the
United States, any of its possessions or territories, or of any foreign nation.
Section 1.28 "GREENWICH" shall mean Greenwich Air Services, Inc., a
Delaware corporation.
Section 1.29. "GREENWICH BUSINESSES" shall mean, as of the date
specified, the collective reference to the Greenwich Commercial Aircraft
Business, the Greenwich Government Business and the Greenwich Aeroderivative
Business, as presently conducted by the Greenwich Companies and their respective
business operations.
Section 1.30. "GREENWICH CLASS A STOCK" shall mean the Class A voting
common stock, $.01 par value per share, of Greenwich.
Section 1.31 "GREENWICH CLASS B STOCK" shall mean the Class B
nonvoting common stock of Greenwich, $.01 par value per share.
Section 1.32 "GREENWICH COMMERCIAL AIRCRAFT BUSINESS" shall mean the
overhaul, maintenance and repair of commercial gas turbine aircraft engines
conducted at the engine service centers of the Greenwich Companies located in
Miami, Florida, Dallas, Texas, Ft. Worth, Texas, McAllen, Texas, East Granby,
Connecticut and Prestwick, Scotland.
Section 1.33. "GREENWICH COMPANIES" shall mean Greenwich, its
Subsidiaries and any Partnerships in which it has an interest.
Section 1.34 "GREENWICH SECURITIES OFFERING" shall mean the public
or private offering, for cash, of shares of Greenwich Class B Stock and/or other
Greenwich securities contemplated by Section 6.21 of this Agreement, whether
pursuant to a Registration Statement on Forms S-1 or S-3 (or other applicable
form for the registration of securities) or pursuant to an applicable exemption
from the registration requirements under the Securities Act.
Section 1.35. "GREENWICH FINANCIAL STATEMENTS" shall mean (a) the
audited consolidated balance sheet of Greenwich as of September 30, 1996, and
the audited consolidated
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statements of earnings, stockholders' equity and cash flows for the fiscal year
then ended, together with the notes thereto, and (b) all other subsequent
interim unaudited quarterly financial statements of Greenwich and Greenwich SEC
Reports, true and correct copies of which have been provided by Greenwich to
UNC.
Section 1.36. "GREENWICH GOVERNMENT BUSINESS" shall mean the aircraft
engine maintenance and repair programs managed and operated by the Greenwich
Companies for domestic and foreign governments and military agencies.
Section 1.37. "GREENWICH AERODERIVATIVE BUSINESS" shall mean the
overhaul, maintenance and repair of gas turbine engines used for industrial and
marine applications, and the management, sale, installation and maintenance of
power stations.
Section 1.38. "GREENWICH MATERIAL ADVERSE EFFECT" shall mean any
circumstances, change in, or effect on, the Greenwich Companies, when taken as a
consolidated whole, or affecting the Greenwich Commercial Aircraft Business, the
Greenwich Government Business or the Greenwich Aeroderivative Business, whether
individually or collectively as to any one or more of such Greenwich Businesses,
which is, or could reasonably be expected to in the future be, materially
adverse to the operations, assets or liabilities, employee relationships,
customer or supplier relationships, earnings or results of operations, financial
projections or forecasts, or the business prospects and condition (financial or
otherwise) of the Greenwich Companies or any one or more of the Greenwich
Businesses, whether individually or taken as a consolidated whole with respect
to the Greenwich Companies.
Section 1.39. "GREENWICH SUBSIDIARY" or "GREENWICH SUBSIDIARIES"
shall mean the singular or plural reference, as the case may be, to any one or
more direct or indirect Subsidiaries of Greenwich, all of which are listed
(including their states of incorporation and percentage of outstanding capital
stock directly or indirectly beneficially owned by Greenwich) on SCHEDULE 1.39.
Section 1.40. "GREENWICH SEC REPORTS" shall mean (a) Greenwich's
Annual Reports on Form 10-K for the fiscal years ended September 30, 1996,
September 30, 1995, and September 30, 1994; and (b) all other documents, reports
and registration statements filed by Greenwich under the Exchange Act or the
Securities Act.
Section 1.41. "INDEBTEDNESS" shall mean, with respect to UNC, any UNC
Subsidiary and the UNC Companies, as a consolidated whole, as applicable (a) all
indebtedness, whether or not contingent, for borrowed money, (b) all obligations
for the deferred purchase price of property or services except trade accounts
payable and accrued liabilities that arise in the ordinary course of business,
(c) all obligations evidenced by notes, bonds, debentures or other similar
instruments, (d) all indebtedness created or arising under any conditional sale
or other title retention agreement with respect to property acquired (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e)
all obligations as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases, (f) all obligations,
contingent or otherwise,
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under acceptance, letter of credit or similar facilities, (g) all obligations to
purchase, redeem, retire, defease or otherwise acquire for value any capital
stock or any warrants, rights or options to acquire such capital stock, valued,
in the case of redeemable preferred stock, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends but only to
the extent such obligation is payable (i) at a fixed or determinable date,
whether by operation of a sinking fund or otherwise, (ii) at the option of any
other Person or (iii) upon the occurrence of a condition not solely within their
control, such as a redemption required to be made out of future earnings, (h)
all Indebtedness of others referred to in clauses (a) through (f) above
guaranteed directly or indirectly in any manner or in effect guaranteed directly
or indirectly through an agreement (A) to pay or purchase such Indebtedness or
to advance or supply funds for the payment or purchase of such Indebtedness, (B)
to purchase, sell or lease (as lessee or lessor) property, or to purchase or
sell services, primarily for the purpose of enabling the debtor to make payment
of such Indebtedness or to assure the holder of such Indebtedness against loss,
(C) to supply funds to or in any other manner invest in the debtor (including
any agreement to pay for property or services irrespective of whether such
property is received or such services are rendered) or (D) otherwise to assure a
creditor against loss, and (i) all Indebtedness referred to in clauses (a)
through (f) above secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any encumbrance on
property (including, without limitation, accounts and contract rights) owned,
even though payment of such Indebtedness has not been assumed or become a
liability.
Section 1.42. "HSR ACT" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended.
Section 1.43. "IRS" shall mean the Internal Revenue Service.
Section 1.44. "JOINT PROXY STATEMENT/PROSPECTUS" shall mean the
Joint Proxy Statement/Prospectus of Greenwich and UNC included in the
Registration Statement and distributed to the stockholders of each company in
connection with the Stockholders Meetings.
Section 1.45. "KNOWLEDGE OF GREENWICH" shall mean the actual
knowledge, after due inquiry, of those officers of Greenwich identified on
SCHEDULE 1.45.
Section 1.46. "KNOWLEDGE OF UNC" shall mean the actual knowledge,
after due inquiry, of those officers of UNC identified on SCHEDULE 1.46.
Section 1.47. "LAW" shall mean any federal, state, provincial, local
or other law or governmental requirement of any kind, and the rules, regulations
and orders promulgated thereunder.
Section 1.48. "MERGER" shall have the meaning given in Section 2.1
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hereof.
Section 1.49. "MERGER SUBSIDIARY" shall mean Condor Acquisition
Corporation, a Delaware corporation and wholly-owned subsidiary of Greenwich.
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Section 1.50 "MULTIEMPLOYER PLAN" shall mean an Employee Plan
that is a "multiemployer plan" within the meaning of Section 3(37) of ERISA, to
which any of the Sellers or Businesses contributes or has contributed or has or
has had an obligation to contribute.
Section 1.51. "NASDAQ" shall mean The Nasdaq National Market.
Section 1.52. "NYSE" shall mean The New York Stock Exchange, Inc.
Section 1.53. "PARTNERSHIP" shall mean any limited or general
partnership, joint venture or other business association, other than a
Subsidiary, in which any party has a direct or indirect interest (collectively,
"PARTNERSHIPS"), all of such Partnerships of Greenwich being listed on SCHEDULE
1.53A attached hereto and all of such Partnerships of UNC being listed on
SCHEDULE 1.53B attached hereto.
Section 1.54 "PENSION PLAN" shall mean an Employee Plan, other than
a Multiemployer Plan, that is either (a) covered by Title IV of ERISA or subject
to the minimum funding standards of Section 412 of the Code, or (b) an Employee
Plan in the nature of a defined contribution or defined benefit pension plan
under the laws of the United Kingdom and/or Scotland.
Section 1.55 "PERSON" shall mean any individual, partnership,
firm, corporation, limited liability company, association, trust, unincorporated
organization or other entity, as well as any syndicate or group that would be
deemed to be a "person" under Section 13(d)(3) of the Exchange Act.
Section 1.56. "PERMITS" shall mean permits, licenses and governmental
authorizations, registrations and approvals.
Section 1.57. "CERTIFICATE OF MERGER" shall mean the certificate of
merger between UNC and the Merger Subsidiary, in form and content reasonably
satisfactory to counsel to UNC and Greenwich.
Section 1.58. "PREFERRED STOCK CONVERSION SHARES" shall mean the
3,571,429 shares of UNC Common Stock issuable upon conversion into UNC Common
Stock of all of the 250,000 issued and outstanding shares of UNC Series B
Preferred Stock (subject to adjustment of such number of Preferred Stock
Conversion Shares as provided in the Series B Preferred Stock Purchase
Agreement).
Section 1.59. "REGISTRATION STATEMENT" shall mean, as applicable (a)
the Registration Statement on Form S-4, including the Joint Proxy
Statement/Prospectus contained therein, to be filed with the SEC with respect to
the Merger and the Greenwich Class B Stock to be offered to the holders of UNC
Common Stock Equivalents in the Merger; and (b) the Registration Statement on
Form S-1 or Form S-3, to be filed by Greenwich with the SEC with
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respect to the Greenwich Class B Stock to be offered to the public for cash, as
contemplated by Section 6.21 hereof.
Section 1.60 "REAL ESTATE" shall mean, with respect to any of the
UNC Companies, as applicable, all of the fee or leasehold ownership right, title
and interest of such UNC Company, in and to all real estate and improvements
owned or leased by any of the UNC Companies and which is used by any of the UNC
Companies in connection with the operation of the UNC Businesses, including
without limitation, all of the real estate and improvements described on
SCHEDULE 1.60.
Section 1.61 [intentionally omitted].
Section 1.62 "SCHEDULES" shall mean the schedules prepared by UNC
and Greenwich, respectively, annexed to this Agreement and made a part hereof,
as the same may be modified or updated by agreement of the parties through and
including the Closing Date. A disclosure contained in any one Schedule shall be
deemed to be a disclosure for any and all purposes hereunder.
Section 1.63. "SEC" shall mean the Securities and Exchange
Commission.
Section 1.64 "SECURITIES ACT" shall mean the Securities Act of 1933,
as amended.
Section 1.65. "SERIES B PREFERRED STOCK PURCHASE AGREEMENT" shall
mean the securities purchase agreement, dated as of October 4, 1995, between UNC
and Network III Holdings, LDC, Xxxxxx Investment Company, Iron City Partners,
Inc., Ariel Fund Ltd. and Pequod Investments, L.P., pursuant to which UNC sold
for $25 million an aggregate of 250,000 shares of UNC Series B Preferred Stock.
Section 1.66 "STOCK OPTIONS" shall mean the collective reference to
(a) the various types of UNC stock options which are authorized for issuance
under the Stock Option Plans, and (b) the outstanding warrants to purchase
shares of UNC Common Stock, all of which are reflected on SCHEDULE 5.2.
Section 1.67 "STOCK OPTION PLANS" shall mean the individual and
collective reference to all qualified and nonqualified stock option plans,
incentive stock option plans, non-employee directors' stock option plans and
other rights to purchase shares of UNC Common Stock granted to employees, and
which are summarized and disclosed on SCHEDULE 5.2.
Section 1.68. "STOCKHOLDERS MEETINGS" shall mean, collectively, the
special or annual meeting of stockholders of Greenwich and the special or annual
meeting of stockholders of UNC called pursuant to Section 3.1 hereof to consider
and approve the transactions contemplated herein, and any adjournments thereof.
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Section 1.69. "SUBSIDIARY" shall mean (i) each corporate entity with
respect to which a party has the right to vote (directly or indirectly through
one or more other entities or otherwise) shares representing 50% or more of the
votes eligible to be cast in the election of directors of such entity, and (ii)
each other corporate entity which constitutes a "significant subsidiary," as
defined in Rule 1-02 of Regulation S-X adopted under the Exchange Act
(collectively, "SUBSIDIARIES"), all of the Subsidiaries of Greenwich being
listed on SCHEDULE 1.39 and all of the Subsidiaries of UNC being listed on
SCHEDULE 1.84.
Section 1.70. "UNC" shall mean UNC Incorporated, a Delaware
corporation.
Section 1.71 "UNC XXXX XXXXXXX BUSINESS" shall mean the provision of
contract services to United States and foreign military and other government
agencies, consisting primarily of aircraft maintenance and pilot training.
Section 1.72 "UNC BUSINESSES" shall mean, as of the specific date
referenced, the collective reference to the UNC Xxxxxxx Business, the UNC
Manufacturing Business and the UNC Xxxx Xxxxxxx Business, as presently conducted
by the UNC Companies and their respective business operations.
Section 1.73. "UNC COMMON STOCK" shall mean the Common Stock, $0.20
par value per share, of UNC.
Section 1.74. "UNC COMMON STOCK EQUIVALENTS" shall mean the
securities representing the total of the following (i) the shares of UNC Common
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Stock issued and outstanding on the Agreement Date (exclusive of Treasury
Shares), (ii) the Preferred Stock Conversion Shares, and (iii) the Exercised
Stock Option Shares.
Section 1.75. "UNC COMPANIES" shall mean UNC, its Subsidiaries and
the Partnerships in which it has an interest.
Section 1.76. "UNC FINANCIAL STATEMENTS" shall mean (a) the audited
consolidated balance sheet of UNC as of December 31, 1995, and the audited
consolidated statements of earnings, stockholders' equity and cash flows for the
fiscal year then ended, together with the notes thereto, and (b) all other
subsequent interim unaudited quarterly financial statements of UNC, through and
including the four quarters ended December 31, 1996, and (c) the UNC SEC
Reports, true and correct copies of which have been provided by Greenwich to
UNC.
Section 1.77. "UNC XXXXXXX BUSINESS" shall mean the overhaul,
maintenance and repair of gas turbine aircraft and aircraft engines and
accessories, airframe retrofits and completion and spare parts distribution,
primarily for business aircraft.
Section 1.78. "UNC MANUFACTURING BUSINESS" shall mean the provision
of specialized aviation product manufacturing and repair services on an
outsourced basis for the
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major engine and airframe OEMs and the provision of manufactured products and
repairs directly to the United States military.
Section 1.79. "UNC MATERIAL ADVERSE EFFECT" shall mean any
circumstances, change in, or effect on, the UNC Companies, when taken as a
consolidated whole, or affecting the Xxxxxxx Aviation Services Business, UNC
Xxxx Xxxxxxx Business or UNC Manufacturing Business, whether individually or
collectively as to any one or more of such UNC Businesses, which is, or could
reasonably be expected to in the future be, materially adverse to the
operations, assets or liabilities, employee relationships, customer or supplier
relationships, earnings or results of operations, financial budgets and
forecasts or the business prospects and condition (financial or otherwise) of
the UNC Companies or any one or more of UNC Businesses, whether individually or
taken as a consolidated whole with respect to the UNC Companies.
Section 1.80. "UNC MATERIAL CONTRACTS" shall mean the types of
Contracts referred to in Section 5.10 of this Agreement to which UNC or any of
UNC Subsidiaries is a party signatory, including, without limitation, the
AlliedSignal Agreements.
Section 1.81. "UNC NOTES" shall mean the collective reference to
(a) UNC's 9-1/8% $100 million principal amount Senior Notes Due 2003, (b) UNC's
11% $125 million principal amount Senior Subordinated Notes Due 2006, and (c)
UNC's 7-1/2% $64.8 million Junior Convertible Subordinated Debentures Due 2006.
Section 1.82. "UNC PREFERRED STOCK" shall mean the collective
reference to 12,000,000 authorized shares of UNC preferred stock, $1.00 par
value per share, of which (a) 250,000 shares of Series A Junior Participating
Preferred Stock are authorized for issuance, (b) 250,000 shares of UNC Series B
Preferred Stock are authorized, and (c) 250,000 of Series C Senior Cumulative
Preferred Stock are authorized.
Section 1.83. "UNC SERIES B PREFERRED STOCK" shall mean the 250,000
authorized, issued and outstanding shares of Series B senior cumulative
convertible UNC Preferred Stock, par value $1.00 per share.
Section 1.84 "UNC SUBSIDIARY" or "UNC SUBSIDIARIES" shall mean the
singular or plural reference, as the case may be, to any one or more direct or
indirect Subsidiaries of UNC, all of which are listed (including their states of
incorporation and percentage of outstanding capital stock directly or indirectly
beneficially owned by UNC) on SCHEDULE 1.84.
Section 1.85. "UNC SEC REPORTS" shall mean (a) UNC's Annual Reports
on Form 10-K for the fiscal years ended December 31, 1995, December 31, 1994,
and December 31, 1993, and (b) all other documents, reports and registration
statements filed by UNC with the SEC pursuant to the Exchange Act and the
Securities Act.
Section 1.86. "TAXES" shall mean any and all taxes, levies, imposts,
duties, assessments, charges and withholdings imposed or required to be
collected by or paid over to any
12
federal, state, local or foreign Governmental Authority or any political
subdivision thereof, including without limitation income, gross receipts, ad
--
valorem, value added, minimum tax, franchise, sales, use, excise, license, real
-------
or personal property, unemployment, disability, stock transfer, mortgage
recording, estimated, withholding or other tax, governmental fee or other like
assessment or charge of any kind whatsoever, and including any interest,
penalties, fines, assessments or additions to tax imposed in respect of the
foregoing, or in respect of any failure to comply with any requirement regarding
Tax Returns.
Section 1.87. "TAX RETURN" shall mean any report, return, information
statement, payee statement or other information required to be provided to any
federal, state, local or foreign Governmental Authority, or otherwise retained,
with respect to Taxes or the UNC Benefit Plans.
Section 1.88. "SALOMON" shall mean Salomon Brothers, Inc., financial
advisors to Greenwich.
ARTICLE II
THE MERGER
Section 2.1. The Merger.
----------
(a) Greenwich has formed Merger Subsidiary as a wholly-
owned subsidiary under the laws of the State of Delaware. Subject to the terms
and conditions of this Agreement, Greenwich will cause Merger Subsidiary to
execute and deliver the Certificate of Merger, and Greenwich, as the sole
stockholder of Merger Subsidiary, will approve the execution, delivery and
performance of the Certificate of Merger by Merger Subsidiary.
(b) Subject to the terms and conditions of this Agreement
and the Certificate of Merger, at the Effective Time, UNC shall be merged into
Merger Subsidiary and the separate existence of UNC shall thereupon cease, with
Merger Subsidiary being the surviving corporation in the Merger (the "SURVIVING
CORPORATION"). Upon the effectiveness of the Merger, Merger Subsidiary shall
possess all of the rights, privileges, powers and franchises of each of the
Constituent Corporations, and all property, real, personal and mixed, and all
debts due to any of the Constituent Corporations on whatever account, as well
for stock subscriptions as all other things in action or belonging to each of
the Constituent Corporations shall be vested in the Surviving Corporation; and
all property, rights, privileges, powers and franchises, and all and every other
interest shall be thereafter as effectually the property of the Surviving
Corporation as they were of the Constituent Corporations, and the title to any
Real Estate vested by deed or otherwise in any of the Constituent Corporations
shall not revert or be in any way impaired by reason of the Merger; but all
rights of creditors and all liens upon any property of any of the Constituent
Corporations shall be preserved unimpaired, and all debts, liabilities and
duties of the Constituent Corporations shall thenceforth attach to the Surviving
Corporation, and may be enforced against it to the same extent as if said debts,
liabilities and duties had been incurred or contracted by it.
13
(c) The Certificate of Merger shall be in form and
substance satisfactory to the parties hereto and their respective legal counsel.
(d) The Certificate of Incorporation of Merger Subsidiary,
as in effect immediately prior to the Effective Time, shall be the Certificate
of Incorporation of the Surviving Corporation, except that Article First thereof
shall be amended to read as follows:
"FIRST: The name of the Corporation is UNC Incorporated"
and thereafter may be amended in accordance with its terms and as provided by
law.
(e) The Bylaws of the Merger Subsidiary as in effect at the
Effective Time shall be the Bylaws of the Surviving Corporation.
(f) The entire board of directors of the Surviving
Corporation shall consist of (i) the existing directors of Merger Subsidiary at
the Effective Time (the "MERGER SUBSIDIARY BOARD"), and (ii) those additional
persons who are listed in SCHEDULE 2.1(F) or who are otherwise acceptable to a
majority of the members of the Merger Subsidiary Board (collectively, with the
Merger Subsidiary Board, the "SURVIVING CORPORATION BOARD"). The members of the
Surviving Corporation Board shall serve until their respective successors are
duly elected and qualified in the manner provided in the Certificate of
Incorporation and Bylaws of the Surviving Corporation, or as otherwise provided
by law. All of the members of the Board of Directors of UNC shall tender their
written resignations effective as of the Effective Time.
(g) The officers of the Surviving Corporation shall initially
consist of the persons listed in SCHEDULE 2.1(G) or such other persons
acceptable to the Surviving Corporation Board; which officers shall serve until
their successors are duly elected and qualified in the manner provided in the
Certificate of Incorporation and Bylaws of the Surviving Corporation, or as
otherwise provided by law.
Section 2.2 Merger Consideration.
--------------------
(a) Base UNC Equity Value. It is the intention of the
---------------------
parties hereto that, as of the Effective Time, by virtue of the Merger and
without any action on the part of any holder: (i) all holders of the UNC Common
Stock Equivalents as at the Effective Time shall be entitled to receive, in the
manner and subject to the adjustments set forth in Section 2.3, aggregate
-----------
consideration (the "MERGER CONSIDERATION") which shall be calculated based on
the Base UNC Equity Value; and (ii) each such holder of UNC Common Stock
Equivalents shall be entitled to receive, in the manner and subject to the
adjustments set forth in Section 2.3, aggregate Merger Consideration equal to
-----------
not less than the number of UNC Common Stock Equivalents owned of record by such
holder on the Closing Date, multiplied by the Base UNC Equity Value Per Share.
As used herein, the term "BASE UNC EQUITY VALUE PER SHARE" shall mean (x) the
Base UNC Equity Value divided by (y) the aggregate number of UNC Common Stock
Equivalents outstanding on the Closing Date.
Based upon the 18,276,681 shares of UNC Common Stock issued and
outstanding (other than Treasury Shares, as hereinafter defined) and the
3,571,429 Preferred Stock Conversion Shares issuable as at December 31, 1996,
such Base UNC Equity Value would
14
have been $305,873,540 on such date, before giving effect to adjustments in such
Base UNC Equity Value resulting from (i) adjustments to the aggregate number of
issuable Preferred Stock Conversion Shares as provided in the Series B Preferred
Stock Purchase Agreement, and (ii) Exercised Stock Option Shares.
In addition to such Base UNC Equity Value, all holders of UNC
Common Stock Equivalents shall be entitled, to the limited extent set forth in
Section 2.3(b) below, to participate in certain appreciation, if any, in the
market value of shares of Greenwich Class B Stock between the Agreement Date and
the Closing Date.
(b) Payment of Merger Consideration. Greenwich shall pay
-------------------------------
the Merger Consideration to the holders of UNC Common Stock Equivalents solely
------
in shares of Greenwich Class B Stock; provided, that, subject to the limitations
--------
and conditions hereinafter set forth, the holders of UNC Common Stock
Equivalents may, pursuant to the procedures set forth in Section 2.7 hereof,
elect prior to the Closing Date to receive all or any portion of their Merger
Consideration in cash. Notwithstanding anything to the contrary, express or
implied, contained in this Agreement, in no event shall Greenwich be obligated
to pay an aggregate amount in cash for all of such UNC Common Stock Equivalents
(the "CASH MERGER CONSIDERATION") which shall be greater than fifty (50%)
-------
percent of the Base UNC Equity Value (the "MAXIMUM REQUIRED CASH MERGER
CONSIDERATION"); provided, that Greenwich may, in its sole and absolute
--------
discretion, pay Cash Merger Consideration in an aggregate amount up to sixty
(60%) percent of the Base UNC Equity Value; provided, further, that, as a
--------
condition to Greenwich's making aggregate payments of the Cash Merger
Consideration in amounts exceeding the Maximum Required Cash Merger
Consideration, (i) holders of a sufficient number of shares of UNC Common Stock
Equivalents shall have elected to receive Cash Merger Consideration, and (ii)
UNC shall have received a legal opinion from counsel acceptable to it to the
effect that payment of Cash Merger Consideration in an aggregate amount equal to
more than fifty (50%) percent of the Base UNC Equity Value will not adversely
affect the Merger qualifying as a reorganization within the meaning of Section
368(a)(2)(D) of the Code.
Section 2.3 Exchange Ratio.
--------------
(a) Each holder of UNC Common Stock Equivalents shall be
entitled to receive on the Effective Date, without any further action on such
holder's part, that number of shares of Greenwich Class B Stock as shall be
determined by multiplying (i) the number of UNC Common Stock Equivalents held by
such holder by (ii) the Exchange Ratio (as hereinafter defined).
(b) For purposes hereof, "EXCHANGE RATIO" shall mean the
fraction (expressed as a decimal to the nearest ten thousandth) determined as
follows:
(i) If the Closing Date Market Value is less than or
equal to $24.86, the Exchange Ratio shall be (A) the Base UNC Equity Value Per
Share divided by (B) the Closing Date Market Value; or
(ii) If the Closing Date Market Value exceeds $24.86
but is less than or equal to $28.59, the Exchange Ratio shall be 0.5632; or
15
(iii) If the Closing Date Market Value exceeds
$28.59, then the Exchange Ratio shall be (A) 115% of the Base UNC Equity Value
per Share divided by (B) the Closing Date Market Value.
Section 2.4 Conversion of Securities. The Merger Consideration shall
------------------------
be issuable on the Effective Time and allocated in the manner hereinafter set
forth.
(a) Merger Subsidiary Shares. All issued and outstanding
------------------------
shares of capital stock of Merger Subsidiary shall be converted into 1,000
issued and outstanding shares of common stock, $.01 par value per share, of the
Surviving Corporation.
(b) Treasury Shares. All issued and outstanding shares of
---------------
UNC Common Stock which are held by UNC, any Subsidiary of UNC, Greenwich, Merger
Subsidiary or any other Subsidiary of Greenwich (collectively, the "TREASURY
SHARES") shall be canceled.
(c) Outstanding UNC Common Stock Equivalents. All remaining
----------------------------------------
issued and outstanding shares of UNC Common Stock Equivalents (other than
Dissenting Shares, as hereinafter defined) shall be canceled and converted into
the right to receive, in full consideration of such shares of UNC Common Stock
Equivalents (i) shares of Greenwich Class B Stock as determined in Section 2.3
or (ii) to the extent elected by a holder of such shares (and available for
payment on a pro-rata basis as hereinafter provided), cash at the rate of the
Base UNC Equity Value Per Share (regardless of the Exchange Ratio then in
effect).
(d) Allocation of Cash Merger Consideration. The Cash Merger
---------------------------------------
Consideration shall be allocated by the Exchange Agent among each holder of UNC
Common Stock Equivalents, on an equitable pro-rata basis, based upon the
aggregate amount by which the Maximum Required Cash Merger Consideration shall
be less than the aggregate amount in Cash Merger Consideration which all holders
of UNC Common Stock Equivalents shall request to receive hereunder as Merger
Consideration. To the extent that the requested amount of Cash Merger
Consideration shall be greater than the Maximum Required Cash Merger
Consideration (subject to increase of such amount to up to sixty (60%) percent
of the Base UNC Equity Value, as hereinabove provided), the actual Cash Merger
Consideration to be received following the Effective Date by each holder of UNC
Common Stock Equivalents shall be proportionately reduced by allocating the
Maximum Required Cash Merger Consideration among all holders of UNC Common Stock
Equivalents, based upon a percentage equal to (i) the amount by which the Cash
Merger Consideration requested by each holder of UNC Stock Equivalents bears to
(ii) the amount of Cash Merger Consideration requested by all holders of UNC
Stock Equivalents.
(e) Dissenting Shares. Notwithstanding the foregoing
-----------------
provisions or any other provision of this Agreement to the contrary, in the
event, and only in the event, that the Merger is approved by less than 90% of
----
the outstanding UNC Common Stock Equivalents entitled to vote at the UNC
Stockholders' Meeting, UNC Common Stock Equivalents held by any holder who shall
have taken the necessary steps under the DGCL to dissent and demand payment and
is otherwise entitled to such payment under the DGCL, if the DGCL provides for
such payment in connection with the Merger ("DISSENTING SHARES") shall not be
converted into the right to receive Merger Consideration at or after the
Effective Time unless and until the
16
consent of UNC, if required by the DGCL, or becomes ineligible for such
appraisal. If a holder of Dissenting Shares shall withdraw his or her demand for
such appraisal with the consent of UNC, if required by the DGCL, or shall become
ineligible for such appraisal (through failure to perfect or otherwise), then,
as of the Effective Time or the occurrence of such event, whichever last occurs,
such holder's Dissenting Shares shall automatically be converted into and
represent the right to receive Merger Consideration as provided above. UNC shall
give Greenwich (i) prompt notice of any written demands for appraisal,
withdrawals of demands for appraisal and any other instruments served pursuant
to Section 262 of the DGCL received by UNC, and (ii) the opportunity to direct
all negotiations and proceedings with respect to demands for appraisal under
Section 262 of the DGCL. UNC will not voluntarily make any payment with respect
to any demands for appraisal and will not, except with the prior written consent
of Greenwich, settle or offer to settle any such demands. Each holder of
Dissenting Shares shall have only such rights and remedies as are granted to
such a holder under Section 262 of the DGCL.
(f) Stock Options. All unexercised UNC Stock Options which
-------------
shall be outstanding as at the Closing Date shall be canceled and converted into
the right to receive, in full consideration of such securities, either (i) a
cash payment equal to the product of multiplying: (A) the aggregate number of
-------
shares of UNC Common Stock issuable upon exercise of such unexercised UNC Stock
Options (the "UNEXERCISED OPTION SHARES"), by (B) the difference between $14.00
----------
and the applicable exercise price per share attributable to such Unexercised
Option Shares (the "SPREAD"), or (ii) at Greenwich's election, that number of
shares of Greenwich Class B Stock which shall be equal to the number of
Unexercised Option Shares, multiplied by the Exchange Ratio multiplied by a
fraction, the numerator of which is the Spread and the denominator of which is
14 (the "CASHLESS EXERCISE").
Section 2.5 Adjustment for Stock Splits, Stock Combination, Dividends
---------------------------------------------------------
and Distributions. In the event and to the extent that:
-----------------
(i) Greenwich at any time between the Agreement Date and the
Effective Time of the Merger shall effect a subdivision of its outstanding
shares of Greenwich Common Stock by any manner, the Exchange Ratio then in
effect immediately before the subdivision shall be proportionately
increased and the share totals resulting therefrom (the "GREENWICH STOCK
AMOUNTS") then in effect immediately before the subdivision shall be
proportionately increased, and conversely, if Greenwich at any time between
the date of this Agreement and the Effective Time shall combine outstanding
shares of Greenwich Common Stock into a smaller number of shares, all of
the Greenwich Exchange Ratios then in effect immediately before the
combination shall be proportionately decreased and the Greenwich Stock
Amounts then in effect immediately before such combination shall be
proportionately decreased. Any adjustment under this subsection shall
become effective at the close of business on the date the subdivision or
combination becomes effective, as the case may be.
(ii) Greenwich at any time between the Agreement Date and the
Effective Time of the Merger make or issue, or fix a record date for the
determination of holders of
00
Xxxxxxxxx Xxxxxx Stock entitled to receive, a dividend or other
distribution payable in additional shares of Greenwich Common Stock, then
and in each such event:
(A) the Greenwich Exchange Ratios in effect immediately prior to
the issuance of such share dividend or distribution or, in the
event a record dated is fixed, as of the close of business on
such record date, as the case may be, shall be decreased, by
multiplying the Greenwich Exchange Ratios then in effect
immediately before the issuance or fixing of the record date, as
the case may be, by a fraction (x) the numerator of which is the
total number of shares of Greenwich Common Stock issued and
outstanding immediately prior to the time of such issuance or the
fixing of such record date, and (y) the denominator of which
shall be the total number of shares of Greenwich Class B Stock
issued and outstanding immediately prior to the time of such
issuance or the fixing of such record date plus thenumber of
----
shares of Greenwich Common Stock issuable in payment of such
dividend or distribution; and
(B) The Greenwich Stock Amounts then in effect shall be
increased as of the time of such issuance or, in the event such
record date is fixed, as of the close of business on such record
date, by multiplying the Greenwich Stock Amounts then in effect
by a fraction (x) the numerator of which is the total number of
shares of Greenwich Common Stock issued and outstanding
immediately prior to the time of such issuance or the close of
business on such record date plus the number of shares of
Greenwich Common Stock issuable in payment of such dividend or
distribution, and (y) the denominator of which shall be the total
number of shares of Greenwich Common Stock issued and outstanding
immediately prior to the time of such issuance or the close of
business on such record date;
provided, however, that if such record date if fixed, the adjustments pursuant
-------- -------
to this Section 2.5 are made and such dividend is not fully paid or such
distribution is not fully made on the date fixed therefor, the Exchange Ratio
and the Greenwich Stock Amounts shall be recomputed accordingly as of the close
of business on date fixed for the dividend or distribution, as the case may be,
and thereafter the Exchange Ratio and Greenwich Stock Amounts shall be adjusted
pursuant to this subjection as of the time of actual payment of such dividends
or distributions.
Section 2.6 Fractional Shares. No fraction of a share of Greenwich
------------------
Class B Stock shall be issued in connection with the conversion of UNC Common
Stock in the Merger and the distribution of Greenwich Class B Stock in respect
thereof, but in lieu of such fraction, the Exchange Agent shall make a cash
payment (without interest) equal to the same fraction of the Closing Date Market
Value of a full share of Greenwich Class B Stock.
Section 2.7. Exchange of Certificates.
------------------------
(a) Before the Effective Time, Greenwich shall appoint the
Exchange Agent to act as the exchange agent in connection with the Merger. Not
less than thirty (30) days prior to the Effective Time, UNC and Greenwich shall
jointly prepare written instructions (which
18
shall be included as an exhibit to the Joint Proxy Statement/Prospectus) to each
holder of UNC Common Stock Equivalents setting forth the terms of this Agreement
and the method by which each such holder may elect to receive Merger
Consideration in the form of shares of Greenwich Class B Stock and Cash Merger
Consideration. From and after the Effective Time, each holder of a certificate
which immediately before the Effective Time represented outstanding shares of
UNC Common Stock (a "UNC CERTIFICATE") shall be entitled to receive in exchange
therefor, upon surrender thereof to the Exchange Agent (i) payment of the
applicable amount of Cash Merger Consideration attributable to such shares of
Common Stock Equivalents, and (ii) a certificate or certificates representing
the number of whole shares of Greenwich Class B Stock into which such holder's
Common Stock Equivalents were converted in the Merger (together with cash in
lieu of fractional shares). Immediately before the Effective Time, Greenwich
will deliver to the Exchange Agent, in trust for the benefit of the holders of
UNC Common Stock Equivalents, shares of Greenwich Class B Stock (together with
cash in immediately available funds in an amount sufficient to pay the aggregate
Cash Merger Consideration and cash in lieu of fractional shares, as provided in
Section 2.6) necessary to make the exchanges contemplated hereby on a timely
basis.
(b) Promptly after the Effective Time, the Exchange Agent shall
mail to each record holder of UNC Common Stock Equivalents as of the Effective
Time, a letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to each UNC Certificate shall pass, only
upon proper delivery of such UNC Certificate to the Exchange Agent) and
instructions for use in effecting the surrender of UNC Certificates in exchange
for payment of the shares of Greenwich Class B Stock (together with cash in lieu
of fractional shares) and the applicable amount of Cash Merger Consideration.
Upon surrender to the Exchange Agent of a UNC Certificate, together with such
letter of transmittal duly executed, and any other required documents, the
holder of such UNC Certificate shall be entitled to receive in exchange therefor
the applicable number of shares of Greenwich Class B Stock (together with cash
in lieu of fractional shares) and such holder's applicable Cash Merger
Consideration, and such UNC Certificate shall forthwith be canceled. No holder
of a UNC Certificate shall be entitled to receive any dividend or other
distribution from Greenwich with respect to the shares of Greenwich Class B
Stock receivable upon surrender of such UNC Certificate until such holder's UNC
Certificate has been surrendered for a certificate or certificates representing
shares of Greenwich Class B Stock. Upon such surrender, there shall be paid to
the holder the amount of any dividends or other distributions (without interest)
which theretofore became payable, but which were not paid by reason of the
foregoing, with respect to the number of whole shares of Greenwich Class B Stock
represented by the certificates issued upon surrender. If payment of the cash
portion of the Merger Consideration per share of UNC Common Stock and/or per
share of UNC Series B Preferred Stock or delivery of Greenwich Class B Stock is
to be made to a person other than the person in whose name the UNC Certificate
surrendered is registered or if any certificate for shares of Greenwich Class B
Stock is to be issued in a name other than that in which the UNC Certificate
surrendered therefor is registered, it shall be a condition of such delivery or
issuance that the UNC Certificate so surrendered shall be properly endorsed or
otherwise in proper form for transfer and that the person requesting such
delivery or issuance shall pay any transfer or other taxes required by reason of
such delivery or issuance to a person
19
other than the registered holder of the UNC Certificate surrendered or establish
to the satisfaction of Greenwich that such tax has been paid or is not
applicable. Until surrendered in accordance with the provisions of this Section
2.7, each UNC Certificate shall represent for all purposes only the right to
receive payment of the shares of Greenwich Class B Stock (and cash in lieu of
fractional shares) and cash portion of the Merger Consideration as provided in
Section 2.2, without any interest thereon.
(c) After the Effective Time, there shall be no transfers on the
stock transfer books of UNC of the shares of UNC Common Stock or shares of UNC
Series B Preferred Stock that were outstanding immediately before the Effective
Time. If, after the Effective Time, UNC Certificates are presented to Greenwich
or UNC for transfer, they shall be cancelled and exchanged for payment of the
shares of Greenwich Class B Stock (and cash in lieu of fractional shares) and
applicable amount of per share cash Merger Consideration as provided in Section
2.3, in accordance with the procedures set forth in this Section 2.7.
(d) Any shares of Greenwich Class B Stock (and any accrued
dividends and distributions thereon), and any cash delivered to the Exchange
Agent for payment of the applicable per share cash Merger Consideration or
payment in lieu of fractional shares, that remain unclaimed by the former
stockholders of UNC on the first anniversary of the Effective Time shall be
delivered by the Exchange Agent to Greenwich. Any former stockholders of UNC who
have not theretofore complied with this Section 2.7 shall thereafter look only
to Greenwich for satisfaction of their claim for the consideration set forth in
the Certificate of Merger, without any interest thereon.
(e) Notwithstanding the foregoing, neither Greenwich nor UNC
shall be liable to any holder of shares of UNC Common Stock or UNC Series B
Preferred Stock for any payment of the per share cash portion of the Merger
Consideration or for any shares of Greenwich Class B Stock (or dividends or
distributions with respect thereto) delivered to a public official pursuant to
any applicable abandoned property, escheat or similar law.
Section 2.8 Transfer Taxes. If any cash to be paid in the Merger
--------------
is to be paid to a person other than the holder in whose name the certificate
representing shares of UNC Common Stock or Series B Preferred Stock surrendered
in exchange therefor is registered, it shall be a condition of such exchange
that the certificate so surrendered shall be properly endorsed or that the
certificate so surrendered shall be properly endorsed or otherwise in proper
form for transfer and that the person requesting such exchange shall pay to the
Exchange Agent any transfer or other taxes required by reason of the payment of
such cash to a person other than the registered holder of the certificate
surrendered, or shall establish to the satisfaction of the Exchange Agent that
such tax has been paid or is not applicable.
ARTICLE III ARTICLE III
STOCKHOLDER APPROVAL
Section 3.1. Stockholder Approval
--------------------
20
(a) This Agreement shall be submitted for consideration and
approval to the holders of shares of Greenwich Class A Stock at a special or
annual meeting of stockholders duly held for such purpose by Greenwich.
(b) This Agreement and the Certificate of Merger shall be
submitted for consideration and approval to the holders of shares of UNC Common
Stock and, to the extent required by applicable Law, the holders of shares of
UNC Series B Preferred Stock, at a special or annual meeting of stockholders
duly held for such purpose by UNC. Each of the stockholders of UNC identified in
SCHEDULE 3.1A has duly executed and delivered to Greenwich a letter agreement in
the form of SCHEDULE 3.1B with respect to, among other things, such
stockholder's agreement to vote all shares of UNC Common Stock over which such
stockholder exercises voting control for approval of this Agreement and the
Certificate of Merger at the UNC Stockholders Meeting.
(c) UNC and Greenwich shall each promptly call a meeting of its
stockholders for the purpose of voting upon this Agreement and the Merger and
UNC and Greenwich each agrees that this Agreement and the Merger shall be
submitted at a meeting of the stockholders of UNC and UNC shall take all steps
necessary to duly call, give notice of, convene, and hold such meetings (the
"STOCKHOLDERS' MEETING"). The Stockholders' Meeting shall be held as soon as
practicable following the date upon which the Registration Statement of which
the Joint Proxy Statement/Prospectus shall constitute a part shall be declared
effective by the SEC.
Section 3.2 Effective Time of the Merger. Greenwich and UNC shall
----------------------------
coordinate and cooperate with respect to the timing of the Stockholders Meetings
and shall endeavor to hold such meetings on the same day and as soon as
practicable after the date hereof. The respective Boards of Directors of
Greenwich and UNC shall recommend that their respective stockholders approve
this Agreement and the Certificate of Merger and the transactions contemplated
hereby and thereby, and such recommendation shall be contained in the Joint
Proxy Statement/Prospectus. On the first business day on or by which (i) this
Agreement and the Certificate of Merger have been duly approved by the requisite
vote of the holders of shares of Greenwich Class A Stock and UNC Common Stock,
and (ii) the Closing of the transactions contemplated by this Agreement and the
Certificate of Merger shall have occurred, or such later date as shall be agreed
upon by Greenwich and UNC, a Certificate of Merger shall be filed in accordance
with the DGCL, and the Merger shall become effective in accordance with the
terms of the Certificate of Merger at the time and date contemplated therein
(such time and date being referred to herein as the "EFFECTIVE TIME").
21
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF GREENWICH
Greenwich represents and warrants to UNC as follows:
Section 4.1. Organization and Authority of the Greenwich Companies.
-----------------------------------------------------
Each of the Greenwich Companies is duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of organization. Each of
the Greenwich Companies has full corporate or partnership power to carry on its
respective business as it is now being conducted and to own, operate and hold
under lease its assets and properties as, and in the places where, such
properties and assets now are owned, operated or held. Each of the Greenwich
Companies is duly qualified as a foreign entity to do business, and is in good
standing, in each jurisdiction where the failure to be so qualified would have a
Greenwich Material Adverse Effect. SCHEDULE 1.39 constitutes a true and complete
list of all of the Subsidiaries of Greenwich, and SCHEDULE 1.53A constitutes a
true and complete list of all of the Partnerships in which Greenwich has an
interest. The copies of the Amended and Restated Certificate of Incorporation
and the Bylaws of Greenwich which have been delivered to UNC are complete and
correct and in full force and effect on the date hereof.
Section 4.2. Capitalization
--------------
(a) As of the date hereof, the authorized capital stock of
Greenwich consists of (i) 25,000,000 shares of Class A Stock, of which, as of
December 13, 1996, 6,971,213 shares of Greenwich Class A Stock were issued and
outstanding and 2,900 shares were held in treasury, (ii) 25,000,000 shares of
Class B Stock of which, as of December 13, 1996, 9,778,176 shares of Class B
Stock were issued and outstanding and 36,262 shares were held in treasury, (iii)
2,500,000 shares of preferred stock, par value $.01 per share, issuable in such
series and with such rights and designations as the Board of Directors of
Greenwich may, from time to time determine (the "GREENWICH PREFERRED STOCK"), of
which, as of September 30, 1996, no shares of Greenwich Preferred Stock were
issued and outstanding. All shares of Greenwich Class A Stock and Class B Stock
outstanding as of the date hereof are duly authorized, validly issued, fully
paid and nonassessable and were not issued in violation of, or subject to, any
preemptive rights. All publicly traded shares of Greenwich Class A Stock and
Greenwich Class B Stock have been approved for trading on Nasdaq.
(b) Except as set forth in Schedule 4.2, as of September 30,
------------
1996, there are no existing options, warrants, calls, subscriptions or other
rights or other agreements, commitments, understandings or restrictions of any
character relating to the issued or unissued capital stock of Greenwich or any
of the Greenwich Subsidiaries or obligating Greenwich or any of its Subsidiaries
to issue, transfer or sell or cause to be issued, transferred or sold any shares
of capital stock of, or other equity interests in, Greenwich or of any of its
Subsidiaries or securities convertible into or exchangeable for such shares, or
equity interests or obligating Greenwich or any of its Greenwich Subsidiaries to
grant, extend or enter into any such option, warrant, call, subscription or
other right, agreement, commitment, understanding or restriction. As of the date
of this Agreement, except as set forth in Schedule 4.2, there are no contractual
------------
obligations of
22
Greenwich or any of its Subsidiaries to repurchase, redeem or otherwise acquire
any shares of capital stock of Greenwich or any of its Subsidiaries. Since
September 30, 1996 and prior to the date hereof, no shares of Greenwich Common
Stock have been issued except issuances of shares reserved for issuance as
described above or otherwise issued in the ordinary course of business.
(c) The authorized capital stock of the Merger Subsidiary
consists of 1,000 shares of common stock, no par value per share, of which, as
of the date hereof, 100 shares were issued and outstanding and owned directly by
Greenwich. Merger Subsidiary has been formed solely for the purpose of engaging
in the transactions contemplated by this Agreement and has engaged in no
business and incurred no liabilities other than in connection with this
Agreement and the transactions contemplated hereby.
(d) Except as contemplated by this Agreement or in the Greenwich
SEC Reports, there are, as of the date hereof, no shares of capital stock of
Greenwich or Merger Subsidiary authorized or outstanding, and there are no
outstanding subscriptions, options, conversion or exchange rights, warrants or
other agreements, claims or commitments obligating Greenwich or Merger
Subsidiary or any of their respective Subsidiaries to issue, transfer, deliver
or sell or issue additional shares of the capital stock of Greenwich or Merger
Subsidiary or obligating Greenwich or Merger Subsidiary or any of their
respective Subsidiaries to grant, extend or enter into any such agreement or
commitment.
Section 4.3. Authority Relative to this Agreement. The execution,
------------------------------------
delivery and performance of this Agreement and of all of the other documents and
instruments required hereby by Greenwich are within the corporate power of
Greenwich. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by the Board of
Directors of Greenwich and no other corporate proceedings on the part of
Greenwich are necessary to authorize this Agreement or to consummate the
transactions contemplated herein (other than the approval of the transactions
contemplated in this Agreement by a majority of the total votes cast by holders
of Greenwich Class A Stock at the Greenwich Stockholders Meeting contemplated by
the Joint Proxy Statement/Prospectus). This Agreement and all of the other
documents and instruments required hereby have been or will be duly and validly
executed and delivered by Greenwich and (assuming the due authorization,
execution and delivery hereof and thereof by UNC) constitute or will constitute
valid and binding agreements of Greenwich, enforceable against Greenwich in
accordance with their respective terms, except to the extent that enforceability
may be governed by equitable principles, applicable bankruptcy laws, and other
rights affecting creditors generally.
Section 4.4. Consents and Approvals; No Violations. Except as set
-------------------------------------
forth on SCHEDULE 4.4 and except for (i) any applicable requirements of the
Securities Act, the Exchange Act, the HSR Act, Nasdaq and any applicable filings
under state securities, "Blue Sky" or takeover laws, (ii) the filing and
recordation of a certificate of merger as required by the DGCL and (iii) those
required filings, registrations, consents and approvals listed in SCHEDULE 4.4,
no filing or registration with, and no permit, authorization, consent or
approval of, any public body or authority is necessary or required in connection
with the execution and delivery of this Agreement by Greenwich or for the
consummation by Greenwich of the transactions contemplated by this Agreement,
where the failure to obtain such permit, authorization, consent
23
or approval would have a Greenwich Material Adverse Effect. Assuming that all
filings, registrations, permits, authorizations, consents and approvals
contemplated by the immediately preceding sentence have been duly made or
obtained, neither the execution, delivery and performance of this Agreement nor
the consummation of the transactions contemplated hereby by Greenwich will (i)
conflict with or result in any breach of any provision of the Certificates of
Incorporation, bylaws, partnership or joint venture agreements or other
organizational documents of any of the Greenwich Companies, (ii) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, cancellation
or acceleration) under, or otherwise result in any diminution of any of the
rights of the Greenwich Companies with respect to, any of the terms, conditions
or provisions of any note, bond, mortgage, indenture, license, Contract or other
instrument or obligation to which any of the Greenwich Companies is a party or
by which it or any of them or any of their properties or assets may be bound, or
(iii) violate any order, writ, injunction, decree, statute, rule or regulation
applicable to any of the Greenwich Companies or any of their properties or
assets, except, in the case of subsections (ii) or (iii) above, for violations,
------
breaches or defaults that would not have a Greenwich Material Adverse Effect and
that will not prevent or delay the consummation of the transactions contemplated
hereby.
Section 4.5. Reports. The Greenwich SEC Reports complied, as of their
-------
respective dates of filing, in all material respects with all applicable
requirements of the Securities Act, the Exchange Act and the rules and
regulations of the SEC. As of their respective dates, none of such forms,
reports or documents, including without limitation any financial statements or
schedules included therein, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading in light of the
circumstances under which they were made. Each of the balance sheets (including
the related notes and schedules) included in the Greenwich SEC Reports and in
the Greenwich Fiscal 1996 Financial Statements fairly presented the consolidated
financial position of the Greenwich Companies as of the respective dates
thereof, and the other related financial statements (including the related notes
and schedules) included therein fairly presented the results of operations and
cash flows of the Greenwich Companies for the respective fiscal periods or as of
the respective dates set forth therein. Each of the financial statements
(including the related notes and schedules) included in the Greenwich SEC
Reports complied as to form with the applicable accounting requirements and
rules and regulations of the SEC. Each of the financial statements (including
the related notes and schedules) included in the Greenwich SEC Reports and in
the Greenwich Financial Statements was prepared in accordance with GAAP
consistently applied during the periods presented, except as otherwise noted
therein and subject to normal year-end and audit adjustments in the case of any
unaudited interim financial statements. Except for Greenwich, none of the
Greenwich Companies is required to file any forms, reports or other documents
with the SEC, Nasdaq, the NYSE or any other domestic securities exchange or
Governmental Authority with jurisdiction over United States securities laws.
Greenwich has timely filed all reports, registration statements and other
filings required to be filed by it with the SEC.
Section 4.6. Absence of Certain Events. Except as set forth in the
-------------------------
Greenwich SEC Reports filed before the date of this Agreement or in the 1996
fiscal year Greenwich
24
Financial Statements, since September 30, 1996, none of the Greenwich Companies
has suffered any change in its business, financial condition or results of
operations that has had or could reasonably be expect to have a Greenwich
Material Adverse Effect. Except as disclosed in the Greenwich SEC Reports or in
the Greenwich Financial Statements, or as otherwise specifically contemplated by
this Agreement, there has not been since September 30, 1996: (i) any labor
dispute that has had or is expected to have a Greenwich Material Adverse Effect;
(ii) any change in the accounting policies or practices of Greenwich; or (iii)
any damage, destruction or loss, whether covered by insurance or not, which
could reasonably be expect to have a Greenwich Material Adverse Effect.
Section 4.7. Joint Proxy Statement/Prospectus. None of the
--------------------------------
information with respect to the Greenwich Companies to be included in the Joint
Proxy Statement/Prospectus or the Registration Statement will, in the case of
the Joint Proxy Statement/Prospectus or any amendments thereof or supplements
thereto, at the time of the mailing of the Joint Proxy Statement/Prospectus or
any amendments thereof or supplements thereto, and at the time of the Greenwich
Stockholders Meeting, or, in the case of the Registration Statement, at the time
it becomes effective and at the Effective Time, contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. The Joint Proxy
Statement/Prospectus will comply as to form in all material respects with the
provisions of the Securities Act and the Exchange Act and the rules and
regulations promulgated thereunder, except that no representation is made by
Greenwich with respect to information supplied by UNC or any Affiliate of UNC
for inclusion in the Joint Proxy Statement/Prospectus.
Section 4.8. Litigation. Except as set forth in the Greenwich SEC
----------
Reports, there is no action, suit, proceeding or, to the Knowledge of Greenwich,
investigation pending or, to the Knowledge of Greenwich, threatened against or
relating to any of the Greenwich Companies at law or in equity, or before any
federal, state, provincial, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, whether in the United
States or otherwise, that is expected, in the reasonable judgment of Greenwich,
to have a Greenwich Material Adverse Effect or that seeks restraint,
prohibition, damages or other relief in connection with this Agreement or the
consummation of the transactions contemplated hereby.
Section 4.9. Compliance with Law. Except as set forth in the
-------------------
Greenwich SEC Reports, the conduct of the Greenwich Businesses by the Greenwich
Companies and their use of their assets does not violate or conflict, and has
not violated or conflicted, with any Law, which violation or conflict could
reasonably be expected to have a Greenwich Material Adverse Effect.
Section 4.10. Fees and Expenses of Brokers and Others. None of the
---------------------------------------
Greenwich Companies (a) has had any dealings, negotiations or communications
with any broker or other intermediary in connection with the transactions
contemplated by this Agreement, (b) is committed to any liability for any
brokers' or finders' fees or any similar fees in connection with the
transactions contemplated by this Agreement, or (c) has retained any broker or
other intermediary to act on its behalf in connection with the transactions
contemplated by this Agreement,
25
except that Greenwich has engaged Salomon to represent it in connection with
such transactions and shall pay all of Salomon's fees and expenses in connection
with such engagement.
Section 4.11. Accuracy of Information. Neither this Agreement nor any
-----------------------
other document provided by the Greenwich Companies or their employees or agents
to UNC in connection with the transactions contemplated herein contains an
untrue statement of a material fact or omits to state a material fact necessary
to make the statements contained therein not misleading.
Section 4.12. Absence of Undisclosed Liabilities. None of the
----------------------------------
Greenwich Companies has, as of the date hereof, or will have, as of the
Effective Time, any liabilities or obligations of any kind, whether absolute,
accrued, asserted or unasserted, contingent or otherwise, that would be required
to be disclosed on a consolidated balance sheet of Greenwich prepared as of such
date in accordance with GAAP, except liabilities, obligations or contingencies
that were (a) reflected on or accrued or reserved against in the consolidated
balance sheet of Greenwich as of September 30, 1996, that is included in the
1996 Greenwich Financial Statements, or reflected in the notes thereto, or (b)
incurred after the date of such balance sheet in the ordinary course of business
and consistent with past practices and which, individually or in the aggregate,
will not have a Greenwich Material Adverse Effect. None of the Greenwich
Companies is a party to any Contract, or subject to any charter or other
corporate or partnership restriction, or subject to any judgment, order, writ,
injunction, decree, rule or regulation, which will have a Greenwich Material
Adverse Effect.
ARTICLE V ARTICLE V
REPRESENTATIONS AND WARRANTIES OF UNC
UNC represents and warrants to Greenwich as follows:
Section 5.1. Organization and Authority of the UNC Companies. Each
-----------------------------------------------
of the UNC Companies is duly organized, validly existing and in good standing
under the laws of its respective jurisdiction of organization. Each of the UNC
Companies has full corporate or partnership power to carry on its respective
business as it is now being conducted and to own, operate and hold under lease
its assets and properties as, and in the places where, such properties and
assets now are owned, operated or held. Each of the UNC Companies is duly
qualified as a foreign entity to do business, and is in good standing, in each
jurisdiction where the failure to be so qualified would have a UNC Material
Adverse Effect. SCHEDULE 1.84 constitutes a true and complete list of all of the
Subsidiaries of UNC, and SCHEDULE 1.53B constitutes a true and complete list of
all of the Partnerships in which UNC has an interest. The copies of the Amended
and Restated Certificate of Incorporation and the Bylaws of UNC which have been
delivered to Greenwich are complete and correct and in full force and effect on
the date hereof.
Section 5.2. Capitalization. The authorized capital stock of UNC
--------------
consists of: (a) 12,000,000 authorized shares of UNC Preferred Stock, $1.00 par
value per share, of which, on the Agreement Date (i) 250,000 shares of Series A
Junior Participating Preferred Stock are
26
authorized, none of which are issued, (ii) 250,000 shares of Series B Preferred
Stock are authorized, issued and outstanding, and (iii) 250,000 shares of Series
C Senior Cumulative Preferred Stock are authorized, none of which are issued;
and (b) 50,000,000 authorized shares of UNC Common Stock, of which, as at
December 31, 1996 (i) 18,276,681 shares of UNC Common Stock are issued and
outstanding, and (ii) an aggregate of 3,571,429 shares of UNC Common Stock are
reserved for issuance pursuant to outstanding Stock Options granted under UNC
Stock Option Plans described on SCHEDULE 5.2 . All shares of capital stock of
UNC which are outstanding as of the date hereof and which are reserved for
issuance pursuant to UNC Preferred Stock and UNC Stock Options, are duly
authorized, and are, or when issued will be, validly issued, fully paid and
nonassessable, and are, or when issued will not be, not subject to, nor were
they issued in violation of, any preemptive rights. Except as set forth in
SCHEDULE 5.2 and in this Section 5.2, there are no shares of capital stock of
UNC authorized or outstanding, and there are no subscriptions, options,
conversion or exchange rights, warrants or other agreements, claims or
commitments of any nature whatsoever obligating UNC or any UNC Subsidiary to
issue, transfer, deliver or sell, or cause to be issued, transferred, delivered
or sold, additional shares of the capital stock of UNC or any UNC Subsidiary or
obligating UNC or any UNC Subsidiary to grant, extend or enter into any such
agreement or commitment. UNC has not, since December 31, 1995, declared or
paid any dividend on, or declared or made any distribution with respect to, or
authorized or effected any split-up or any other recapitalization of, any of the
UNC Common Stock, or directly or indirectly redeemed, purchased or otherwise
acquired any of its outstanding capital stock or agreed to take any such action
and will not take any such action during the period between the date of this
Agreement and the Effective Time. Except as set forth on SCHEDULE 5.2, there
are no outstanding options, warrants, subscriptions, conversion or exchange
rights, agreements, claims, commitments, or other rights to purchase or acquire
any capital stock of UNC or any of the other UNC Companies, and there are no
Contracts pursuant to which UNC or any of the other UNC Companies is bound to
sell or issue any shares of its capital stock, nor are there any Contracts
obligating UNC or any of the other UNC Companies to enter into or grant any such
securities or rights. All outstanding shares of UNC Common Stock are duly
listed for trading on the NYSE.
(b) Set forth in SCHEDULE 1.84 is the name, percentage ownership
and jurisdiction of incorporation of each UNC or any UNC Subsidiary. All the
outstanding shares of capital stock of each UNC Subsidiary have been validly
issued and are fully paid, nonassessable and are not subject to, nor were they
issued in violation of, any preemptive rights. All outstanding shares of capital
stock of UNC Subsidiaries are owned, directly or indirectly, by UNC, and, except
as disclosed in SCHEDULE 1.84 or in the UNC Financial Statements, are owned free
and clear of all liens, charges, encumbrances, security interests, equities,
options, restrictions on voting rights or rights of disposition, and claims or
third party rights of whatever nature. Except for UNC Subsidiaries, UNC does not
own, directly or indirectly, any capital stock or other equity securities of any
corporation, partnership, joint venture or other entity or have any direct or
indirect equity or ownership interest in any corporation, partnership, joint
venture or other entity, other than as disclosed on SCHEDULE 5.2 or SCHEDULE
1.53B.
27
Section 5.3. Authority Relative to this Agreement. The execution,
------------------------------------
delivery and performance of this Agreement and of all of the other documents and
instruments required hereby by UNC are within the corporate power of UNC. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by the Board of
Directors of UNC and no other corporate proceedings on the part of UNC are
necessary to authorize this Agreement or to consummate the transactions
contemplated herein (other than, with respect to the Merger, the approval of the
Certificate of Merger by a majority of the outstanding shares of UNC Common
Stock and UNC Series B Preferred Stock at the UNC Stockholders Meeting). This
Agreement and all of the other documents and instruments required hereby have
been or will be duly and validly executed and delivered by UNC and (assuming the
due authorization, execution and delivery hereof and thereof by Greenwich)
constitute or will constitute valid and binding agreements of UNC, enforceable
against UNC in accordance with their respective terms, except to the extent that
enforceability may be governed by equitable principles, applicable bankruptcy
laws, and other rights affecting creditors generally..
Section 5.4. Consents and Approvals; No Violations. Except for (i) any
-------------------------------------
applicable requirements of the Securities Act, the Exchange Act, the HSR Act,
and any applicable filings under state securities, "Blue Sky" or takeover laws,
(ii) the filing and recordation of a certificate of merger as required by the
DGCL and (iii) those required filings, registrations, consents and approvals
listed in SCHEDULE 5.4, no filing or registration with, and no permit,
authorization, consent or approval of, any public body or authority is necessary
or required in connection with the execution and delivery of this Agreement by
UNC or for the consummation by UNC of the transactions contemplated by this
Agreement. Assuming that all filings, registrations, permits, authorizations,
consents and approvals contemplated by the immediately preceding sentence and
the other provisions of this Agreement have been duly made or obtained, neither
the execution, delivery and performance of this Agreement nor the consummation
of the transactions contemplated hereby by UNC will (i) conflict with or result
in any breach of any provision of the Certificates of Incorporation, bylaws,
partnership or joint venture agreements or other organizational documents of any
of the UNC Companies, (ii) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give rise to
any right of termination, cancellation or acceleration) under, or otherwise
result in any diminution of any of the rights of the UNC Companies with respect
to, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, Contract or other instrument or obligation to which any of
the UNC Companies is a party or by which it or any of them or any of their
properties or assets may be bound, or (iii) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to any of the UNC Companies or
any of their properties or assets except, in the case of subsections (ii) or
(iii) above, for violations, breaches or defaults that would not have a UNC
Material Adverse Effect and that will not prevent or delay the consummation of
the transactions contemplated hereby.
Section 5.5. Reports. The UNC SEC Reports complied, as of their
-------
respective dates of filing, in all material respects with all applicable
requirements of the Securities Act, the Exchange Act and the rules and
regulations of the SEC. As of their respective dates, none of
28
such forms, reports or documents, including without limitation any financial
statements or schedules included therein, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading in light of
the circumstances under which they were made. Each of the balance sheets
(including the related notes and schedules) included in the UNC SEC Reports
fairly presented the consolidated financial position of the UNC Companies as of
the respective dates thereof, and the other related financial statements
(including the related notes and schedules) included therein fairly presented
the results of operations and cash flows of the UNC Companies for the respective
fiscal periods or as of the respective dates set forth therein. Each of the
financial statements (including the related notes and schedules) included in the
UNC SEC Reports (i) complied as to form with the applicable accounting
requirements and rules and regulations of the SEC, and (ii) was prepared in
accordance with GAAP consistently applied during the periods presented, except
as otherwise noted therein and subject to normal year-end and audit adjustments
in the case of any unaudited interim financial statements. Except for UNC, none
of the UNC Companies is required to file any forms, reports or other documents
with the SEC, Nasdaq, the NYSE or any other foreign or domestic securities
exchange or Governmental Authority with jurisdiction over securities laws. UNC
has timely filed all reports, registration statements and other filings required
to be filed by it with the SEC.
Section 5.6. Absence of Certain Events. Except as set forth in the
-------------------------
UNC SEC Reports filed before the date of this Agreement or as otherwise
specifically disclosed in SCHEDULE 5.6, none of the UNC Companies has suffered
any change in its business, financial condition, results of operations or
prospects that has had or will have a UNC Material Adverse Effect upon the UNC
Companies. Except as disclosed in the UNC SEC Reports or in SCHEDULE 5.6, or as
otherwise specifically contemplated by this Agreement, there has not been: (i)
any entry into any agreement or understanding or any amendment of any agreement
or understanding between any of the UNC Companies on the one hand, and any of
their respective directors, officers or employees on the other hand, providing
for employment of any such director, officer or employee or any general or
material increase in the compensation, severance or termination benefits payable
or to become payable by any of the UNC Companies to any of their respective
directors, officers or employees (except, in each case, in the ordinary course
of business that are consistent with past practices and that, in the aggregate,
do not result in a material increase in benefits or compensation expense), or
any adoption of or increase in any bonus, insurance, pension or other employee
benefit plan, payment or arrangement (including, without limitation, the
granting of stock options or stock appreciation rights or the award of
restricted stock) made to, for or with any such director, officer or employee;
(ii) any labor dispute that has had or is expected to have a UNC Material
Adverse Effect; (iii) any entry by any of the UNC Companies into any material
commitment, agreement, license or transaction (including, without limitation,
any borrowing, capital expenditure, sale of assets or any mortgage, pledge, lien
or encumbrances made on any of the properties or assets of any of the UNC
Companies) other than in the ordinary and usual course of business; (iv) any
change in the accounting policies or practices of UNC; (v) any damage,
destruction or loss, whether covered by insurance or not, which has had or will
have a UNC Material Adverse Effect; or (vi) any agreement to do any of the
foregoing.
29
Section 5.7. Joint Proxy Statement/Prospectus. None of the
--------------------------------
information with respect to the UNC Companies to be included in the Joint Proxy
Statement/Prospectus or the Registration Statement will, in the case of the
Joint Proxy Statement/Prospectus or any amendments thereof or supplements
thereto, at the time of the mailing of the Joint Proxy Statement/Prospectus or
any amendments thereof or supplements thereto, and at the time of the UNC
Stockholders Meeting, or, in the case of the Registration Statement, at the time
it becomes effective and at the Effective Time, contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. The Joint Proxy
Statement/Prospectus will comply as to form in all material respects with the
provisions of the Securities Act, the Exchange Act and the rules and regulations
promulgated thereunder, except that no representation is made by UNC with
respect to information supplied by Greenwich or any affiliate of Greenwich for
inclusion in the Joint Proxy Statement/Prospectus.
Section 5.8. Litigation. There is no action, suit, proceeding or, to
----------
the Knowledge of UNC, investigation pending or, to the Knowledge of UNC,
threatened against or relating to any of the UNC Companies at law or in equity,
or before any federal, state, provincial, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, whether in the
United States or otherwise, that is expected, in the reasonable judgment of UNC,
to have a UNC Material Adverse Effect upon the UNC Companies or that seeks
restraint, prohibition, damages or other relief in connection with this
Agreement or the consummation of the transactions contemplated hereby. To its
Knowledge, UNC has furnished to Greenwich, copies of all attorneys' audit
letters, and has furnished or will upon request furnish to Greenwich such other
documents available to UNC as may be requested by Greenwich in respect of
pending litigation affecting the UNC Companies.
Section 5.9. Title to and Sufficiency of Assets.
----------------------------------
(a) As of the date hereof the UNC Companies own, and as of
the Effective Time the UNC Companies will own, good and marketable title to all
of their assets constituting personal property which is material to any of the
UNC Subsidiaries or any UNC Business (excluding, for purposes of this sentence,
assets held under leases), free and clear of any and all mortgages, liens,
encumbrances, charges, claims, restrictions, pledges, security interests or
impositions, except as disclosed in UNC Financial Statements or in SCHEDULE 5.9.
Such assets, together with all assets held by the UNC Companies under leases,
include all tangible and intangible personal property, Contracts and rights
necessary or required for the operation of the UNC Businesses by the UNC
Companies in accordance with past practice.
(b) As of the date hereof the UNC Companies own, and as of
the Effective Time the UNC Companies will own, good and marketable title to all
of their Real Estate which is material to any of the UNC Subsidiaries or any UNC
Business (excluding, for purposes of this sentence, Real Estate leases), free
and clear of any and all mortgages, liens, encumbrances, charges, claims,
restrictions, pledges, security interests or impositions, except as disclosed in
UNC Financial Statements or in SCHEDULE 5.9. Such Real Estate assets, together
30
with all Real Estate assets held by the UNC Companies under leases, are adequate
for the operation of the UNC Businesses by the UNC Companies as presently
conducted. The leases to all Real Estate occupied by UNC which is material to
the operation of the UNC Businesses are in full force and effect and no event
has occurred which with the passage of time, the giving of notice, or both,
would constitute a default or event of default by any of the UNC Companies or,
to the Knowledge of UNC, any other Person who is a party signatory thereto.
Section 5.10. Contracts.
---------
(a) Before the Agreement Date UNC has provided Greenwich with
access to, and upon Greenwich's request UNC shall at all times subsequent to the
Agreement Date furnish Greenwich with true and correct copies of, all of the
Contracts to which any UNC Company is a party that constitute: (i) a lease of
any interest in any real property; (ii) a lease of any personal property with
aggregate annual rental payments in excess of $100,000; (iii) an option to
acquire or lease any interest in real property or a right of first refusal with
respect thereto; (iv) an agreement to purchase or sell a capital asset or an
interest in any business entity for a price in excess of $100,000 or a right of
first refusal with respect thereto; (v) an agreement relating to the borrowing
or lending of money or the purchase or sale of securities; (vi) a guaranty,
contribution agreement or other agreement that includes any indemnification,
contribution or support obligation; (vii) an agreement limiting in any material
respect the ability of any UNC Company to compete in any line of business or
with any person; (viii) a customer supply or services agreement to which any of
the UNC Companies is a party or by which any of the UNC Companies is bound
pursuant to which the total amount payable (or reasonably expected to be
payable) to the UNC Companies in any calendar year exceeds $250,000 (a "MATERIAL
CUSTOMER AGREEMENT"); (ix) an employment or consulting agreement to which any of
the UNC Companies is a party or by which any of the UNC Companies is bound; and
(ix) any other agreement involving an amount over its term in excess of $250,000
(collectively, a "UNC MATERIAL CONTRACT"). In addition to the UNC Material
Contracts, UNC shall furnish Greenwich with true and complete copies of all
other Contracts which Greenwich shall reasonably request.
(b) With respect to UNC Material Contracts, except where a
breach of the warranties contained in this Section 5.10 would not have a UNC
---
Material Adverse Effect: (i) the UNC Companies have performed and, to the
Knowledge of UNC, every other party has performed, each material term, covenant
and condition of each of the Material Contracts to which any UNC Company is a
party that is to be performed by any of them at or before the date hereof, (ii)
all of such UNC Material Contracts are in full force and effect and no event has
occurred which, with the passage of time or the giving of notice or both, would
constitute a default, event of default or other breach by UNC or applicable UNC
Subsidiary party thereto which would entitle the other Person who is a signatory
to such UNC Material Contract to terminate the same or declare a default or
event of default thereunder; (iii) neither UNC or any UNC Subsidiary has UNC
Knowledge of that the other Person to any such Material Contract intends to
terminate or amend such UNC Material Contract in any respect, (iv) UNC or the
applicable UNC Subsidiary party to such UNC Material Contract maintain good
business relationships with the other Person to such UNC Material Contract, and
(v) UNC or the applicable UNC Subsidiary party to such UNC Material Contract has
no reason to believe that
31
the other Person to any such UNC Material Contract does not intend to continue
to conduct business with UNC or such UNC Subsidiary upon the expiration of the
stated term of such UNC Material Contract.
Section 5.11. Labor Matters.
-------------
(a) Except as set forth in SCHEDULE 5.11, with respect to
employees of the UNC Companies: (i) to the Knowledge of UNC, no senior
executive, key employee or group of employees has any plans to terminate
employment with any of the UNC Companies; (ii) there is no unfair labor practice
charge or complaint against any UNC Company pending or, to the Knowledge of UNC,
threatened before the National Labor Relations Board or any other comparable
authority; (iii) there is no demand for recognition made by any labor
organization or petition for election filed with the National Labor Relations
Board or any other comparable authority, (iv) no grievance or any arbitration
proceeding arising out of or under collective bargaining agreements is pending
and, to the Knowledge of UNC, no claims therefor have been threatened; (v) the
consummation of the Merger and related transactions contemplated by this
Agreement will not give rise to termination of any existing collective
bargaining agreement or permit any labor organization to reopen negotiations in
respect of wages, hours or working conditions under any of such existing
collective bargaining agreements; and (vi) there is no litigation, arbitration
proceeding, governmental investigation, administrative charge, citation or
action of any kind pending or, to the Knowledge of UNC, proposed or threatened
against any UNC Company relating to employment, employment practices, terms and
conditions of employment or wages and hours.
(b) Except as identified in SCHEDULE 5.11, no UNC Company has
any collective bargaining relationship or duty to bargain with any Labor
Organization (as such term is defined in Section 2(5) of the National Labor
Relations Act, as amended), and no UNC Company has recognized any labor
organization as the collective bargaining representative of any of its
employees.
Section 5.12. Employee Benefit Plans.
(a) SCHEDULE 5.12 sets forth a true and complete list of each
Employee Plan within the meaning of Section 4001 of ERISA, for the benefit of
any employee or former employee of any of the UNC Companies or any ERISA
Affiliate. SCHEDULE 5.12 sets forth each of the Employee Plans that is an
"employee benefit plan," as that term is defined in Section 3(3) of ERISA (the
"ERISA PLANS").
(b) With respect to each Employee Plan, UNC has heretofore
delivered or will deliver to Greenwich upon request true and complete copies of
each of the following documents:
(i) a copy thereof;
(ii) a copy of the most recent annual report and actuarial
report, if required under ERISA and the most recent report prepared with respect
thereto in accordance with Statement of Financial Accounting Standards No. 87,
Employer's Accounting for Pensions;
32
(iii) a copy of the most recent Summary Employee Plan
Description required under ERISA with respect thereto;
(iv) if the Employee Plan is funded through a trust or any
third party funding vehicle, a copy of the trust or other funding agreement and
the latest financial statements thereof; and
(v) the most recent determination letter received from
the Internal Revenue Service with respect to each Employee Plan intended to
qualify under Section 401 of the Code.
(c) Except as set forth in SCHEDULE 5.12, no Employee Plan (or
other employee benefit plan, program, agreement or arrangement to which UNC, any
UNC Subsidiary or any ERISA Affiliate made, or was required to make,
contributions during the five (5) year period ending on the Closing Date) is
subject to Title IV of ERISA.
(d) Except as set forth in SCHEDULE 5.12, neither UNC, any UNC
Subsidiary nor any ERISA Affiliate, nor any ERISA Plan, nor any trust created
thereunder, nor, to UNC's Knowledge, any trustee or administrator thereof has
engaged in a transaction in connection with which UNC, any UNC Subsidiary nor
any ERISA Affiliate, any ERISA Plan, any such trust, or any trustee or
administrator thereof, or any party dealing with any ERISA Plan or any such
trust could be subject to either a civil penalty assessed pursuant to Section
409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the
Code, which, in either case, if sustained would have a UNC Material Adverse
Effect.
(e) Except as set forth in SCHEDULE 5.12, no ERISA Employee Plan
or any trust established thereunder has incurred any "accumulated funding
deficiency" (as defined in Section 302 of ERISA and Section 412 of the Code),
whether or not waived, as of the last day of the most recent fiscal year of each
ERISA Plan ended prior to the Closing Date; and all contributions required to be
made with respect thereto (whether pursuant to the terms of any ERISA Plan or
otherwise) on or prior to the Closing Date have been timely made.
(f) Except as set forth in SCHEDULE 5.12, no ERISA Plan is a
"multiemployer pension plan," as defined in Section 3(37) of ERISA, nor is any
ERISA Plan a plan described in Section 4063(a) of ERISA.
(g) Except as set forth in SCHEDULE 5.12, each Employee Plan has
been operated and administered in all material respects in accordance with its
terms and applicable law, including but not limited to ERISA and the Code.
(h) Except as set forth in SCHEDULE 5.12, each ERISA Plan
intended to be "qualified" within the meaning of Section 401(a) of the Code is
so qualified and the trusts maintained thereunder are exempt from taxation under
Section 501(a) of the Code.
(i) Except as set forth in SCHEDULE 5.12, no Employee Plan
provides benefits, including without limitation death or medical benefits
(whether or not insured), with respect to current or former employees of UNC or
an ERISA Affiliate beyond their retirement or other termination of service
(other than (i) coverage mandated by applicable law or (ii) death
33
benefits or retirement benefits under any "employee pension plan," as that term
is defined in Section 3(2) of ERISA).
(j) Except as set forth in SCHEDULE 5.12, the consummation of
the transactions contemplated by this Agreement will not (i) entitle any current
or former employee or officer of UNC, any UNC Subsidiary or any ERISA Affiliate
to severance pay, unemployment compensation or any other payment, except as
expressly provided in this Agreement or (ii) accelerate the time of payment or
vesting, or increase the amount of compensation due any such employee or
officer, whether pursuant to any Employee Plan or any employment agreement with
such existing or former officer or employee of UNC, any UNC Subsidiary or any
ERISA Affiliate.
(k) Except as set forth in SCHEDULE 5.12, there are no pending,
or to UNC's Knowledge, threatened or anticipated claims by or on behalf of any
Employee Plan, by any employee or beneficiary covered under any such Employee
Plan, or otherwise involving any such Employee Plan (other than routine claims
for benefits).
Section 5.13. Tax Matters.
-----------
(a) Definitions. As used in this Agreement:
-----------
(i) "TAX RULING" means a written ruling of a taxing
authority relating to Taxes.
(ii) "CLOSING AGREEMENT" means a written and legally
binding agreement with a taxing authority relating to Taxes.
(b) Representations. Except for representations and
---------------
warranties made with respect to federal and state income Taxes, all
representations and warranties made in this Section 5.13(b) with respect to
Taxes are made to the best Knowledge of UNC. Subject to the foregoing, and
except as set forth in SCHEDULE 5.13:
(i) Filing of Tax Returns. UNC and each of UNC
Subsidiaries have filed all Tax Returns required to be filed by each of them and
such Tax Returns are in all material respects true, complete and correct and
filed on a timely basis.
(ii) Payment of Taxes. UNC and each of UNC
Subsidiaries have, within the time and in the manner prescribed by law, paid all
Taxes that are currently due and payable, except for those contested in good
faith and for which adequate reserves have been taken.
(iii) Tax Liens. There are no tax liens upon the
assets of UNC or of any of UNC Subsidiaries except for statutory liens for
current Taxes not yet due.
34
(iv) Withholding Taxes. UNC and each of UNC Subsidiaries
have complied in all material respects with the provisions of the Code relating
to the withholding of Taxes, as well as similar provisions under any other laws,
and have, within the time and in the manner prescribed by law, withheld and paid
over to the proper governmental authorities all amounts required.
(v) Extensions of Time for Filing. Neither UNC nor any of
UNC Subsidiaries has requested any extension of time within which to file any
Tax Return, which Tax Return has not since been filed.
(vi) Waivers of Statute of Limitations. Neither UNC nor
any of UNC Subsidiaries has executed any outstanding waivers or comparable
consents regarding the application of the statute of limitations with respect to
any Taxes or Tax Returns.
(vii) No Deficiencies. The statute of limitations for the
assessment of any federal income Taxes has expired for all income Tax Returns of
UNC and of each of UNC Subsidiaries or such income Tax Returns have been
examined by the Internal Revenue Service for all periods. No deficiency for any
income Taxes has been proposed, asserted or assessed against UNC or any of UNC
Subsidiaries which has not been resolved and paid in full. There are no
deficiencies for state income Taxes which individually, or in the aggregate,
would have a UNC Material Adverse Effect.
(viii) Audit, Administrative and Court Proceedings. No
audits or other administrative proceedings or court proceedings are presently
pending with regard to any Taxes or Tax Returns of UNC or any of UNC
Subsidiaries.
(ix) Powers of Attorney. No power of attorney currently in
force has been granted by UNC or any of UNC Subsidiaries concerning any Taxes or
Tax Returns.
(x) Tax Rulings. Neither UNC nor any of UNC Subsidiaries
has received a Tax Ruling or entered into a Closing Agreement with any taxing
authority that would have a UNC Material Adverse Effect.
(xi) Tax Sharing Agreements. Neither UNC nor any UNC
Subsidiary is a party to any agreement relating to allocating or sharing of
Taxes which has not been disclosed on its Tax Returns.
Section 5.14 Insurance and Reinsurance. SCHEDULE 5.14 sets forth all
-------------------------
insurance and reinsurance policies relating to UNC and any UNC Subsidiary. UNC
and each UNC Subsidiary has given any and all notices and made any and all
payments required to maintain such policies in full force and effect. Except as
set forth in SCHEDULE 5.14: neither UNC nor any UNC Subsidiary has received
notice of default under any such policy, and has not received written notice or,
to the knowledge of UNC or any UNC Subsidiary, oral notice of any pending
35
or threatened termination or cancellation, coverage limitation or reduction or
material premium increase with respect to such policy.
Section 5.15 Officers' and Directors' Liability Insurance. UNC
--------------------------------------------
has heretofore delivered to Greenwich a copy of its officers' and directors'
liability insurance policy.
Section 5.16. Compliance with Law. The conduct of the UNC Businesses
-------------------
of the UNC Companies and their use of their assets does not violate or
conflict, and has not violated or conflicted, with any Law, which violation or
conflict could have a UNC Material Adverse Effect.
Section 5.17 Environmental Matters. The conduct of the UNC
---------------------
Businesses of the UNC Companies, and their ownership, use or occupancy of any
properties for which the UNC Companies have liability under Environmental Laws,
does not violate or conflict, and has not violated or conflicted, with any
Environmental Law, which violation or conflict could have a UNC Material Adverse
Effect.
Section 5.18. Transactions With Affiliates. For purposes of this
----------------------------
Section, the term "AFFILIATE" means (a) any holder of 2% or more of the voting
securities of UNC, (b) any director, officer or senior executive of the UNC
Companies, (c) any person, firm or corporation that directly or indirectly
controls, is controlled by or is under common control with any of the UNC
Companies or (d) any member of the immediate family of any of such persons.
Except as set forth in SCHEDULE 5.18 or in the UNC SEC Reports, since December
31, 1995, the UNC Companies have not, in the ordinary course of business or
otherwise, (a) purchased, leased or otherwise acquired any material property or
assets or obtained any material services from, (b) sold, leased or otherwise
disposed of any material property or assets or provided any material services to
(except with respect to remuneration for services rendered in the ordinary
course of business as a director, officer or employee of one or more of the UNC
Companies), (c) entered into or modified in any manner any Contract with, or (d)
borrowed any money from, or made or forgiven any loan or other advance (other
than expense or similar advances made in the ordinary course of business) to,
any Affiliate. Except as set forth in SCHEDULE 5.18 or in the UNC SEC Reports,
(a) the Contracts of the UNC Companies do not include any material obligation or
commitment between any of the UNC Companies and any Affiliate, (b) the assets of
the UNC Companies do not include any receivable or other obligation or
commitment from an Affiliate to any of the UNC Companies and (c) the liabilities
of the UNC Companies do not include any payable or other obligation or
commitment from any of the UNC Companies to any Affiliate. To the Knowledge of
UNC and except as set forth in SCHEDULE 5.18 or in the UNC SEC Reports, no
Affiliate of any of the UNC Companies is a party to any Contract with any
customer or supplier of UNC that affects in any material manner the business,
financial condition or results of operation of any of the UNC Companies.
Section 5.19. Fees and Expenses of Brokers and Others. None of the UNC
---------------------------------------
Companies (a) has had any dealings, negotiations or communications with any
broker or other intermediary in connection with the transactions contemplated by
this Agreement, (b) is committed to any liability for any brokers' or finders'
fees or any similar fees in connection with
36
the transactions contemplated by this Agreement or (c) has retained any broker
or other intermediary to act on its behalf in connection with the transactions
contemplated by this Agreement, except that UNC has engaged X.X. Xxxxxx and
Fieldstone Partners ("FIELDSTONE") to represent it in connection with such
transactions, and shall pay all of X.X. Xxxxxx'x and Fieldstone's fees and
expenses in connection with such engagement, up to a maximum amount of fees not
to exceed $4.0 million in the aggregate. Greenwich shall have no responsibility
for any of such fees or expenses.
Section 5.20. Accuracy of Information. Neither this Agreement nor any
-----------------------
other document provided by the UNC Companies or their employees or agents to
Greenwich in connection with the transactions contemplated herein contains an
untrue statement of a material fact or omits to state a material fact necessary
to make the statements contained therein not misleading.
Section 5.21. Absence of Undisclosed Liabilities. None of the UNC
----------------------------------
Companies have, as of the date hereof, or will have, as of the Effective Time,
any liabilities or obligations of any kind, whether absolute, accrued, asserted
or unasserted, contingent or otherwise, that would be required to be disclosed
on a consolidated balance sheet of UNC prepared as of such date, in accordance
with GAAP, except liabilities, obligations or contingencies that were (a)
reflected on or accrued or reserved against in the consolidated balance sheet of
UNC as of September 30, 1996, included in the UNC SEC Reports or reflected in
the notes thereto, or (b) incurred after the date of such balance sheet in the
ordinary course of business and consistent with past practices and which,
individually or in the aggregate, would not have a UNC Material Adverse Effect.
None of the UNC Companies is a party to any Contract, or subject to any charter
or other corporate or partnership restriction, or subject to any judgment,
order, writ, injunction, decree, rule or regulation, which will have a UNC
Material Adverse Effect.
ARTICLE VI
COVENANTS AND AGREEMENTS
Section 6.1. Conduct of the Businesses of UNC and Greenwich.
----------------------------------------------
(a) UNC Companies. Except as otherwise expressly provided in
-------------
this Agreement, during the period from the date of this Agreement to the
Effective Time, the UNC Companies will conduct their respective operations
according to their ordinary and usual course of business and consistent with
past practice, and will use their best efforts to preserve intact their business
organizations, to keep available the services of their officers and employees
and to maintain satisfactory relationships with licensors, licensees, suppliers,
contractors, distributors, customers and others having material business
relationships with them. Without limiting the generality of the foregoing, and
except as otherwise expressly provided in this Agreement, before the Effective
Time, none of the UNC Companies will, without the prior written consent of
Greenwich:
37
(i) amend its Articles or Certificate of Incorporation,
bylaws, partnership or joint venture agreements or other organizational
documents;
(ii) authorize for issuance or issue, sell or deliver
(whether through the issuance or granting of options, warrants, commitments,
subscriptions, rights to purchase or otherwise) any stock of any class or any
other securities or interests, including, without limitation, any additional
shares of UNC Common Stock or shares of UNC Preferred Stock, except as may be
required by the existing terms of the Series B Preferred Stock Agreement, any
UNC Employee Plan, or any issued and outstanding UNC Stock Options disclosed
pursuant to this Agreement;
(iii) split, combine or reclassify any shares of its capital
stock or declare, set aside or pay any dividend or other distribution (whether
in cash, stock or property or any combination thereof) in respect of its capital
stock, or redeem or otherwise acquire any of its securities or any securities of
their respective Subsidiaries and Partnerships;
(iv) (A) except in the ordinary course of business, incur or
assume any Indebtedness not currently outstanding (provided, that except for
additional advances used for general working capital purposes which are
currently permitted under existing senior secured lines of credit, UNC shall not
incur any additional Indebtedness for money borrowed), (B) except in the
ordinary course of business, assume, guarantee, endorse or otherwise become
liable or responsible for the obligations of any person, other than a Subsidiary
or Partnership, (C) make any loans, advances or capital contributions to, or
investments in, any other person (other than customary loans or advances to
employees and non-affiliated customers in accordance with past practice), (D)
except in the ordinary course of business, enter into any Material Contract, or
alter, amend, modify or exercise any option under any existing Material
Contract, (E) enter into any other Contract, or alter, amend, modify or exercise
any option under any existing Contract (other than a Material Contract), except
than in the ordinary course of business or in connection with the transactions
contemplated by this Agreement, or (F) make or commit to any single capital
expenditure which is in excess of $100,000 or capital expenditures which are, in
the aggregate, in excess of $1.0 million, except for capital expenditures (x)
required to be made under Contracts entered into before the Agreement Date, and
(y) which are reflected in the 1997 UNC capital budget previously furnished to
Greenwich and (z) which are legally required to be made under such Contracts;
(v) enter into, adopt or amend (except as may be required
by Law or as provided in this Agreement) any bonus, profit sharing,
compensation, severance, termination, stock option, stock appreciation right,
restricted stock, pension, retirement, deferred compensation, employment,
consulting, severance or other employee benefit agreements, trusts, plans, funds
or other arrangements for the benefit or welfare of any director, officer or
employee, or increase in any manner the compensation or fringe benefits of any
director, officer or employee or pay any benefit not required by any existing
plan or arrangement (including, without limitation, the granting of stock
options, stock appreciation rights, shares of restricted stock or performance
units) or enter into any Contract to do any of the foregoing (except, in each
38
of the above instances, for normal increases or other payments in the ordinary
course of business that are consistent with past practices and that, in the
aggregate, do not result in a material increase in benefits or compensation
expense; provided, that UNC shall give Greenwich 72 hours notice before
--------
effecting any change in compensation for any employee whose current annual base
compensation equals or exceeds $100,000, even if Greenwich's approval shall not
be required hereunder);
(vi) except as otherwise permitted in this Section 6.1,
acquire, sell, lease or dispose of any Real Estate or other material assets,
other than inventory in the ordinary course of business;
(vii) accelerate the collection of accounts receivable,
delay the payment of accounts payable or take any action with respect to credit,
collection and fiscal policies and practices, other than in the ordinary course
of business and in a manner consistent with past practice with respect to
accounting policies or practices;
(viii) make any material Tax election or settle or
compromise any material federal, state, local or foreign income Tax liability;
(ix) except for the payment of professional fees, pay,
discharge or satisfy any material claims, liabilities or obligations (absolute,
accrued or unasserted, contingent or otherwise), other than the payment,
discharge or satisfaction in the ordinary course of business of liabilities
reflected or reserved against in UNC's most recent quarterly or annual financial
statements or incurred in the ordinary course of business since the date
thereof; or
(x) hold any meeting of its stockholders except to the
extent required by the request of the stockholders entitled to call a meeting
under UNC's bylaws or the DGCL;
(xi) take any action that would or is reasonably likely to
result in any of the covenants and agreements set forth in this Article VI or
any of the conditions set forth in Article VII not being satisfied as of the
Closing Date; or
(xii) agree in writing or otherwise to take any of the
foregoing actions.
(b) Greenwich Companies. Except as otherwise expressly provided
-------------------
in this Agreement, during the period from the date of this Agreement to the
Effective Time, the Greenwich Companies will conduct their respective operations
according to their ordinary and usual course of business and consistent with
past practice, and will use their best efforts to preserve intact their business
organizations, to keep available the services of their officers and employees
and to maintain satisfactory relationships with licensors, licensees, suppliers,
contractors, distributors, customers and others having material business
relationships with them. Without limiting the generality of the foregoing, and
except as otherwise expressly provided in
39
this Agreement, before the Effective Time, none of the Greenwich Companies will,
without the prior written consent of UNC:
(i) amend its Amended and Restated Articles of
Incorporation or Bylaws;
(ii) authorize for issuance or issue, sell or deliver
(whether through the issuance or granting of options, warrants, commitments,
subscriptions, rights to purchase or otherwise) any stock of any class or any
other securities or interests, except (A) as required by the terms of any
------
Greenwich Employee Plan or stock option or stock purchase plan existing on the
date hereof, (B) any options, warrants, rights or other securities outstanding
as of the date hereof and disclosed pursuant to this Agreement, or (C) issuances
of any shares of Greenwich Class A Common Stock or Class B Stock for cash or in
connection with the acquisition of any securities, assets or businesses of any
Person other than UNC;
(iii) split, combine or reclassify any shares of its capital
stock or declare, set aside or pay any dividend or other distribution (whether
in cash, stock or property or any combination thereof) in respect of its capital
stock;
(iv) take any action other than in the ordinary course of
business and in a manner consistent with past practice with respect to
accounting policies or practices;
(v) hold any meeting of its stockholders except to the
extent required by the request of the stockholders entitled to call a meeting
under Greenwich's Bylaws or the DGCL;
(vi) take any action that would or is reasonably likely to
result in any of the covenants and agreements set forth in this Article VI or
any of the conditions set forth in Article VII not being satisfied as of the
Closing Date; or
(vii) agree in writing or otherwise to take any of the
foregoing actions.
(c) By UNC and Greenwich. Greenwich and UNC agree that, during
--------------------
the period from the Agreement Date to the Effective Time: (i) they will cause
representatives of their respective companies to meet, upon request, to discuss
the operations and business prospects of their companies; (ii) mutually
cooperate to enable representatives of their companies to have full and prompt
access to all financial statements, accounting work papers, documents,
agreements, and other instruments which may be reasonably requested, and (iii)
UNC will promptly advise Greenwich of the occurrence of any UNC Material Adverse
Effect with respect to the UNC Companies, and Greenwich will promptly advise UNC
of the occurrence of any Greenwich Material Adverse Effect with respect to the
Greenwich Companies.
Section 6.2. No Solicitation. UNC agrees that it shall not, after the
---------------
date hereof and before the Effective Time, directly or indirectly, through any
officer, director, employee, agent or otherwise, solicit, initiate or encourage
submission of proposals or offers from any
40
person relating to any acquisition or purchase of all or (other than in the
ordinary course of business) a substantial portion of the assets of, or any
equity interest in, any UNC Company or any business combination involving any
UNC Company or, except to the extent required by fiduciary obligations under
applicable Law as advised by counsel, participate in any negotiations regarding,
or furnish to any other person any information with respect to, or otherwise
cooperate in any way with, or assist or participate in, facilitate or encourage,
any effort or attempt by any other person to do or seek any of the foregoing.
UNC shall promptly advise Greenwich if any such proposal or offer, or any
inquiry or contact with any person with respect thereto, is made, shall promptly
inform Greenwich of all the terms and conditions thereof, and shall furnish to
Greenwich copies of any such written proposal or offer and the contents of any
communications in response thereto. UNC shall not waive any provisions of any
"standstill" agreements between UNC and any party, except to the extent that
such waiver is, as advised by counsel, required by fiduciary obligations under
applicable Law.
Section 6.3. The Registration Statement; Listiing.
------------------------------------
(a) UNC and Greenwich shall, as soon as practicable
following the execution of this Agreement, file with the SEC a draft of the
Joint Proxy Statement/Prospectus (in a form mutually agreeable to UNC and
Greenwich) as preliminary proxy materials under the Exchange Act, and shall seek
confidential treatment with respect thereto. UNC and Greenwich shall cooperate
to respond promptly to any comments made by the SEC with respect thereto.
(b) Upon resolution of any SEC comments with respect to the
draft Joint Proxy Statement/Prospectus, or at such other time as may be mutually
determined by the parties hereto, Greenwich shall file the Registration
Statement (including the then-current draft of the Joint Proxy
Statement/Prospectus) with the SEC, and shall:
(i) after consultation with UNC, respond promptly to
any comments made by the SEC with respect thereto; provided, however, that
Greenwich will not file any amendment or supplement to the Registration
Statement without first furnishing to UNC a copy thereof for its review and will
not file any such proposed amendment or supplement to which UNC reasonably and
promptly objects;
(ii) use its best efforts to cause the Registration
Statement to become effective under the Securities Act as soon as practicable,
and Greenwich and UNC shall cause the Joint Proxy Statement/Prospectus to be
mailed to their respective stockholders at the earliest practicable time after
effectiveness of the Registration Statement;
(iii) cause the registration or qualification of the
Greenwich Class B Stock to be issued upon conversion of shares of UNC Common
Stock in accordance with the Certificate of Merger under the state securities or
"Blue Sky" laws of each state of residence of a record holder of UNC Common
Stock as reflected in its stock transfer ledger;
(iv) promptly advise UNC (A) when the Registration
Statement becomes effective, (B) when, before the Effective Time, any amendment
to the Registration
41
Statement shall be filed or become effective, (C) of the issuance by the SEC of
any stop order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (D) of the
receipt by Greenwich of any notification with respect to the suspension of the
registration or qualification of Greenwich Class B Stock for sale in any
jurisdiction or the institution or threatening of any proceeding for that
purpose;
(v) use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the withdrawal
thereof; and
(vi) use its best efforts to cause the shares of Greenwich
Class B Stock to be issued upon conversion of shares of UNC Common Stock in
accordance with the Certificate of Merger to be approved for inclusion upon
notice of issuance in Nasdaq.
If, at any time when the Joint Proxy Statement/Prospectus is required to be
delivered under the Securities Act or the Exchange Act, any event occurs as a
result of which the Joint Proxy Statement/Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements contained therein, in
light of the circumstances under which they were made, not misleading, or if it
shall be necessary to amend the Registration Statement or supplement the Joint
Proxy Statement/Prospectus to comply with the Securities Act or the Exchange Act
or the respective rules thereunder, UNC and Greenwich shall cooperate to permit
Greenwich promptly to prepare and file with the SEC, subject to clause (a) of
this Section 6.3, an amendment or supplement that will correct such statement or
omission or effect such compliance.
Section 6.4. Access to Information; Confidentiality Agreement.
------------------------------------------------
(a) Between the date of this Agreement and the Effective
Time, the parties hereto will give one another and their authorized
representatives reasonable access during normal business hours to all plants,
offices, warehouses and other facilities and to all books and records of one
another, will permit one another to make such inspections as each may reasonably
request and will cause their officers and those of their Subsidiaries and
Partnerships to furnish such financial and operating data and other information
with respect to their businesses and properties as may from time to time
reasonably be requested. Subject to Section 6.7, all such information shall be
kept confidential in accordance with the Confidentiality Agreement.
(b) Notwithstanding the execution of this Agreement, the
Confidentiality Agreement shall remain in full force and effect through the
Effective Time, at which time the Confidentiality Agreement shall terminate and
be of no further force and effect. Each party hereto hereby waives the
provisions of the Confidentiality Agreement as and to the extent necessary to
permit the solicitation of votes of the stockholders of Greenwich and UNC
pursuant to the Joint Proxy Statement/Prospectus and to permit consummation of
the transactions contemplated hereby. Each party further acknowledges that the
Confidentiality Agreement shall survive any termination of this Agreement
pursuant to Section 11.1.
42
Section 6.5. Best Efforts. Subject to the terms and conditions herein
------------
provided and subject to fiduciary obligations under applicable Law as advised by
counsel, each of the parties hereto agrees to use its best efforts to take, or
cause to be taken, all action, and to do, or cause to be done, all things
necessary, proper and advisable under applicable Law, to consummate and make
effective the 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, the proper officers and directors of each
party to this Agreement shall take all such necessary action. Greenwich and UNC
shall execute any additional instruments necessary to consummate the
transactions contemplated hereby.
Section 6.6. Consents. UNC and Greenwich shall each use its best
--------
efforts to obtain consents of all third parties and governmental authorities
necessary to the consummation of the transactions contemplated by this
Agreement.
Section 6.7. Public Announcements. The parties hereto have agreed upon
--------------------
the text of a joint press release announcing, among other things, the execution
of this Agreement, which joint press release shall be disseminated promptly
following the execution hereof. UNC and Greenwich will consult with each other
before issuing any additional press release or otherwise making any additional
public statement with respect to this Agreement, the Certificate of Merger, the
Merger or the transactions contemplated herein and shall not issue any such
press release or make any such public statement before such consultation or as
to which the other party promptly and reasonably objects, except as may be
required by Law in the written opinion of such party's counsel or by obligations
pursuant to any listing agreement with any national securities exchange or
inter-dealer quotation system, in which case the party proposing to issue such
press release or make such public announcement shall use its best efforts to
consult in good faith with the other party before issuing any such press release
or making any such public announcements.
Section 6.8. Affiliates. UNC shall use its best efforts to cause each
----------
principal executive officer, each director and each other person who may be
deemed to be an "affiliate," for purposes of Rule 145 under the Securities Act,
of UNC to deliver to Greenwich at or before the Effective Time a written
agreement (substantially in the form of SCHEDULE 6.8) to the effect that such
person will not offer to sell, sell or otherwise dispose of any shares of
Greenwich Class B Stock issued in the Merger, except, in each case, pursuant to
an effective registration statement or in compliance with Rule 145, as amended
from time to time, or in a transaction which, in the opinion of legal counsel
satisfactory to Greenwich, is exempt from the registration requirements of the
Securities Act.
Section 6.9. Cashless Exercise of Stock Options. UNC shall use its
----------------------------------
best efforts between the Agreement Date and the Closing Date to obtain the
agreement of holders of UNC Stock Options to waive their right to receive
Unexercised Option Shares and, in lieu thereof, agree to accept at the Effective
Time Greenwich Class B Stock in the form of a Cashless Exercise as contemplated
by Section 2.4(C).
43
Section 6.10. Letter of UNC's Auditors. UNC shall use its best efforts
------------------------
to obtain a letter of Coopers & Xxxxxxx L.L.P. (the "UNC AUDITORS"), dated a
date within two business days before the date on which the Registration
Statements in connection with both the Proxy/Statement Prospectus and the
Greenwich Securities Offering shall become effective and addressed to UNC, in
form and substance reasonably satisfactory to Greenwich and UNC and customary in
scope and substance for agreed-upon procedures letters delivered by independent
public accountants in connection with registration statements similar to such
Registration Statements.
Section 6.11. Letter of Greenwich's Auditors. Greenwich shall use its
------------------------------
best efforts to obtain a letter of Deloitte & Touche LLP (the "GREENWICH
AUDITORS"), dated a date within two business days before the date on which the
Registration Statement shall become effective and addressed to Greenwich, in
form and substance reasonably satisfactory to UNC and Greenwich and customary in
scope and substance for agreed-upon procedures letters delivered by independent
public accountants in connection with registration statements similar to the
Registration Statement.
Section 6.12. Opinions of Financial Advisors. Each of UNC and
------------------------------
Greenwich shall use its best efforts to cause X.X. Xxxxxx and Salomon,
respectively, to provide its opinion, as of a date no earlier than three
business days before the date that the Joint Proxy Statement/Prospectus is
mailed to stockholders of UNC and Greenwich, to the effect that the Exchange
Ratio and the forms of Merger Consideration contemplated by this Agreement and
in the Certificate of Merger is fair to the stockholders of UNC and Greenwich,
respectively, from a financial point of view, and shall include such updated
opinions in the Joint Proxy Statement/Prospectus.
Section 6.13. Registration Rights. Greenwich hereby agrees to the
-------------------
following registration rights, in the event and to the extent that the Selling
Stockholders (as herein defined) shall during the periods described below shall
be unable to avail themselves of the right to effect distributions of Greenwich
Class B Stock pursuant to Rule 144 under the Securities Act or another
applicable exemption from the registration requirements of the Securities Act:
(a) Upon the receipt of a written notice within a period of two
(2) years after the Closing Date from any of those Persons identified on
SCHEDULE 6.13 or any trustee holding shares for the benefit of such Person (the
"UNC GROUP") requesting Greenwich in writing to register under the Securities
Act shares of Greenwich Class B Stock held by such persons that represent at
least 25% of the shares of Greenwich Class B Stock received by members of the
UNC Group in the Merger, Greenwich shall promptly notify all other members of
the UNC Group in writing of the receipt of such request and any member of the
UNC Group may elect (by written notice sent to Greenwich within ten business
days from the date of such member's receipt of the aforementioned notice from
Greenwich) to have any or all of his shares of Greenwich Class B Stock included
in such registration pursuant to this Section 6.13 (such members of the UNC
Group, together with any other stockholders exercising registration rights
pursuant to Section 6.13(c) hereof, being hereinafter referred to as "SELLING
STOCKHOLDERS");
44
provided, however, that the aggregate number of shares included in such
registration shall not exceed the aggregate number of shares received by the
members of the UNC Group in the Merger, less the aggregate number of shares as
to which members of the UNC Group have previously exercised registration rights
pursuant to this Section.
(b) As expeditiously as possible, Greenwich will use its
reasonable best efforts to cause the offering of all shares designated in such
request(s) (the "SHARES") to be registered under the Securities Act so as to
permit the proposed sale; provided that (i) the Shares with respect to which
such public offering has been requested are reasonably anticipated to have an
aggregate price to the public in excess of $5 million, (ii) Greenwich and the
Selling Stockholders are entitled to register the Shares on Form S-3 (or a
successor form) or would be eligible to use such form but for the failure by
Greenwich to timely file all reports required to be filed by it under the
Exchange Act, and (iii) Greenwich has not commenced or completed within the
previous six months an underwritten public offering.
(c) For a period of two (2) years after the Closing Date, if
Greenwich shall at any time propose to file on its own behalf and/or the behalf
of any other stockholders a registration statement under the Securities Act for
an offering of Greenwich Class B Stock solely for cash on a form that would also
permit registration of shares of Greenwich Class B Stock held by members of the
UNC Group, Greenwich shall give notice of such proposed registration to each
member of the UNC Group as promptly as possible, but in any event at least
thirty (30) days before the initial filing with the SEC of such registration
statement, which notice shall set forth the intended method of disposition of
the shares proposed to be registered by Greenwich. The notice shall offer to
include in such filing the aggregate number of shares of Greenwich Class B Stock
as the Selling Stockholders may request (not to exceed the aggregate number of
shares received by members of the UNC Group in the Merger, less the number of
shares as to which members of the UNC Group have previously exercised
registration rights pursuant to this Section), subject to this Section 6.13(c).
Each member of the UNC Group desiring to have Greenwich Class B Stock registered
under this Section 6.13(c) shall advise Greenwich in writing within ten (10)
business days after the date of notice of such offer from Greenwich, setting
forth the amount of such Greenwich Class B Stock for which registration is
requested. Greenwich shall (except to the extent otherwise provided in this
Section 6.13(c)) thereupon include in such filing the number of shares of
Greenwich Class B Stock for which registration is so requested and shall use its
best efforts to effect registration under the Securities Act of such shares.
Notwithstanding the foregoing: (i) Greenwich shall not be required to give
notice or to include shares in any such registration if the proposed
registration is primarily (A) a registration of a dividend reinvestment, stock
option, employee benefit or compensation plan or of securities issued or
issuable pursuant to any such plan, or (B) a registration of securities proposed
to be issued in exchange for securities or assets of, or in connection with a
merger or consolidation with, another entity; (ii) if Greenwich is advised in
writing by its underwriters that the inclusion of all or any portion of such
shares would in their reasonable opinion jeopardize the success of the proposed
offering, Greenwich may exclude all or such portion of such shares from
registration; (iii) the offering of such shares by the Selling Stockholders
shall be on the same terms as the offering by Greenwich; (iv) in the event other
parties have similar registration rights at the time of the offering, the number
of shares to be registered may be limited by Greenwich
45
pursuant to clause (ii) of this Section 6.13(c) on a pro rata basis according to
--- ----
the total amount of shares owned by such parties or on such other basis as may
be agreed upon by such parties (provided that no limitation shall apply to
shares offered by Greenwich for its own account); (v) Greenwich may, without the
consent of the Selling Stockholders, withdraw such registration statement and
abandon the proposed offering in which such persons had requested to
participate; and (vi) Greenwich shall be under no obligation to any Selling
Stockholder pursuant to this Section 6.13(c) unless such persons accept the
terms of underwriting agreed upon by Greenwich and its underwriters.
(d) If Greenwich is required by the provisions of this Section
6.13 to use its best efforts to effect the registration of any of its securities
under the Securities Act, Greenwich shall, as expeditiously as possible:
(i) prepare and file with the SEC a registration statement
with respect to the Shares and use its best efforts to cause such registration
statement to become and remain effective for a period of time (not to exceed 180
days) required for the disposition of the Shares by the Selling Stockholders;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the sale or
other disposition of all Shares covered by such registration statement until the
earlier of such time as all of such Shares have been disposed of in a public
offering or the expiration of 180 days;
(iii) furnish to the Selling Stockholders such number of
copies of a summary prospectus or other prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents, as such Selling Stockholders may reasonably request;
(iv) use its best efforts to register or qualify the
securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions within the United States and Puerto Rico as
each Selling Stockholder shall request (provided, however, that Greenwich shall
not be obligated to qualify as a foreign corporation to do business under the
laws of any jurisdiction in which it is not then qualified or to file any
general consent to service of process), and do such other reasonable acts and
things as may be required of it to enable such Selling Stockholder to consummate
the disposition in such jurisdiction of the Shares covered by such registration
statement;
(v) furnish, at the request of any Selling Stockholder:
(1) an opinion, dated the date of the closing, of counsel representing Greenwich
for the purposes of such registration, addressed to the underwriters and the
Selling Stockholders, or if the Shares are not being sold through underwriters,
then to the Selling Stockholders making such request, in each case customary for
the type of offering and concluding, without limitation, that the
46
registration statement, the related prospectus, and each amendment or supplement
thereto, comply as to form in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the SEC thereunder;
and (2) a letter, dated the date of the closing, from the independent certified
public accountants of Greenwich, addressed to the underwriters, or if such
Shares are not being sold through underwriters, then to Greenwich and, if
feasible, to the Selling Stockholders making such request, substantially to the
effect that they are independent certified public accountants within the meaning
of the Securities Act and that, in the opinion of such accountants, the
financial statements and other financial data of Greenwich included in the
registration statement or the prospectus, or any amendment or supplement
thereto, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act. Such opinion of counsel shall
additionally cover such other legal matters with respect to the registration as
the underwriters and the Selling Stockholders may reasonably request. Such
letter from the independent certified public accountants shall additionally
cover such other financial matters (including information as to the period
ending not more than five (5) business days before the date of such letter) with
respect to the registration in respect of which such letter is being given as
the underwriters and the Selling Stockholders may reasonably request; and
(vi) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
stockholders, as soon as reasonably practicable, but not later than 18 months
after the effective date of the registration statement, an earning statement
covering the period of at least 12 months beginning with the first full month
after the effective date of such registration statement, which earning statement
shall satisfy the provisions of Section 11(a) of the Securities Act.
(e) The obligations of Greenwich under this Section 6.13 are
subject to the following terms and limitations:
(i) Greenwich shall be entitled to postpone for up to three
months in any 12-month period the filing of any registration statement otherwise
required to be prepared and filed by it pursuant to Section 6.13(a) if, at the
time it receives a request for such registration, its Board of Directors
determines, in its reasonable good faith judgment, that such registration and
sale would materially interfere with any financing, acquisition, corporate
reorganization or other material transaction involving Greenwich then under
consideration or would otherwise be detrimental to Greenwich and its
stockholders; provided, however, that the two-year period contemplated by
Section 6.13(a) shall be tolled at any time when Greenwich has postponed a
registration pursuant to this paragraph or is excused from registering Shares
pursuant to Section 6.13(b)(iii) hereof (unless, in the case of such Section
6.13(b)(iii), Greenwich has notified the members of the UNC Group in writing
that Greenwich will waive the application of such Section with respect to the
subject underwritten public offering);
(ii) in the event of a request for registration under
Section 6.13(a), Greenwich shall use its best efforts (without being legally
bound thereby) to cause sales
47
of shares on behalf of Selling Stockholders to be made through a nationally
recognized investment banking firm selected by Greenwich which shall act as
managing underwriter;
(iii) The Selling Stockholders shall reimburse Greenwich for
all reasonable fees and expenses associated with any registration and offering
of shares for the benefit of members of the UNC Group pursuant to Section
6.13(a), including, without limitation, all SEC and state "Blue Sky" filing
fees, all fees and expenses of Greenwich's counsel and accountants, all printing
and mailing fees, and the fees and expenses of counsel for the underwriters, if
applicable; and shall pay all underwriting fees or brokerage commissions, and
fees and expenses of any counsel or accountants retained by any member of the
UNC Group in connection with such registration and offering shall be the sole
and exclusive liability and obligation of the UNC Group (all of the foregoing,
whether paid by Greenwich or the UNC Group, are collectively referred to as,
"REGISTRATION EXPENSES"). In the event of a registration under Section 6.13(a),
Greenwich shall not be obligated to pay the costs related to the preparation of
any audited financial statements included in any registration statement required
to be prepared and filed by it pursuant to Section 6.13(a) as of any date other
than the end of its fiscal year or for any audited financial statements for any
period of less than 12 months. For all other registrations and offerings of
shares pursuant to this Section 6.13, the selling UNC Group stockholders shall
pay, on a pro rata basis, all Registration Expenses and other costs and expenses
--- ----
associated with such registrations and offerings;
(iv) Greenwich shall not be obligated to provide more than
a total of two registrations pursuant to Section 6.13(a) and Section 6.13(c);
provided that in the event any shares are excluded from registration pursuant to
Section 6.13(c) or in the event such registration is withdrawn or abandoned by
Greenwich, the UNC Group stockholders shall have additional registration rights
pursuant to such subsection until such time as the shares originally proposed to
be registered thereunder have been registered pursuant to this Section;
(v) Greenwich, the Selling Stockholders and any
underwriter of an offering pursuant to any registration statement provided for
in this Section shall have entered into an underwriting agreement or other
agreement containing provisions with respect to the indemnification of the
aforementioned parties in connection with the preparation and use of such
registration statement in form and substance reasonably satisfactory to
Greenwich and any such underwriter (except that no Selling Stockholder shall be
required to undertake any indemnification obligation with respect to information
contained in any registration statement not furnished by such Selling
Stockholder); and
(vi) it shall be a condition precedent to the obligations
of Greenwich under this Section 6.13 that the Selling Stockholders shall furnish
to Greenwich such information regarding the Selling Stockholders, the shares
proposed to be sold and the intended method of disposition of such securities as
Greenwich shall reasonably request.
(f) The registration rights provided herein may not be assigned,
by operation of law or otherwise, to any other person; provided, however, that
such registration
48
rights may be assigned to the transferee of any shares of Greenwich Class B
Stock received by a member of the UNC Group in the Merger (i) if such transfer
occurs by will or pursuant to the laws of descent and distribution, or (ii) if
the transferee is a member of the immediate family of any member of the UNC
Group or is a trust for the benefit of any such persons.
Section 6.14. Indemnification; Insurance.
--------------------------
(a) Except as may be limited by applicable Law, from the
Effective Time and for a period of three (3) years thereafter, Greenwich shall
cause UNC to maintain all rights of indemnification existing in favor of the
directors and officers of UNC on terms no less favorable than those provided in
the certificate of incorporation and bylaws of UNC on the date of this Agreement
with respect to matters occurring before the Effective Time.
(b) Greenwich shall cause to be maintained in effect for
three (3) years from the Effective Time the current policies for directors' and
officers' liability insurance maintained by UNC (provided that Greenwich may
substitute therefor policies of at least the same coverage containing terms and
conditions that are not materially less advantageous) with respect to matters
occurring before the Effective Time, to the extent such insurance is available
to Greenwich in the market.
Section 6.15 Board of Directors Approval Each of UNC and Greenwich
---------------------------
agrees that the UNC Board of Directors and the Greenwich Board of Directors,
respectively, will recommend that its stockholders adopt this Agreement and
approve the Merger unless advised in writing by the respective counsel that such
recommendation will constitute a violation of its fiduciary duties to
stockholders.
Section 6.16 UNC Stock Options UNC agrees not to grant any further
-----------------
Stock Options following the Agreement Date through and including the Effective
Time of the Merger.
Section 6.17 Best Efforts, etc. Subject to the terms and conditions
------------------
herein provided, each of the parties hereto agrees to use its best efforts to
take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement,
including obtaining any consents, authorizations, exemptions and approvals from,
and making all filings with, any insurance department, governmental, regulatory
or public body or authority which are necessary or, in the judgment of the
parties, desirable in connection with the transactions contemplated by this
Agreement.
Section 6.18 HSR Act. UNC and Greenwich shall, as soon as
-------
practicable, file Notification and Report Forms under the HSR Act with the
Federal Trade Commission (the "FTC") and the Antitrust Division of the
Department of Justice (the "ANTITRUST DIVISION") and shall use best efforts to
respond as promptly as practicable to all inquiries received from the FTC or the
Antitrust Division for additional information or documentation.
49
Section 6.19 Interim Financials. Prior to the Effective Time, UNC
------------------
will deliver to Greenwich, and Greenwich will deliver to UNC, as soon as
available but in no event later than 30 days after the end of any fiscal
quarter, a consolidated statement of financial position of such party and its
Subsidiaries as at the last day of such fiscal quarter and the consolidated
statements of income and changes in financial position of such party and its
Subsidiaries for the fiscal period then ended (which statements may be
unaudited) prepared in conformity with the requirements of Form 10-Q under the
Exchange Act.
Section 6.20 Material Events. At all times prior to the Effective
---------------
Time, each party shall promptly notify the others in writing of the occurrence
of any event which will or may result in the failure to satisfy any of the
conditions specified in Articles VIII or IX hereof.
Section 6.21 Greenwich Financings.
--------------------
(a) Proposed Financings. In order to assist Greenwich in
-------------------
funding the estimated Cash Merger Consideration and transaction expenses
contemplated by this Agreement, Salomon or its Affiliates has advised Greenwich
that it may provide Greenwich with (i) a commitment from Salomon (the "SENIOR
DEBT FINANCING COMMITMENT") to provide the Greenwich Companies and the UNC
Companies with a $110 million senior secured credit facility (the "SENIOR
SECURED CREDIT FACILITY"); (ii) a proposal (the "DEBT PROPOSAL") from Salomon to
underwrite or act as placement agent or managing underwriter in connection with
an offering of approximately $200 million of senior notes; and (iii) a proposal
(the "EQUITY PROPOSAL") from Salomon to underwrite or act as placement agent or
managing underwriter in connection with an offering of approximately $175
million of shares of Greenwich Class B Stock. The simultaneous offerings of
Greenwich Class B Stock and/or Greenwich notes referred to in clauses (ii) are
(iii) are collectively referred to herein as the "GREENWICH SECURITIES
OFFERING," and the Senior Credit Facility and the Securities Offering are
collectively referred to herein as the "GREENWICH FINANCINGS."
(b) Delivery of Commitment and Proposals. Greenwich shall
------------------------------------
provide UNC with true copies of the Salomon Senior Debt Financing Commitment,
the Equity Proposal and the Debt Proposal promptly upon receipt of same.
(c) Greenwich Securities Offering. Greenwich may, in
-----------------------------
consultation with Salomon, proceed with the Greenwich Securities Offering either
as a public offering pursuant to a Registration Statement or as a private
offering, exempt from the registration requirements of the Securities Act;
provided, that such Greenwich Securities Offering shall not, by its terms and
after giving effect thereto, cause a default or event of default to occur under
the terms of any indenture or loan agreement currently binding upon the
Greenwich Companies and/or the UNC Companies.
In order to facilitate consummation of such Greenwich
Securities Offering, the parties hereto do hereby agree as follows:
50
(i) Greenwich shall, subject to its receipt from UNC of
the Audited 1996 UNC Financial Statements and pro forma financial
statements giving effect to the transactions contemplated hereby
(to be prepared by Greenwich and reviewed by the Greenwich
Auditors) file with the SEC, simultaneously with the initial
filing of the Joint Proxy Statement/Prospectus, or as soon
thereafter as is practicable, a Registration Statement in respect
of the Greenwich Securities Offering, and shall, in good faith,
use its best efforts to cause such Registration Statement to be
declared effective by the SEC as soon as practicable.
Alternatively, if the Greenwich Class B Stock or other securities
are to be offered in a transaction exempt from the registration
requirements of the Securities Act, Greenwich shall, subject to
its receipt of the foregoing UNC financial statements, promptly
prepare the necessary information memorandum or offering circular
traditionally used in such private placement exempt transactions.
(ii) UNC shall cause its officers and directors (and shall
use its best efforts to cause its legal and financial
representatives) to assist Greenwich and its officers, directors
and representatives, to file and cause such Registration
Statement to be declared effective by the SEC as soon as
practicable, or alternatively, to complete such information
memorandum or offering circular.
(iii) In furtherance of its covenants set forth in clause
(ii) above, UNC shall actively participate in the drafting of all
relevant sections of the Registration Statement or information
memorandum, and all amendments thereto, relating to the UNC
Businesses, financial condition, management and all related
disclosures concerning the UNC Companies, as shall be required
pursuant to all rules and regulations, including, without
limitation, Regulation C and Regulation S-X, as promulgated under
the Securities Act, or (to the extent applicable) as may be
requested by the SEC in any letters of comment received by
Greenwich (true copies of which shall promptly be furnished by
Greenwich to UNC).
(iv) Each of Greenwich and Merger Subsidiary, on one hand,
and UNC, on the other hand, shall (A) execute and deliver to each
other and to the representatives of the several underwriters or
placement agent, such cross indemnification agreements as may be
reasonably required and as are traditional in securities
offerings in connection with disclosures contained in such
Registration Statement or information memorandum, as amended,
relating to the respective parties hereto; (B) use their best
efforts to cause UNC Auditors and Greenwich Auditors to deliver
such "agreed-upon procedures" and related letters as the
representatives of the several underwriters may require in the
Underwriting Agreement or securities
51
purchase agreement, concerning financial and other numerical
disclosures contained in the Registration Statement and all
exhibits and schedules thereto; and (C) furnish all documents and
other agreements which counsel for Greenwich and counsel for UNC
may reasonably require or request.
(v) Greenwich shall use its best efforts to consummate the
Greenwich Securities Offering relating to the Greenwich Class B
Stock or other securities, subject at all times to prevailing
market conditions.
Section 6.22 Rights Agreement. UNC Board will take all necessary
----------------
action (including, but not limited to redemption) so that, as of the Effective
Time, the Rights Agreement dated as of September 25, 1987, between UNC and
Manufacturers Hanover Trust Company, as amended on May 16, 1996, in respect of
the potential issuance of Series A Preferred Stock (the "RIGHTS AGREEMENT") will
be terminated and neither Greenwich nor Merger Subsidiary, nor any of their
respective affiliates will be deemed to be an "Acquiring Person" or an "Adverse
Person" (as such terms are defined in the Rights Agreement) for purposes
thereof, and (iii) a "Distribution Date" (as such term is defined in the Rights
Agreement) shall not occur by virtue of the Merger. UNC will take any and all
action reasonably requested by Greenwich to ensure and confirm that UNC,
Greenwich, Merger Subsidiary and their respective affiliates will not have any
obligations in connection with the Rights or the Rights Agreement in connection
with the Merger.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF ALL PARTIES
The respective obligation of each party to consummate the Merger is
subject to the satisfaction at or before the Effective Time of the following
conditions precedent:
Section 7.1 Greenwich Stockholder Approvals. The transactions
-------------------------------
contemplated in this Agreement shall have been approved by the affirmative vote
of the stockholders of Greenwich by the requisite vote in accordance with
Greenwich's Nasdaq listing agreement;
Section 7.2 UNC Stockholder Approvals. The transactions
-------------------------
contemplated in this Agreement shall have been approved, and the Certificate of
Merger shall have been adopted, by the affirmative vote of the holders of UNC
Common Stock and UNC Series B Preferred Stock by the requisite vote in
accordance with the DGCL;
Section 7.3 Absence of Order. No order, decree or injunction shall
----------------
have been enacted, entered, promulgated or enforced by any United States court
of competent jurisdiction or any United States governmental authority which
prohibits the consummation of the Merger; provided, however, that the parties
hereto shall use their best efforts to have any such order, decree or injunction
vacated or reversed;
Section 7.4 Registration Statement. The Registration Statement in
----------------------
respect of both the Joint Proxy Statement/Prospectus and the Greenwich
----
Securities Offering shall
52
have become effective in accordance with the provisions of the Securities Act,
and no stop order suspending such effectiveness shall have been issued and
remain in effect;
Section 7.5 Certain Approvals. Any waiting period applicable to the
-----------------
Merger under the HSR Act shall have terminated or expired, all applicable
requirements of the Exchange Act shall have been satisfied and any applicable
filings under state securities, "Blue Sky" or takeover laws shall have been
made;
Section 7.6 Tax Opinions. The parties hereto shall have received
------------
the opinion of Xxxxxxxxx Xxxxxxx Xxxxxxx Xxxxxx Xxxxx & Xxxxxxx and the opinion
of Neuberger, Quinn, Gielen, Rubin & Gibber, P.A., based on customary
assumptions and on representations set forth in certificates of officers of
Greenwich and UNC (each dated the date of the Effective Time), to the effect
that, for United States federal income tax purposes, (i) the Merger will
constitute a "reorganization" under Section 368(a) of the Code; (ii) no gain or
loss will be recognized by Greenwich, Merger Subsidiary or UNC upon consummation
of the Merger; (iii) gain or loss will be recognized by stockholders of UNC upon
the exchange of shares of UNC Common Stock for shares of Greenwich Class B Stock
(including any fractional share interest) in the Merger only to the extent of
the Cash Consideration per Share; (iv) the aggregate basis of shares of
Greenwich Class B Stock (including any fractional share interest) received by a
UNC stockholder in the Merger will be the same as the aggregate basis of the
shares of UNC Common Stock exchanged therefor, increased by the amount of gain
recognized by such UNC stockholder; (v) the holding period for shares of
Greenwich Class B Stock (including any fractional share interest) received by a
UNC stockholder in the Merger will include the holding period for the shares of
UNC Common Stock exchanged thereof, if such shares of UNC Common Stock are held
as a capital asset at the Effective Time; and (vi) cash received in lieu of a
fractional share of Greenwich Class B Stock will be treated as having been
received as full payment in exchange for such fractional share;
Section 7.7 Nasdaq Inclusion. The shares of Greenwich Class B Stock
----------------
required to be issued in connection with the Merger and the Greenwich Securities
Offering shall have been approved for inclusion in Nasdaq subject to official
notice of issuance; and
Section 7.8 Other Consents and Approvals. All other necessary and
----------------------------
material governmental, regulatory, stockholder and third party lender, customer
or other clearances, consents, licenses or approvals shall have been received.
ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS OF GREENWICH
AND MERGER SUBSIDIARY
Each and every obligation of Greenwich and Merger Subsidiary under this
Agreement shall be subject to the satisfaction, on or prior to the Closing Date,
of each of the following conditions, each of which may be waived by Greenwich
and Merger Subsidiary as provided herein except as otherwise provided by law.
53
Section 8.1 Representations and Warranties True The representations
-----------------------------------
and warranties of UNC contained in this Agreement shall be true and correct in
all material respects as of the Agreement Date and shall be deemed to have been
made again at and as of the Closing Date and shall then be true and correct in
all material respects, and at the Closing, UNC shall have delivered to Greenwich
a certificate to that effect signed by the Chief Executive Officer and the
principal financial officer of UNC.
Section 8.2 UNC's Performance Each of the obligations of UNC to be
-----------------
performed by it on or before the Closing Date pursuant to the terms of this
Agreement shall have been duly performed in all material respects by the Closing
Date, including all covenents and agreements of UNC set forth in Article VI and
Article VII hereof, and at the Closing, UNC shall have delivered to Greenwich a
certificate to that effect signed by the Chief Executive Officer and the
principal financial officer of UNC.
Section 8.3 Opinion of UNC's Counsel Greenwich shall have been
------------------------
furnished with opinions of Neuberger, Quinn, Gielen, Rubin & Gibber, P.A.,
counsel to UNC, dated the Closing Date, in substantially the form attached
hereto as Exhibit B. In rendering such opinions such counsel may rely, to the
extent such counsel deems such reliance necessary or appropriate, upon opinions
of other counsel, in form and substance satisfactory to Greenwich (or may
deliver such opinions of other counsel each dated the Closing Date and addressed
to Greenwich), and, as to matters of fact, upon certificates of government
officials and of any officials of UNC or any UNC Subsidiary, provided that the
extent of such reliance is set forth in such opinion and such opinion states
that it is reasonable for Greenwich to rely thereon.
Section 8.4. Resignation. As at the Effective Time, Xxx X. Xxxxxxx
-----------
shall tender his resignation as Chairman and Chief Executive Officer of UNC.
Such resignation, however, shall not in any way limit or affect Xxx X. Xxxxxxx'x
right to receive his allocable payments contemplated by Section 9.7 and Section
2.4(f).
Section 8.5 Certificates UNC shall have furnished Greenwich with
------------
such certificates of its officers and others to evidence compliance with the
conditions set forth in this Article VIII as may be reasonably requested by
Greenwich.
Section 8.6 Fairness Opinion. Greenwich shall have received from
----------------
Salomon Brothers, an opinion that the Merger Consideration to be paid by
Greenwich pursuant to this Agreement for the shares of UNC Common Stock and UNC
Series B Preferred Stock is fair to the stockholders of Greenwich from a
financial point of view and such opinion shall not have been withdrawn or
modified.
Section 8.7 Dissenting Shares. In the event Dissenting Shares shall
-----------------
be entitled to exercise rights contemplated by Section 2.4(e) hereof, the
holders of not more than two (2%) percent of the issued and outstanding shares
of UNC Common Stock shall have exercised their rights contemplated by Section
2.4(e) and shall have become Dissenting Shares.
Section 8.8 Completion of Greenwich Financings. The Greenwich
----------------------------------
Financings contemplated by Section 6.21 of this Agreement shall have been
consummated on or prior to the Effective Time.
54
Section 8.9 SERP Termination. Subject to the satisfaction of
----------------
Section 9.7 below, on or before the Closing Date UNC shall have terminated,
effective as of the Agreement Date, any further obligations it has or may have
had in connection with any supplemental executive retirement plans, other than
obligations that have vested as of the Agreement Date.
Section 8.10 Standby Funding Commitment. On or before the filing of
--------------------------
the Registration Statement, Greenwich shall have received: (a) from Salomon or
another recognized investment banking firm or financial institution, a standby
funding commitment in form and content customary in transactions of such type,
to provide the Greenwich Companies and the UNC Companies with a sufficient
amount of debt financing which shall enable the Greenwich Companies and UNC
Companies on or after the Effective Time to fund any mandatory redemption
payments required to be made under the UNC Notes, resulting from the "Change in
Control" provisions of the Indentures under which such UNC Notes were issued;
and/or (b) written waivers of such "Change of Control" provisions from any or
all holders of such UNC Notes.
ARTICLE IX
CONDITIONS TO THE OBLIGATIONS OF UNC
Each and every obligation of UNC under this Agreement shall be subject
to the satisfaction, as at or before the Effective Time, of each of the
following conditions, each of which may be waived by UNC as provided herein
except as otherwise provided by law:
Section 9.1 Representations and Warranties True The representations
-----------------------------------
and warranties of Greenwich and Merger Subsidiary contained in this Agreement
shall be true and correct in all material respects as of the Agreement Date and
shall be deemed to have been made again at and as of the Closing Date and shall
then be true and correct in all material respects, and at the Closing, Greenwich
and Merger Subsidiary shall have each delivered to UNC a certificate to that
effect signed by the Chief Executive Officer and the principal financial officer
of Greenwich and of Merger Subsidiary.
Section 9.2 Greenwich's and the Merger Subsidiary's Performance
---------------------------------------------------
Each of the obligations of Greenwich and Merger Subsidiary to be performed by
them on or before the Closing Date pursuant to the terms hereof shall have been
duly performed and complied with in all material respects by the Closing Date
and at the Closing, Greenwich and Merger Subsidiary shall have each delivered to
UNC a certificate to that effect signed by the Chief Executive Officer and
principal financial officer of Greenwich and Merger Subsidiary.
Section 9.3 Opinion of Greenwich's and the Merger Subsidiary's
--------------------------------------------------
Counsel UNC shall have been furnished with an opinion of Greenberg, Traurig,
-------
Hoffman, Rosen, Xxxxxx & Xxxxxxx, PA, counsel to Greenwich, dated the Closing
Date, in substantially the form attached hereto as Exhibit C. In rendering such
---------
opinions such counsel may rely, to the extent such counsel deems such reliance
necessary or appropriate, upon opinions of other counsel, in form and substance
satisfactory to UNC (or may deliver such opinions of other counsel each dated
the Closing Date and addressed to UNC), and, as to matters of fact, upon
certificates of
55
government officials and of any official or officials of Greenwich, Merger
Subsidiary or any Greenwich subsidiary, provided that the extent of such
reliance is set forth in such opinions and such opinions state that it is
reasonable for UNC to rely thereon.
Section 9.4 Certificates Greenwich and Merger Subsidiary shall have
------------
furnished UNC with such certificates of their respective officers and others to
evidence compliance with the conditions set forth in this Article X as may be
reasonably requested by UNC.
Section 9.5 Fairness Opinion. UNC shall have received from J.P.
----------------
Xxxxxx an opinion that the Merger Consideration to be paid by Greenwich pursuant
to this Agreement for the shares of UNC Common Stock and UNC Series B Preferred
Stock is fair to the stockholders of UNC from a financial point of view and such
opinion shall not have been withdrawn or modified.
Section 9.6 Payment of Merger Consideration. On or before the
-------------------------------
Effective Time, Greenwich shall have paid, or shall have provided the Exchange
Agent with the required number of shares of Greenwich Class B Stock and amount
of Cash Merger Consideration necessary to pay the full Merger Consideration
contemplated by this Agreement.
Section 9.7 Funding of SERP/CIC Payments. On or before the
----------------------------
Effective Time, Greenwich shall have paid the amounts necessary to fund
supplemental executive retirement plan and change in control payment obligations
of the UNC Companies as at the Closing Date.
Section 9.8 Standby Funding Commitment. On or before the filing of
--------------------------
the Registration Statement, Greenwich shall have provided UNC with: (a) a
standby funding commitment from Salomon or another recognized investment banking
firm or financial institution, in form and content customary in transactions of
such type, to provide the Greenwich Companies and the UNC Companies with a
sufficient amount of debt financing which shall enable the Greenwich Companies
and UNC Companies on or after the Effective Time to fund any mandatory
redemption payments required to be made under the UNC Notes, resulting from the
"Change in Control" provisions of the Indentures under which such UNC Notes were
issued; and/or (b) written waivers of such "Change in Control" provisions from
any or all holders of such UNC Notes.
ARTICLE X
CLOSING
56
Section 10.1 Time and Place Subject to the provisions of Articles
--------------
VI, VII, VIII and IX hereof, the closing of the transactions contemplated hereby
shall take place as soon as practicable after the satisfaction or waiver of the
conditions to Closing contained in Articles VIII and IX and simultaneous with
the effectiveness of the Registration Statement relating to the Greenwich Equity
Offering at the offices of Greenberg, Traurig, Hoffman, Rosen, Xxxxxx & Xxxxxxx,
PA, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 1:00 P.M., local time, or at
such other place, at such other time, or on such other date as the Greenwich,
Merger Subsidiary and UNC may mutually agree upon for the Closing to take place.
Section 10.2 Deliveries at the Closing At the Closing:
-------------------------
(a) There shall be delivered to Greenwich, Merger
Subsidiary and UNC the opinions, certificates and other documents and
instruments provided to be delivered under Articles VII and IX hereof.
(b) Merger Subsidiary and UNC shall cause the Certificate
of Merger to be filed in accordance with the provisions of the DGCL and shall
take any and all other lawful actions and do any and all other lawful things
necessary to effect the Merger and to enable the Merger to become effective.
ARTICLE XI
TERMINATION; AMENDMENT; WAIVER
Section 11.1. Termination. Notwithstanding adoption of this Agreement
-----------
by stockholders of UNC and Greenwich, this Agreement may be terminated, and the
Merger abandoned, at any time prior to the Effective Time of the Merger:
(a) by the mutual consent of the Boards of Directors of
Greenwich, Merger Subsidiary and UNC; or
(b) by either Greenwich or UNC if the Merger shall not have
been consummated on or before the earlier of (i) three Business Days after the
-------
date,Greenwich's Registration Statement in respect of the proposed
Greenwich Securities Offering shall have been declared effective by the SEC, or
(ii) June 30, 1997 (the "OUTSIDE EFFECTIVE TIME"); provided, that the right to
--------
terminate this Agreement under this Section 11.1(b) shall not be available to
any party whose act or omission (which act or omission was solely within such
party's control), shall have resulted in the Outside Effective Time's having
passed without the Merger having been consummated; or
(c) by either Greenwich or UNC, if any court of competent
jurisdiction in the United States or other United States governmental body shall
have issued an order, judgment or decree (other than a temporary restraining
order) restraining, enjoining or otherwise prohibiting the Merger and such
order, judgment or decree shall have become final and nonappealable; or
57
(d) by Greenwich, if any of the following events have
occurred:
(i) the Merger contemplated by this Agreement is
voted upon by holders of UNC Common Stock at the UNC Stockholders' Meeting, and
the votes are not sufficient to satisfy the condition set forth in Section 7.2;
or
(ii) the UNC Board does not recommend in the Joint
Proxy Statement/Prospectus that UNC's stockholders adopt and approve the Merger,
this Agreement and the transactions contemplated hereby and thereby for any
reason other than the occurrence and continuation of a Greenwich Material
Adverse Effect; or
(iii) after recommending in the Joint Proxy
Statement/Prospectus that UNC's stockholders adopt and approve the Merger, this
Agreement and the transactions contemplated hereby, the UNC Board shall have
withdrawn, modified or amended such recommendation in any respect materially
adverse to Greenwich for any reason other than the occurrence and continuation
of a Greenwich Material Adverse Effect; or
(iv) if there shall occur a breach by UNC of any
representation or warranty set forth in this Agreement, which breach has a UNC
Material Adverse Effect and is within the actual knowledge of any Person listed
in SCHEDULE 1.46, or UNC shall breach any covenant or agreement contained in
this Agreement which makes consummation of the transaction contemplated hereby
either impossible or impracticable for Greenwich.
(e) by UNC if, before the Effective Time, a Person or group
makes a bona fide proposal with respect to the acquisition of all or
---- ----
substantially all of UNC's outstanding capital stock or assets, that the Board
of Directors of UNC believes in good faith after consultation with its financial
advisors, is more favorable, from a financial point of view, to the stockholders
of UNC than the proposal set forth in this Agreement (a "SUPERIOR PROPOSAL");
provided that Greenwich does not (in its sole option) elect to make, within ten
--------
Business Days after receiving notice of such Superior Proposal, an offer that
the Board of Directors of UNC believes, in good faith after consultation with
its financial advisors, is at least as favorable, from a financial point of
view, to the UNC stockholders as such Superior Proposal; or
(f) by Greenwich, in the event that any of the Greenwich
Financings contemplated by Section 6.21 of this Agreement, including the
proposed Greenwich Securities Offering, shall not be consummated by reason of
the occurrence of any of the following:
---
(i) adverse conditions affecting the securities
markets generally,
(ii) a Greenwich Material Adverse Effect,
(iii) a UNC Material Adverse Effect,
(iv) the closing price of a share of Greenwich Class
B Stock as reported on Nasdaq on the trading day immediately preceding a
proposed effective date
58
of the Registration Statement for the contemplated Greenwich Securities
Offering or on the trading day immediately preceding any contemplated
Closing Date shall be $18.46 or less, or
(v) Greenwich shall receive advice from Greenwich's
managing underwriters or bankers that any of the Greenwich Financings
contemplated by Section 6.21 may not (for any of the reasons specified
above, or otherwise) be accomplished on substantially the terms and
conditions described in the Senior Debt Financing Commitment, Debt Proposal
and Equity Proposal which shall have been received by Greenwich pursuant
Section 6.21, or such other terms as shall be acceptable to Greenwich and
that would not have a Material Adverse Effect on the consolidated Greenwich
Businesses and UNC Businesses, after giving pro forma effect to the Merger
contemplated hereby; or
(g) by UNC, if there shall have occurred and shall be continuing
a Greenwich Material Adverse Effect, or by Greenwich, if there shall have
occurred and shall be continuing a UNC Material Adverse Effect, respectively; or
(h) by UNC, if:
(i) it shall either be acknowledged in writing by Xxxxxx
X. Xxxxxx, Xx., Xxxxxx X. Xxxxxx, Xx. or Xxxxxx X. Xxxxxxx, or be proven in
a court of competent jurisdiction from which no appeal can or has been
taken, that (x) as at the Agreement Date, any of such persons had actual
knowledge of a Greenwich Material Adverse Effect existing as at the
Agreement Date, which causes a material breach to exist on the Agreement
Date of a material Greenwich representation or warranty set forth in
Article IV hereof, and (y) Xxxxxx X. Xxxxxx, Xx., Xxxxxx X. Xxxxxx, Xx. or
Xxxxxx X. Xxxxxxx willfully and deliberately failed or refused to disclose
such Greenwich Material Adverse Effect to UNC, and (z) as a result of such
nondisclosed Greenwich Material Adverse Effect, Greenwich is unable to
consummate the Greenwich Financings contemplated by Section 6.21 hereof; or
(ii) after all conditions precedent to Greenwich's
obligation to consummate the Merger set forth in this Agreement, including
Article VII and VIII, including all Greenwich Financings, have been fully
performed or are capable of being fully performed, Xxxxxx X. Xxxxxx, Xx. or
Xxxxxx X. Xxxxxx, Xx. shall have elected not to vote their shares of
Greenwich Class A Stock in favor of the Merger and the transactions
contemplated hereby.
Section 11.2 Effect of Termination In the event of the termination
---------------------
of this Agreement and the Merger by either Greenwich or UNC, this Agreement
shall become void and there shall be no liability hereunder on the part of
Greenwich, Merger Subsidiary, or UNC or their respective officers or directors
except, in each case, as otherwise provided in Sections 11.3
59
and 12.1 hereof, which Sections shall survive any such termination and continue
in effect thereafter.
Section 11.3 Termination Payments and Expenses
---------------------------------
(a) If this Agreement is terminated:
(i) by Greenwich, pursuant to clauses (ii), (iii) or (iv)
of Section 11.1(d); or
(ii) by UNC, if any of the events set forth in Section
11.1(e) shall have occurred;
then UNC shall promptly pay to Greenwich the sum of $20 million.
(b) Each party hereto acknowledges that the agreements contained
in this Section 11.3 are an integral part of the transactions contemplated by
this Agreement and that, without these agreements, none of the parties hereto
would enter into this Agreement. Accordingly, if any party hereto fails to pay
any amounts pursuant to this Section 11.3, and, in order to obtain such payment,
legal action is commenced which results in a judgment therefor, the liable party
will pay the plaintiff's reasonable costs (including reasonable attorneys' fees)
in connection with such suit, together with interest computed on any amounts
determined pursuant to this Section 11.3 (computed from the date when such
amounts were due and payable pursuant to this Section 11.3) and such costs
(computed from the date or dates incurred) at the prime rate of interest
announced from time to time by Citibank, N.A. The parties' obligations pursuant
to this Section 11.3 will survive any termination of this Agreement.
(c) Except as provided for in Section 11.3(d), in the event that
Greenwich shall terminate this Agreement by reason of any of the events
specified in Section 11.1, none of the Greenwich Companies nor their Affiliates
shall have any liability or obligation to any of the UNC Companies or their
Affiliates under this Agreement, or otherwise.
(d) In the event that UNC shall be entitled to terminate this
Agreement by reason of the occurrence of the events contemplated by Section
11.1(h) hereof, then Greenwich shall promptly pay to UNC the sum of $20 million.
(e) The remedies of the respective parties set forth in this
Section 11.3 constitute full and complete liquidated damages and represent the
sole and exclusive remedies at law of a party electing to terminate this
Agreement pursuant to Section 11.3; provided, that nothing herein contained
--------
shall prevent a party entitled to seek specific performance of this Agreement
from applying to and obtaining from a court of competent jurisdiction such
equitable relief as such court may deem proper in the circumstances.
(f) Except as provided in this Section 11.3, all costs and
expenses incurred in connection with this Agreement shall be paid in accordance
with Section 12.1.
60
ARTICLE XI
MISCELLANEOUS
Section 12.1 Expenses Except as provided in Section 11.3, all costs
--------
and expenses incurred in connection with this Agreement, and the transactions
contemplated hereby and thereby shall be paid by the party incurring such
expenses.
Section 12.2 No Survival of Representations and Warranties The
---------------------------------------------
respective representations and warranties, obligations, covenants and agreements
of UNC, Greenwich and Merger Subsidiary contained herein or in any Exhibit or
Schedule, certificate or letter delivered pursuant hereto shall expire with, and
be terminated and extinguished by, the effectiveness of the Merger.
Section 12.3 Headings The descriptive headings of the several
--------
Articles and Sections of this Agreement are inserted for convenience only and do
not constitute a part of this Agreement.
Section 12.4 Notices All notices or other communications
-------
required hereunder shall be in writing and shall be deemed given on the date
delivered if delivered personally (including by reputable overnight courier), on
the date transmitted if sent by telecopy (which is confirmed) or 72 hours after
mailing if mailed by registered or certified mail (return receipt requested) to
the parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to Greenwich or Merger Subsidiary, to:
Greenwich Air Services, Inc.
0000 XX 00xx Xxxxxx
Xxxxx International Airport, Building 23
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Xx.,
Chairman and Chief Executive Officer
Telecopy: (000) 000-0000
with a copy to: Xxxxxxxxx Traurig Xxxxxxx Xxxxx Xxxxxx & Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
61
(b) if to UNC, to:
UNC Incorporated
000 Xxxxxxx Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxx X. Xxxxxxx, Chairman and Chief Executive
Officer
Telecopy: (000) 000-0000
with a copy to: Neuberger, Quinn, Gielen, Rubin & Gibber, P.A.,
Xxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
Section 12.5 Assignment This Agreement and all of the provisions
----------
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but neither this Agreement
nor any of the rights, interests, or obligations hereunder, shall be assigned by
any of the parties hereto without the prior written consent of the other
parties, except that Merger Subsidiary may assign all of its rights, interests
and obligations hereunder to Greenwich or to another wholly owned subsidiary of
Greenwich, provided that such Subsidiary agrees in writing to be bound by all of
the terms, conditions and provisions contained herein. Such assignment may be
effected by merging UNC with and into Greenwich simultaneously with or
subsequent to the Effective Time.
Section 12.6 Complete Agreement This Agreement, including the
------------------
schedules, exhibits and other writings referred to herein or delivered pursuant
hereto, and the Confidentiality Agreement together contain the entire
understanding of the parties with respect to the Merger and the related
transactions and supersede all prior arrangements or understandings with respect
thereto.
Section 12.7 Modifications, Amendments and Waivers At any time prior
-------------------------------------
to the Effective Time of the Merger (notwithstanding any stockholder approval),
if authorized by their respective Boards of Directors and to the extent
permitted by law, (i) the parties hereto may, by written agreement, modify,
amend or supplement any term or provision of this Agreement and (ii) any term or
provision of this Agreement may be waived by the party which is, or whose
stockholders are, entitled to the benefits thereof; provided, however, that
after this Agreement is adopted by UNC's stockholders, no such amendment or
modification shall be made which changes the shares of Greenwich Class B Stock
and cash into which UNC Common Stock and UNC Series B Preferred Stock is to be
converted as provided in this Agreement or which in any way materially adversely
affects the rights of such stockholders, without the further approval of such
stockholders. Any written instrument or agreement referred to in this paragraph
shall be validly and sufficiently authorized for the purposes of this Agreement
if signed on behalf of Greenwich, UNC and Merger Subsidiary by a person
authorized to sign this Agreement.
62
Section 12.8 Counterparts This Agreement may be executed in two or
------------
more counterparts all of which shall be considered one and the same agreement
and each of which shall be deemed an original.
Section 12.9 Governing Law This Agreement shall be governed by the
-------------
laws of the State of Delaware (regardless of the laws that might be applicable
under principles of conflicts of law) as to all matters, including but not
limited to matters of validity, construction, effect and performance.
Section 12.10 Accounting Terms All accounting terms used herein which
----------------
are not expressly defined in this Agreement shall have the respective meanings
given to them in accordance with GAAP.
Section 12.11 Severability If any term, provision, covenant or
------------
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void, unenforceable or against its regulatory
policy, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
[BALANCE OF THIS PAGE INTENTIONALLY BLANK]
63
IN WITNESS WHEREOF, Greenwich, Merger Subsidiary and UNC have caused this
Agreement to be signed by their respective officers hereunto duly authorized,
all as of the date first written above.
GREENWICH AIR SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
------------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Chairman and Chief Executive Officer
ATTEST:
CONDOR ACQUISITION CORPORATION
By:/s/ Xxxxxx X. Xxxxxx, Xx.
------------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Chairman and Chief Executive Officer
ATTEST:
UNC INCORPORATED
By:/s/ Xxx X. Xxxxxxx
------------------------------------------
Name: Xxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
ATTEST:
64
